[An introduction and guide to my series of posts “Corpora and the Second Amendment” is available here.]
The Originalism Blog has a guest post, by David Weisberg, taking issue with the conclusion in Dennis Baron’s Washington Post op-ed that newly available evidence of historical usage shows that in District of Columbia v. Heller, Justice Scalia misinterpreted the phrase keep and bear arms. That’s an issue that I wrote about yesterday (“The coming corpus-based reexamination of the Second Amendment“) and that I’m going to be dealing with in a series of posts over the next several weeks.
One of Weisberg’s arguments concerns a linguistic issue that I’m planning to address, and I think that Weisberg is mistaken. At the risk of getting out ahead of myself, I want to respond to Weisberg briefly now, with a more detailed explanation to come.
Weisberg says that although he agrees with Baron that Scalia’s opinion in Heller is wrong, he thinks that Baron has reached that conclusion for the wrong reason. “In particular,” Weisberg says, “[Baron] is plainly mistaken with regard to the definition of the transitive verb ‘bear,’ and he also provides an unsatisfactory interpretation of the Second Amendment as a whole.” I’m going to focus only on the first of those arguments:
The Oxford English Dictionary provides the following primary definition of the transitive verb “bear”: “I. To carry; with its transferred and fig. senses. 1. trans. To support the weight of (anything) whilst moving it from one place to another: to carry.” This definition, according to the OED, has been valid since before 1000 AD, and is first observed in Beowulf. Webster’s New Collegiate Dictionary (1981 ed.) provides the following primary definition of the verb “bear”: “1 a : to move while holding up and supporting”.
If a corpus linguistics analysis reveals that the phrase “bear arms” was almost always used around the time of the founding in a military context, would that change the primary meaning of the verb “bear,” which meaning has been in use since before 1000 AD? This question answers itself. Around the founding era, people in America were interested in questions of liberty, freedom from tyranny, rebellion and revolution. One would expect, during such times, that they would be talking and writing about “bearing arms” in a military context, rather than in the context of hunting or target-shooting. But the context does not change the meaning of the words, or, if it does, it was a change in meaning that apparently both the OED and Webster’s missed.
It is clear from both those definitions that it would be perfectly correct, albeit stilted and un-idiomatic, to say that people hunting rabbits bear arms. They of course are not bearing arms against rabbits in any sense, but that is not the language of the Second Amendment. Rabbit-hunters carry or support firearms while moving from place to place, so they are indeed bearing arms, unless, that is, former Justice Souter is correct and both the OED and Webster’s are incorrect regarding the meaning of the transitive verb “bear”. I’m betting against Justice Souter.
Before responding to Weisberg, I have a lexicographic observation. The OED’s definition of bear is roughly 140 years old, dates back to 1888. (The OED’s Second Edition, published a century later, consisted primarily of the contents of the First Edition, combined with the contents of the various supplements that had been published in the interim to add new words.) Therefore, the definition does not reflect any of the profound changes in lexicography that resulted from the introduction of computerized corpora—a development that, as it happens—took place only a few years before the publication of the OED’s Second Edition. The Webster‘s definition Weisberg cites predated those changes, too.
These changes in lexicography will play a big role in what I think is the correct analysis of bear arms. For more information about the changes you can read my recent article “A Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics,” or if you only have 15 minutes or so, you can read my blog post summarizing the article.
Weisberg frames the issue as relating to the meaning of the verb bear, and he argues that even if “the phrase ‘bear arms’ was almost always used around the time of the founding in a military context,” that would not “that change the primary meaning of the verb ‘bear,'” which he describes as meaning carry. That argument will undoubtedly strike most people as perfectly reasonable.
But what has been revealed by corpus linguistics (particularly corpus lexicography) is that Weisberg’s framing is wrong. The issue is not what bear means in isolation, it is what the phrase bear arms means. Because the meaning of a word as used in a particular context is very often affected by that context. So words are not necessarily the basic units of meaning. And it is entirely possible that in its most frequent use, bear arms was not synonymous to carry arms.
If you want to know why that is, though, I’m afraid you’ll have to I get around to the post that discusses the corpus data on this issue. If you can’t wait until then, you can read my article. If you don’t have time for that, you can read my blog post. If you have lots of time, you can download my article and start reading the sources that it cites.
I’ll leave you with another lexicographic observation. Although the OED’s definition of bear is 140 years old, its definition of arm as a noun was updated in March of this year. (Wow, thanks OED!) And I’m confident that the OED’s current lexicographic practices take account of what is widely known as the corpus revolution in lexicography. All of which is by way of introduction to the following, which is the OED’s current definition of bear arms, in its entirety:
a. to bear arms.
(a) To serve as a soldier; to fight (for a country, cause, etc.). [After Anglo-Norman and Old French, Middle French porter armes (c1100 in this sense; French porter armes).]
c1325 (▸c1300) Chron. Robert of Gloucester (Calig.) 11788 Alle þat armes bere Aȝen þe king in þe worre.
1477 Caxton tr. R. Le Fèvre Hist. Jason (1913) 36 All they that were of age to bere armes shold be redy on the morn erly for to goo..fighte with their enemyes.
1549 W. Thomas Hist. Italie f. 103v Candia again rebelled. Against whom a newe armie was prepared..for all theim that shoulde beare armes in that enterprise.
a1593 Marlowe Edward II (1594) sig. H3 Vilde wretch, and why hast thou of all vnkinde, Borne armes against thy brother?
1601 B. Jonson Every Man in his Humor ii. iii. sig. E4 The most fatall & dangerous exploit, that euer I was rang’d in, since I first bore armes.
1691 J. Hartcliffe Treat. Virtues 121 Neither among the old Germans did any one bear Arms until he was honored with a Spear and Target in their State-Assemblys.
1774 Ld. Kames Sketches Hist. Man II. ii. ix. 13 In Switzerland..every male who can bear arms is regimented, and subjected to military discipline.
1795 Sewel’s Hist. Quakers (ed. 3) I. Pref. 7 Bearing arms and resisting the wicked by fighting, they always have counted unlawful.
1824 F. Plowden Human Subordination 153 The removal of all disabilities for Catholics to bear arms.
1889 N.Y. Times 13 Oct. 4 There is scarcely a large village that has not some memorial of those of its inhabitants who bore arms in the war.
1945 P. Gallico in Esquire July 48/2 The gentlest, most decent, tenderhearted and humane men who ever bore arms in organized warfare.
2011 Irish Times 21 May b13/1 The so-called white-feather men who..refuse to bear arms for their country.
(b) Heraldry. To wear or display arms ( 5a). Now chiefly hist. [Compare Anglo-Norman and Middle French porter armes (mid 14th cent. or earlier in this sense).]
1442 Rolls of Parl.: Henry VI (Electronic ed.) Parl. Jan. 1442 §32. m. 3 The said carrakes, aryved and entred the port of the isle of Rodes..beryng the armes of the hospitall of Seint John Jerusalem.
1566 W. Painter Palace of Pleasure I. xlv. f. 245v I am for euer hereafter vtterly vnworthy to beare armes, or to haue ye honorable title of a Knight.
a1641 R. Montagu Acts & Monuments (1642) viii. 489 Advanced to the Title of a Lord or Baron; permitted to beare Arms.
1738 F. Wise Let. to Dr. Mead 27 The Emperor of Germany is sometimes stiled The Eagle, and the King of France The Lilly, from the Arms they bear.
1849 Gentleman’s Mag. July 33/1 The immediate question to be solved would be, whether his grandfather was entitled to bear arms.
1904 Geneal. Mag. Feb. 442 Edward of Angouléme..probably never bore arms.
2009 K. Coombs in K. Sloan European Visions iii. 80/2 Any person bearing arms was by definition ‘gentle’.
Update: I should have kept scrolling after I copied the entry for bear arms that I quoted above. Had I done so, I would have found the following entry for “right to bear arms”:
(a) Heraldry. [Omitted]
(b) orig. and chiefly U.S. The right to keep or use arms (sense 2b); the right to keep or use firearms, esp. for self-defence or to protect one’s community or State. The right to bear arms is codified in the Second Amendment of the United States constitution: ‘A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.’ This is one of the best known and most controversial parts of the constitution, and remains the subject of debate between opposing lobbyists.
1776 Constit. Common-wealth Pennsylvania 9 People have the right to bear arms for the defence of themselves and the State.
1792 E. Ryves tr. J. V. Delacroix Rev. Constit. Principal States Europe II. 551 The people have a right to bear arms; but no standing armies shall be maintained in time of peace.
1841 E. A. Theller Canada 1837–8 xix. 310 The right to bear arms, and the right of speech, is an American right.
1879 Churchman 16 Aug. 171/1 Your right to bear arms does not include the right to make a shooting-gallery of another man’s private parlor.
1921 Bankers Mag. Mar. 377 The individual citizen is again demanding the right to bear arms—a right which..the Constitution of the United States declares ‘shall not be infringed’.
1980 N.Y. Times 14 Dec. nj8/1 Opposition to gun controls based on the constitutional right to bear arms.
2007 Chicago Defender 19 Sept. 3/3 We need to value our children more than we value our right to bear arms.
It seems reasonable to assume that this entry, being part of the revision that was released earlier this year, was drafted after Heller was decided, and that it therefore took account of Heller‘s holding in the drafting of the definition. If that assumption is correct, this entry is irrelevant for the purpose of my analysis. And if the entry wasn’t influenced by Heller, only one of the seven example sentences provides any support for the language “esp. for self-defence or to protect one’s community or State,” and in the remaining example, bear arms is explicitly modified by the prepositional phrase for the defence of themselves and the State.
[Cross-posted on Language Log.]