Corpora and the Second Amendment: Heller

[An introduction and guide to my series of posts “Corpora and the Second Amendment” is available here.]

Before I get into the corpus data (next post, I promise), I want to set the stage by talking a bit about the Heller decision. Since the purpose of this series of posts is to show the ways in which the corpus data casts doubt on the Supreme Court’s interpretation of keep and bear arms, I’m going to review the parts of the decision that are most relevant to that purpose. I’m also going to point out several ways in which I think the Court’s linguistic analysis is flawed even without considering the corpus data. Although that wasn’t part of my plans when I began these posts, this project has led me to read Heller more closely than I had done before and therefore to see flaws that had previously escaped my notice. And I think that being aware of those flaws will be important when the time comes to decide whether  and to what extent the data undermines Heller‘s analysis.

The Second Amendment’s structure

As is well known (and as has been discussed previously on Language Log here, here, and here), the Second Amendment is unusual in that it is divided into two distinct parts, which the Court in Heller called the “prefatory clause” and the “operative clause”:

Prefatory clause: “A well regulated Militia, being necessary to the security of a free State,”

Operative clause: “the right of the people to keep and bear Arms shall not be infringed.”

The Court wrote that “the former does not limit the latter grammatically, but rather announces a purpose.” Thus, “the Amendment could be rephrased, ‘Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.'”

The opinion continued, “Logic demands that there be a link between the stated purpose and the command,” and the need for such a connection “may cause a prefatory clause to resolve an ambiguity in the operative clause.” But other than serving that function, “a prefatory clause does not limit or expand the scope of the operative clause.” Note that this conclusion was driven by legal considerations, not by considerations of grammar or semantics:

As I understand the opinion, the Court ultimately found the operative clause to be unambiguous, so one might think that there was no need for it to decide what the prefatory clause means. After all, with no ambiguity in the operative clause, what work was there for the prefatory clause to do? But the Court nevertheless said that before considering what limitations there might be on the right to keep and bear arms, it “must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.” This move may have been rhetorically motivated, because it gave the Court the opportunity to find the two clauses to be perfectly congruent, thereby providing additional persuasive force in support of its interpretation.

Be that as it may, what makes the Court’s discussion of the prefatory clause relevant here is its statement that if the operative clause is found to be ambiguous, the prefatory clause may be consulted for the purpose of resolving the ambiguity. So in order for my analysis here to justify a reexamination of Heller’s legal conclusions, it doesn’t have to decisively refute the Court’s interpretation of keep and bear arms; rather, all that is required is to show that that phrase is ambiguous.

keep

The Heller majority didn’t spend a lot of time discussing the word keep, and neither will I (at least not in this post). Here’s what the opini0n said:

[Samuel] Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” 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.”

I don’t have any serious disagreement with that, so I’ll reserve comment for now.

bear

The Court’s discussion of bear begins by saying that “at the time of the founding, as now, to ‘bear’ meant to ‘carry.'” In support of that statement, the opini0n cites dictionaries written by Samuel Johnson (1755), Thomas Sheridan (1796), and Noah Webster (1828), as well as the second edition of the OED, which consisted mainly of the content of the first edition combined with the contents of the supplements that had been published in the interim.

Based on the corpus data, together with lexicographic research that was (as far as I know) unavailable when Heller was decided, it appears that conclusion that bear meant ‘carry’ was at best a serious oversimplification. I will explain why I say that, in my post(s) dealing specifically with bear.

arms

For the Heller majority, the meaning of arms was clear:

The 18th-century meaning [of arms] is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “[w]eapons of offence, or armour of defence.” 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.” See also N. Webster, American Dictionary of the English Language (1828) (similar).

This summary is accurate as far as it goes, but as with the conclusion that bear means ‘carry,’ it’s a significant oversimplification. The two general dictionaries cited by the Court—Johnson’s and Webster’s—both reflect a range of uses that are related to but different from the one described in the definitions cited by the Court:

Johnson:

2. A state of hostility.

Sir Edward Courtney, and the haughty prelate,
With many more confed’rates, are in arms.
Shakes. R. III.

3. War in general.

Arms and the man I sing. Dryd. Virgil.

Him Paris follow’d to the dire alarms,
Both breathing slaughter, both resolv’d in arms.
Pope’s Iliad.

4. Action; the act of taking arms.

Up rose the victor angels, and to arms
The matin trumpet sung.
Milton’s Paradise Lost, b. vi.

Webster:

War; hostility.

Arms and the man I sing.    Dryden

To be in arms to be in a state of hostility, or in a military life.

To arms is a phrase which denotes a taking arms for war or hostility; particularly, a summoning to war.

To take arms is to arm for attack or defense.

Bred to arms denotes that a person has been educated to the profession of a soldier.

The reason that these additional uses weren’t mentioned was undoubtedly that they were  thought to be irrelevant. But while that belief is understandable, it involves a certain amount of question-begging. I think it makes more sense to at least be aware of the full range of related founding-era uses, and to be open to the possibility that the some of those uses might have colored the way in which keep and bear arms was understood. I’ll have more to say about this issue in my posts discussing arms and bear arms.

bear arms

After saying that bear meant carry, the Heller majority said that as used in bear arms, “the term has a meaning that refers to carrying for a particular purpose—confrontation.”

In explaining the basis for that conclusion, the Court began, not by looking at evidence of founding-era usage or 18th-century dictionary definitions, as would normally be expected of an originalist analysis, but by quoting something that Justice Ginsburg said in 1998—more than 200 years after the Second Amendment’s ratification:

In Muscarello v. United States, in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice GINSBURG wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.'” (dissenting opinion) (quoting Black’s Law Dictionary). We think that Justice GINSBURG accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.

The Court went on to say that “this natural meaning was also the meaning that ‘bear arms’ had in the 18th century.” It based that conclusion on the fact (as the majority saw it) that “in numerous instances, ‘bear arms’ was unambiguously used to refer to the carrying of weapons outside of an organized militia.” The only examples of such uses that were given were provisions of nine state constitutions that “enshrined a right of citizens to ‘bear arms in defense of themselves and the state’ or ‘bear arms in defense of himself and the state.'” According to the Court, those provisions made it clear that “‘bear arms’ did not refer only to carrying a weapon in an organized military unit.”

There are several points that are worth noting about what Court says.

First, in concluding that these state constitutional provisions unambiguously protected the carrying of weapons outside of an organized militia,” the Court was relying on the fact that in each of those provisions, the phrase bear arms was modified by the prepositional phrase in defense of themselves [or himself] and the state. Thus, the Court was assuming that the use of bear arms in such a context was relevant to determining the meaning of bear arms when it is used without that kind of modification.

But that assumption is at odds with what the Court said about what it called the “idiomatic meaning” of bear arms (namely, “‘to serve as a soldier, do military service, fight’ or ‘to wage war'”). While the Court recognized that it was possible to understand bear arms in that idiomatic sense, it said that in the examples that it had been shown, the phrase “unequivocally bore that idiomatic meaning only when followed by the preposition ‘against,’ which was in turn followed by the target of the hostilities” 1(emphasis by the Court). “Without the proposition,” the Court said, “‘bear arms’ normally meant (as it continues to mean today) what Justice Ginbsburg’s opinion in Muscarello said.” But for purposes of evaluating the Court’s analysis, there is no relevant difference between bear arms against X on the one hand and bear arms in defense of X on the other. If the presence of a modifying prepositional phrase was relevant as to one of the two constructions, it was equally relevant as to the other. So on the important issue of the meaning of bear arms as used in the Second Amendment, the Court’s  analysis is at war with itself.

Second, even putting aside this inconsistency, it is not clear that the Court’s interpretation of in defense of themselves [or himself] is correct. For the Heller majority, the phrase had to do with the right of individuals to defend themselves, without regard to whether they are doing so in a military context. And while that’s certainly one possible reading, it seems to me that different interpretations are also possible. On one alternative reading, the right to bear arms in “defense of oneself or of the state” would mean the right to engage in warlike activities, but only for the purpose of defending against an attack, and not for the purpose of being the aggressor. And if I’m right in thinking that this reading is a reasonable one, that would invalidate the Court’s premise that in the state constitutional provisions it cited,  bear arms was “unambiguously used to refer to the carrying of weapons outside of an organized militia.”

Finally, even if the issues I’ve raised are put aside, the Court’s examples don’t do the work that is needed, if they are to show that keep and bear arms unambiguously means what the Court says it does. Those examples establish only that it was possible to use the phrase in a way that is unrelated to an organized militia, not that it was ordinarily used that way. But in his famous dissent in Smith v. United States, Scalia criticized the majority for failing “to grasp the distinction between how a word can be used and how it ordinarily is used” (emphasis by Scalia). The Scalia of Heller needs to have a conversation with the Scalia of Smith.

The points that I’ve discussed set out what I think is the core of the Heller majority’s argument about the phrase bear arms. While that’s not all that Heller says on that issue, the remainder of the discussion is devoted to responding to arguments that had been made by the District of Columbia, the linguists who had submitted an amicus brief, and the dissenting justices. I’m not going to address those parts of the decision here, but I may talk about some of them in a future post.

keep and bear arms

The Heller decision doesn’t have much to say about the phrase keep and bear arms beyond what it says about its constituent parts, keep [arms] and bear arms. Of what it does say, what’s relevant to this series of posts is the argument that bear arms has to be interpreted as having the “natural meaning” that is discussed above (carrying weapons for the purpose of confrontation) rather than the idiomatic meaning having to do with military activities.

The basis for that argument is that interpreting bear arms as having its idiomatic sense, would render keep and bear Arms incoherent, with arms having “two different meanings at once.” Specifically, the majority argued that in its role as the direct object of keep, arms would mean ‘weapons,’ while in its role as part of the construction bear arms, it would be part of an idiom and therefore wouldn’t have a separate meaning of its own. And that, Justice Scalia wrote for the Court, “would be rather like saying ‘He filled and kicked the bucket’ to mean ‘He filled the bucket and died.'” To which he added an editorial comment: “Grotesque.”

This argument has more substance than the others that I’ve discussed in this post, and on its face it seems reasonable. Nevertheless, there is a cluster of facts arising from the corpus data, etymology, and language history, whose combined effect is to raise what I think are significant doubts about the argument’s validity.

But I’m afraid you’ll have to wait to find out what I’m talking about. This post is long enough as it is, and I  want to finally start writing about the corpus data. So further discussion of keep and bear arms will have to wait.

[A note for the lawyers in the audience: I haven’t followed the normal conventions for indicating nonsubstantive changes to quoted material, such as changes in capitalization and punctuation to make the quote fit into the text as seamlessly as possible. I have also omitted citations and citation details without noting the omissions.]

[Cross-posted on Language Log.]

 

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