As most of us know, “Natural Born Citizen” appears only ONCE in the Constitution, just as does the 4-word phrase, “keep and bear arms.” In the “DC v Heller” decision, I’m struck at how the SCOTUS spends CONSIDERABLE effort to truly understand the “definitions” missing in the Constitution with the phrase “keep and bear arms”. Here’s a snippet of the SCOTUS rationale (from http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf , starting on pg 10):
b. “Keep and bear Arms.” We move now from the holder of the right—“the people”—to the substance of the right: “to keep and bear Arms.”
Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).
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Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
We turn to the phrases “keep arms” and “bear arms.”Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” Johnson 1095. Webster defined it as “[t]o hold; to retain in one’s power or possession.” No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.”
The phrase “keep arms” was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to “keep Arms” as an individual right unconnected with militia service. William Blackstone, for example, wrote that Catholics convicted of not attending service in the Church of England suffered certain penalties, one of which was that they were not permitted to “keep arms in their houses.” 4 Commentaries on the Laws of England 55 (1769) (hereinafter Blackstone); see also 1 W. & M., c. 15, §4, in 3 Eng. Stat. at Large 422 (1689) (“[N]o Papist . . . shall or may have or keep in his House . . . any Arms . . . ”); 1 Hawkins, Treatise on the Pleas of the Crown 26 (1771) (similar). Petitioners point to militia laws of the founding period that required militia members to “keep” arms in connection with militia service, and they conclude from this that the phrase “keep Arms” has a militia-related connotation. See Brief for Petitioners 16– 17 (citing laws of Delaware, New Jersey, and Virginia). This is rather like saying that, since there are many statutes that authorize aggrieved employees to “file complaints” with federal agencies, the phrase “file complaints” has an employment-related connotation. “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.
10 See J. Brydall, Privilegia Magnatud apud Anglos 14 (1704) (Privilege XXXIII) (“In the 21st Year of King Edward the Third, a Proclamation Issued, that no Person should bear any Arms within London, and the Suburbs”); J. Bond, A Compleat Guide to Justices of the Peace 43 (1707) (“Sheriffs, and all other Officers in executing their Offices, and all other persons pursuing Hu[e] and Cry may lawfully bear arms”); 1An Abridgment of the Public Statutes in Force and Use Relative to Scotland (1755) (entry for “Arms”: “And if any person above described shall have in his custody, use, or bear arms, being thereof convicted before one justice of peace, or other judge competent, summarily, he shall for the first offense forfeit all such arms” (quoting 1 Geo. 1, c. 54, §1)); Statute Law of Scotland Abridged 132–133 (2d ed. 1769) (“Acts for disarming the highlands” but “exempting those who have particular licenses to bear arms”); E. de Vattel, The Law of Nations, or, Principles of the Law of Nature 144 (1792) (“Since custom has allowed persons of rank and gentlemen of the army to bear arms in time of peace, strict care should be taken that none but these should be allowed to wear swords”); E. Roche, Proceedings of a Court-Martial, Held at the Council-Chamber, in the City of Cork 3 (1798) (charge VI: “With having held traitorous conferences, and with having conspired, with the like intent, for the purpose of attacking and despoiling of the arms of several of the King’s subjects, qualified by law to bear arms”); C. Humphreys, A Compendium of the Common Law in force in Kentucky 482 (1822) (“[I]n this country the constitution guaranties to all persons the right to bear arms; then it can only be a crime to exercise this right in such a manner, as to terrify people unnecessarily”).
Toward the end of the section on historical reference on “Keep and Bear Arms,” note the SCOTUS ruling states: “From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century.”
I suspect we will see a similar Constructionist “natural meaning” interpretation by the SCOTUS on “Natural Born Citizen” once a case gets there that has the Standing they need. Even though the Left tries to reinvent the meaning of “Natural Born Citizen,” the Framers’ intentions are obvious.
I concur.
Note that it was a 5-4 decision with SCALIA, ROBERTS, KENNEDY, THOMAS, and ALITO in the majority.
I don’t think the decision against bo on the Eligibility issue will be that close.
Also note BO’s PR people have put out several stories about the lawsuits in the past few days.
That tells me that they are very concerned about a case that Berg has filed or is about to file.
Great research as usual. I am not a SCOTUS scholar or attorney but I realize they spend a lot of time on the founders intent or the writings of that period by the Framers.
It appears to me that Justice Scalia is the lion on the Court who often does some of the heaviest intellectual “lifting.” Someone mention here that Scalia supposedly said at a college speech that a candidate in a case involving an election dispute would have “standing” i.e. Alan Keyes to name one person.
We need to see if he did say that or find evidence that a candidate has standing. Did Leo point that out in referencing Bush v. Gore?
I think the harder part may be proving the
“harm.” Are the big issues “standing” and “harm?”