An introduction and guide to my series of posts “Corpora and the Second Amendment” is available here. The corpus data that is discussed can be downloaded here. That link will take you to a shared folder in Dropbox. Important: Use the “Download” button at the top right of the screen.
COFEA and COEME: lawcorpus.byu.edu.
This post will complete my analysis of the Second Amendment—for now. So far, I’ve focused almost entirely on the Second Amendment’s specification of the right that it protected—the right of the people, to keep and bear Arms—and have said little or nothing about well regulated or militia. That doesn’t mean I have nothing to say about those expressions, it just means that I’ll defer that discussion until sometime in the future.
Meanwhile, here in the present, this post will try to answer the question that I raised in the last post: whether the Supreme Court was right in saying that the fact that bear arms appears in the phrase keep and bear arms means that bear arms couldn’t have been used in its idiomatic military sense:
[If bear arms were given its idiomatic meaning,] the phrase “keep and bear arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.
It’s true that interpreting bear arms as having been used idiomatically would mean that arms conveys two different meanings (a phenomenon known as copredication). But as explained in my last post, that doesn’t rule out such an interpretation. Now, in this post, I’ll argue that interpreting bear arms in that way is more than just a theoretical possibility. I’ll discuss evidence that makes it reasonable to think keep and bear arms was intended to convey such a meaning, and that such an interpretation would have been more likely than the alternative.
MOST OF THIS POST will be devoted to looking at late-18th century instances of bear arms that I read as having been intended to convey a meaning in which arms would mean two things at once—in other words, in a way involving COPREDICATION. I’ll argue that those uses are evidence that the bear arms in the Second Amendment could have been used and understood as an idiom, and therefore could have been copredicative.
Note that I’m not suggesting that the fact that a phrase is used in a certain way necessarily means that it will be understood that way. People sometimes speak and write in such a way that their intended meaning doesn’t get across. But from what I can tell, such cases are the exception, not the rule. Therefore I think it’s reasonable to assume that instances in which bear arms was used copredicatively are evidence that they could have been understood copredicatively.
However, there’s a complication that I need to address up front. Although copredication sometimes seems perfectly natural (Lunch was delicious, but it took a long time.), other times it generates a sense of oddity that is the distinguishing characteristic of zeugma. (The farmers grew potatoes and bored). If a sentence is ambiguous in such a way that one reading would result in zeugma while the other wouldn’t, might it be more likely that the sentence would be understood as conveying the nonzeugmatic meaning? If so, maybe that should be taken into account when we try to decide whether a particular 18th-century use of bear arms is likely to have been understood copredicatively.
I don’t know the answer to the question; I don’t even know if it’s possible to make any generalizations about this kind of issue. And in any case, I tend to doubt that we can make reliable judgments about whether an interpretation would have seemed zeugmatic to people living 230 years ago. It seems to me that making such a judgment would require familiarity with that period’s linguistic environment at a degree of richness and detail that we can’t possibly attain.
Therefore, in considering the uses that I’ll be discussing, I won’t try to decide whether a copredicative reading would have seemed zeugmatic and if so whether that would have made a difference in how it would have been understood. I’ll have more to say at the end of this post about the consequences of that decision for my analysis.
MY DISCUSSION of the data will begin with 18th-century uses of bear arms that were discussed in Heller. Three of them come from state constitutions that were adopted during the period 1776 through 1792, and the fourth is one of the proposals that was made for amending the federal constitution to protect the right to bear arms.
The first use comes from the Massachusetts Constitution of 1780:
(1) The people have a right to keep and to bear arms for the common defence. [Line 503h.]
This provision serves as an ideal test case for our purposes. Not only does it include the exact language we are concerned with ([the] right to keep and bear arms), thereby presenting the precise issue we’re concerned with, but it modifies that phrase by adding a purposive modifier (for the common defence) that provides a cue increasing the likelihood that bear arms would be understood in its idiomatic military sense. Heller all but admits that the modifier would have had that effect: “[If] one gives a narrow meaning to the phrase ‘common defence’ this [provision] can be thought to limit the right to the bearing of arms in a state-organized military force.”
Under that interpretation, arms would be co-predicative in exactly the same way that it would be in the Second Amendment. It would, as Heller put it, “have two different meanings at once: ‘weapons’ (as the object of ‘keep’) and (as the object of ‘bear) one-half of an idiom.” Yet Heller said nothing to suggest that the Massachusetts provision couldn’t have been understood that way. On the contrary, the court read the provision as being amenable to an interpretation no different from the one it refused to apply to the Second Amendment.
The next three uses present a variation on the theme that we’ve just seen:
(2) The people have a/the right to bear arms for the defence of themselves and the state. [Constitutions of Pennsylvania (1776) and Vermont (1777).]
(3) That the right of the citizens to bear arms in defense of themselves and the State shall not be questioned.” [Constitution of Kentucky (1792).]
(4) That the people have a right to bear arms for the defence of themselves and their own State, or the United States, or for the purpose of killing game. [Pennsylvania Antifederalist proposal for a Bill of Rights.]
While these provisions protect the only the right to bear arms, not the right to keep and bear arms, they can be read in a way that would render bear arms copredicative. That possibility results from the fact that in each provision, the prepositional phrase modifying bear arms specifies more than one purpose for which arms may be borne:
(2′) bear arms for the defence of themselves and the state
(3′) bear arms in defense of themselves and the State
(4′) bear arms for the defence of themselves and their own State, or the United States, or for the purpose of killing game
Just as bear arms is likely to be understood in its idiomatic military sense when it appears in the phrase bear arms for the common defence, it is likely to be understood that way when it is part of bear arms for the defence of…the state, or of the United States. And again, Heller recognizes that a provision phrased this way “could plausibly be read to support only a right to bear arms in a militia[.]’”
But Heller interpreted the right [of the people] to bear arms in defence of themselves as extending to acts unrelated to the military. Although I don’t think that’s the only reasonable interpretation, I’ll give the court the benefit of the doubt for purposes of this discussion, because doing so exposes an internal inconsistency in Heller’s analysis. And in any case, I agree with the court that the right to bear arms…for the purpose of killing game wouldn’t have been understood as being limited to killing game for military purposes.
The point is that under Heller’s reasoning, bear arms in (2)-(4) can reasonably be interpreted as having been used idiomatically with respect to bearing arms in defense of the state or of the United States, while being understood literally with respect to bearing arms for purposes of personal self-defense or killing game. The uses in (2)-(4) are similar in that respect to keep and bear arms as used in the Second Amendment, yet Heller rejected the copredicational interpretation with respect to the Second Amendment while accepting it with respect to the provisions in (2)-(4).
I’LL TURN NOW to several additional uses of bear arms, all of which I think involved copredication similar to the copredication associated with a reading of keep and bear arms in which bear arms is understood idiomatically. I’ve divided these into two groups: (5)-(6) and (7)-(9).
(5) and (6) are grouped together because each one includes a use of bear arms and one or more instances of the pattern VERB+them/their, with them and their deriving their meaning from their antecedent, arms:
(5) manifested the most ardent desire of learning the art of war; and every individual who could bear arms, was most assiduous in procuring them, and learning their exercise. [Lines 268, 503g.]
(6) Every man able to bear arms, is anxious to carry them, since on his individual force, depend both his personal safety, and the respect paid [Lines 218, 503e.]
In both of these lines, I interpret bear arms as being idiomatic and VERB+them (or, in the case of (5), at least one of the Corpora and the Second Amendment: “keep and bear arms” (Part 2) thems) as being literal. If those judgments are correct, then in each case arms is used copredicatively, having one meaning as part of bear arms and a different meaning as an implicit part of VERB+arms.
My interpretation of bear arms as idiomatic is based on one general factor, which will apply also to (7)-(9), and also on factors specific to the context in which each chunk of text appears.
The general factor will be pretty obvious from my previous posts: the corpus data for bear arms is overwhelmingly dominated by idiomatic uses, and by the same token, literal uses are few and far between. All else being equal, one would expect a given use of a word to be understood as conveying the contextually appropriate sense that is most frequent. As we’ll see when we look at more of the context in which (5) and (6) are embedded, we’ll see that the idiomatic use is indeed contextually appropriate.
The expanded version of (5) is below. The source is A Concise and Impartial History of the American Revolution (1795), by John Lendrum (Google Books), and the passage describes events in 1774, with the colonists becoming increasingly at odds with Britain, and with British troops being sent to Boston:
(5′) These messengers were enjoined to inform the town’s people, that if they should be so pusillanimous as to make a surrender of their liberties, the province would not think itself bound by such examples; and that Britain, by breaking their original charter, had annulled the contract subsisting between them, and left them to act as they thought proper.
The people in every other respect manifested their inflexible determination to adhere to the plan they had so long followed. …. Every where they manifested the most ardent desire of learning the art of war; and every individual who could bear arms, was most assiduous in procuring them, and learning their exercise. [Lines 268, 503g.]
The context in which bear arms appears obviously has to do with warfare and the military, which supports the notion that bear arms was used in its idiomatic sense and makes it more likely that it would have been understood in the same way.
In addition, (5) was one of the 157 concordance lines in which bear arms was used in phrases denoting or otherwise referring to the ability of some person or group of people to bear arms. As you’ll recall from one of my earlier posts, I categorized all those lines as using bear arms idiomatically.
Of course, my decisions about how to categorize the other 156 lines doesn’t necessarily determine how to interpret the 157th, but I do think they are relevant. Their relevance arises out of the contrast between this data and the data on carry arms. Category 1a of the carry arms data consists of 84 instances of carry arms being used to denote the physical carrying of weapons, and only three of them (3.5% of the total) made any reference to anyone’s ability or inability to carry weapons. In contrast, the concordance lines in the ability-to-bear-arms category represented roughly 30% of the relevant instances of bear arms.
That difference is striking, and one possible way to account for it would be to say that the ability or inability to serve in the military or fight in a war was socially important, and therefore a topic worth commenting on, the ability to physically carry weapons had no comparable significance—maybe it was taken for granted—and wasn’t mentioned much. I don’t know whether that’s true (is there a social historian of the 18th century in the house?), but it seems reasonable and arguably lends at least a little weight to the suggestion that bear arms in (5) was used in its idiomatic sense.
Also contributing to the likelihood of an idiomatic interpretation is the first part of the sentence in which bear arms appears: Every where they manifested the most ardent desire of learning the art of war[.] The remainder of the sentence (every individual who could bear arms, was most assiduous in procuring them, and learning their exercise) could reasonably have been understood as elaborating on the assertion that people wanted to learn the art of war. The reference to learning the art of war would therefore have pushed the idiomatic meaning of bear arms even more to the foreground than it would otherwise have been.
Considering all these factors together, it seems extremely likely that bear arms in (5) was used idiomatically, with the intended meaning being something like ‘serve as a soldier.’
In contrast, it is likely that procuring them [= procuring arms] was meant literally. I looked in the corpus data for evidence that procure arms had an idiomatic meaning, and I found none. Specifically, I downloaded and reviewed every instance of the noun arms appearing within four words of any form of the verb procure. After weeding out duplicates and uses that were clearly irrelevant (e.g., procure a cessation of Arms), there remained 162 concordance lines, and in none of them was procure arms used as an idiom.
There is still one more part of (5) that is potentially relevant here: every individual who could bear arms, was most assiduous in … learning their exercise. I’m going to skip over it, though, because I can’t decide whether it’s literal or idiomatic—or maybe both at once.
Assuming my interpretation of (5) is correct, the use of bear arms in (5) is analogous to the use of bear arms in the Second Amendment (under my interpretation): a single use of arms functions both as both part of an idiom and (indirectly) as the direct object of another verb. The analogy is imperfect, as suggested by the “indirectly” in the previous sentence. While arms is the syntactic direct object of keep in keep arms, the syntactic direct object of procure in them is them. But them has almost no semantic content of its own; its contribution to the meaning of procure them is in effect to channel the meaning of its antecedent—arms.
I’ll move on now to (6), which is similar to (5) in that bear arms appears as part of a phrase referring to men who were “able to bear arms.” It is repeated below, along with some of the context that preceded and followed it, all of which was part of a discussion regarding “the Turkmen, or Turcomen, [who] are of those Tartar hordes, who … emigrated from the Eastward of the Caspian sea, and spread themselves over the vast plains of America and Asia-Minor”:
(6′) Each of their camps acknowledges a chief, whose power is not determined by fixed laws, but governed by custom and circumstances. It is rarely abused, because the society is compact, and the nature of their situation maintains sufficient equality among its members. Every man able to bear arms, is anxious to carry them, since on his individual force, depend both his personal safety, and the respect paid him by his companions.
All their property consists in cattle, that is camels, buffaloes, goats, and especially sheep. They live on milk, butter, and meat, which are in great abundance among them; and the surplus of which they sell in the towns, and the neighbouring country. In return, they take arms, clothes, money, and corn.… As for the men, their whole occupation consists in smoking, and looking after their flocks. Perpetually on horseback with their lances on their shoulders, their crooked sabres by their sides, and their pistols in their belts; they are expert horsemen, and indefatigable soldiers. [Lines 218, 503e; Google Books.]
Unlike (5), the text preceding the boldfaced sentence doesn’t establish a military context. Nevertheless, as I explain below, I think that the context provided by the boldfaced sentence itself and by the last sentence in this excerpt suggests that bear arms was used idiomatically and that carry arms was used literally.
My approach to this excerpt starts with carry them rather than bear them. There are two aspects of the context that seem to me to suggest that carry them was used literally, despite the fact that carry arms was sometimes used idiomatically to convey much the same military sense as the idiomatic bear arms. The first is the statement that “every man able to bear arms is anxious to carry them” is immediately followed by an explanation for that eagerness: “on his individual force, depend both his personal safety, and the respect paid him by his companions.” That makes perfect sense an explanation for wanting to carry weapons, but much less so as an explanation for wanting to be a soldier or engage in combat.
Further evidence that carry arms was used literally is found in the final sentence of the excerpt, which refers the male Turkmens as carrying weapons with them all the time: they were “perpetually on horseback with their lances on their shoulders, their crooked sabres by their sides, and their pistols in their belts[.]”
Turning now to the use in (6) of bear arms, my conclusion that it was used idiomatically is based on two contextual factors (in addition to the fact that bear arms occurs in able to bear arms). One is that the last sentence in the extended excerpt I’ve quoted describes the Turkmen males as “indefatigable soldiers.”
The second contextual factor has to do with the contrast between bear arms on the one hand and carry them on the other. It seems more likely to me that if the author’s intention had been to write about Turcomen males who were able to carry weapons in the literal sense, he would have used able to carry arms rather than able to bear arms, and if he didn’t want to repeat carry, he could have written anxious to do so instead of anxious to carry them. I realize that as factors go, that one isn’t especially weighty, but that doesn’t mean that it’s weightless.
All in all, the evidence supporting my interpretation of (6) isn’t as strong as the evidence as to (5). Nevertheless, seeing no contextual evidence that I think would point toward a different conclusion, I think the interpretation I’ve advanced is the more likely one. And as with (5), if that interpretation is correct, (6) provides another analogy supporting the reasonableness of interpreting bear arms in keep and bear arms as having been used idiomatically.
The final group of concordance lines that I’ll discuss here consists of these:
(7) be placed in men who are, conscientious in this respect? or what justice can there be in compelling them to bear arms, when, according to their religious principles, they would rather die than use them? [Line 503(b).]
(8) The wide extent of country might very possibly contain a million of warriors, as all who were of age to bear arms were of a temper to use them. [Line 503d.]
(9) But when the members of communities were permitted to bear arms, and were trained to the use of these, this in some degree supplied [= made up for (OED)] the first defect, and [Line 503f.]
In discussing these three lines, I’ll deal with all of them together with respect to their use bear arms. Then I’ll deal with each one separately with respect to how I think use them was used.
The concordance line in (7) comes from the Congressional debate on proposed amendments to the Constitution in the period immediately after the Constitution was ratified—part of the process that ultimately resulted in the Bill of Rights. One of the proposed amendments was to add the following to the provision protecting the right to bear arms: “No person religiously scrupulous shall be compelled to bear arms.” Here is the context in which (7) appears in that debate:
(7′) Mr. Boudinot thought the provision in the clause, or something similar to it, was necessary. Can any dependence, said he, be placed in men who are conscientious in this respect? or what justice can there be in compelling them to bear arms, when, according to their religious principles, they would rather die than use them? [Line 24 (repeated as Line 503b), plus extended context. Source.]
It seems to me that Boudinot used bear arms in its idiomatic sense. As I’ve explained previously, when bear arms was used in expressions such as compelled to bear arms, obliged to bear arms, and duty to bear arms, it was most likely used idiomatically, in a military-related sense. The same is true of expressions such as religiously scrupulous [or conscientious] of bearing arms. That is relevant because what Boudinot spoke against was “compelling [men who are conscientious in this respect] to bear arms,” with “men who are conscientiously in this respect” referred to the “person[s] religiously scrupulous” who were the intended beneficiaries of the proposed amendment. And while the proposed amendment didn’t explicitly specify the object of the religious scruples, it would have been understood that the religious scruples in question were scruples against bearing arms. Thus, the context reinforces the conclusion that Boudinot was using bear arms in its idiomatic military sense.
In both (8) and (9), bear arms is part of the phrase of age to bear arms, which I’ve previously described as most likely using bear arms in its military sense. (Note that the part of the linked post that discusses of age to bear arms has recently been updated, so if you’ve read it before the date of this post, you might want to look at it again, to see what’s been added.)
In addition, the context in which bear arms appears in both (8) and (9) relates to warfare and the military. In the case of (8), that is clear from the concordance line itself, without having to look at the broader context:
(8′) The wide extent of country might very possibly contain a million of warriors, as all who were of age to bear arms were of a temper to use them. [Line 503d.]
The statement that “all who were of age to bear arms were of a temper to use them” was offered as the basis for the statement that the country in question “might very possibly contain a million of warriors.”
In the case of (9), however, it’s necessary to expand the context:
(9′) As there were no regular troops kept on foot in any of the feudal kingdoms, the Monarch could bring no army into the field but what was composed of soldiers furnished by the crown-vassals; always jealous of the regal authority, and often in rebellion against it; nor had he any funds for carrying on the publick service, but such as they granted him with a very sparing hand. But when the members of communities were permitted to bear arms, and were trained to the use of these, this in some degree supplied [= made up for (OED)] the first defect, and gave the crown the command of a body of men independant of its great vassals. [Line 503f. Source.]
Thus, in (7), (8), and (9), bear arms was used in its idiomatic military sense. And in each of those concordance lines, the arms in bear arms was also used indirectly in use them or the use of these, with them and these being understood to mean arms:
(7″) compelling them to bear arms, when, according to their religious principles, they would rather die than use them [Line 503(b).]
(8″) all who were of age to bear arms were of a temper to use them. [Line 503d.]
(9″) permitted to bear arms, and were trained to the use of these [= made up for (OED)] the first defect, and [Line 503f.]
I’ve gone back and forth in my mind as to whether the phrases use [arms] and the use of [arms] were used literally, to convey the meaning ‘use [or ‘the use of’] weapons’ or instead figuratively to mean something along the lines of ‘engage in combat.’ Part of the difficulty stems from the fact that using weapons is typically part of engaging in combat, and that can make it hard to figure out which meaning was intended—assuming the author focused on that issue. But the overlap between the two senses also means that the use of the phrase might well evoke both senses, in which event a single instance arms would be understood both literally and figuratively. Thus, on two of the three possible readings use them and the use of them , the phrase would have been used copredicatively. So while I’m less confident of my judgment as to (7)-(9) than of my judgment regarding (5) and (6), I think that all five cases involve essentially the same kind of copredication that exists under my interpretation of keep and bear arms.
THE USES OF BEAR ARMS that I’ve discussed provide evidence supporting the conclusion that the phrase could have been used idiomatically in the Second Amendment, even though that would entail that arms mean two things at once.
We obviously can’t know how those uses were understood. But assuming that the authors intended to convey the copredicative meaning, what they wrote provides evidence that they, at least, thought that their texts would convey that meaning. While that by itself does not establish what readers understood the texts to mean, the fact that there are five instances of the same phenomenon gives added weight to the argument. And keep in mind that my purpose at this point is simply to show that my interpretation of keep and bear arms isn’t ruled out.
However, there remains the question whether it’s possible to go further, and talk about the likelihood that when the Second Amendment was framed and ratified, it was understood in the way that my interpretation predicts.
My answer is a qualified “yes.” Looking back at the various issues that I’ve discussed in looking at the Second Amendment, there are several as to which the evidence strongly favors the idiomatic reading, as well as issues as to which (as I evaluate the evidence) it favors that interpretation, but less strongly, or else is evenly balanced or at least hard to call either way.
The most important evidence—and the evidence that weighs most heavily in favor of the idiomatic reading—is that the idiomatic use of bear arms appeared in the corpus data almost 20 times as often as the literal use. That suggests that bear arms was likely to have been strongly associated with the idiomatic meaning, and only weakly associated with the literal meaning. As a result, the idiomatic meaning would in all likelihood have been the more salient meaning—the one that was likely to come to mind first.
In addition, one would expect that the association of bear arms with the idiomatic meaning to have been strengthened by the Second Amendment’s statement that a “well regulated Militia” was “necessary to the security of a free State.” As I’ve said, the right of the people to… bear arms would most likely have been understood as the right to serve in the militia. But even before 18th-century readers reached bear arms, they would have known that the Second Amendment had something to do with the militia, and in particular with the essential role of the militia in maintaining the security of a free state. That would almost certainly led them to expect that the Second Amendment was intended to protect that role. And protecting the right to serve in the militia would have made perfect sense as a way to preserve the militia’s viability and vitality. Equating the right to bear arms that was protected by the Second Amendment would therefore have made the two parts of the Second Amendment into a coherent whole.
At this point, defenders of Heller’s analysis might argue that we shouldn’t be considering the preamble at all, because the court said in Heller that the preamble plays no role in deciding what the Second Amendment means unless the operative clause is ambiguous. There are two responses to that argument.
First, as I said here, the rule stated by Heller is “a prescriptive rule about how legal interpretation is supposed to proceed, not a descriptive generalization about what the process of language comprehension actually entails.” This rule therefore has no role to play in the effort to determine how 18th-century readers of the Second Amendment were likely to have been understood it. Second, in light of what I’ve shown, Heller’s prerequisite for considering the preamble is satisfied. Even if you think that all the other evidence I’ve presented is inconclusive, that evidence makes it hard to argue that the Second Amendment unambiguously protects a right to carry weapons for individual self-defense. The rule stated in Heller therefore permits the preamble to be considered.
Heller’s defenders might also argue that there would have been an association between the concept of the militia and the use of weapons for individual self-defense. But I don’t think that points toward a different conclusion, even though it’s true that carrying and using weapons would have associated with the militia, although not exclusively so, and that among the uses to which militiamen would have put their weapons was defending themselves. But that association is weaker and less direct than the association between the militia and serving in the militia.
The latter association would have been inherent in the concepts themselves. A militia is a social institution that exists only by virtue of the coordinated actions of its members, and the concept of serving in the militia presupposes that there already exists a militia in which to serve.
In contrast, the connection between the militia and a right to carry for individual self-defense is complicated and indirect. That becomes clear when you consider how the Supreme Court in Heller explained the connection between the two.
It offered that explanation only after the court had decided that the right to keep and bear arms consisted of “the individual right to possess and carry weapons in case of confrontation,” whether or not that possession and carrying were related to militia service. Having reached that conclusion, the court proceeded to consider whether its interpretation was consistent with the preamble.
What the court concluded was that the interpretation “fits perfectly, once one knows the history that the founding generation knew” (and that the court had discussed earlier in its opinion). The implication of that statement is that without knowledge of that history, the interpretation’s fit with the preamble would not be apparent. So already we can see, from this one sentence, that the association between the militia and carrying weapons for individual self-defense was less direct than the association between the militia and serving in the militia.
That conclusion is reinforced when you look at what the court wrote about the history and its relevance to the Second Amendment. It starts with actions taken by King Charles II and King James II between the Restoration and the Glorious Revolution, and from there it continues for several hundred words. (554 U.S. at 592-596.) Then relating that history to the Second Amendment takes almost as long. (554 U.S. at 598-600.) It strikes me as implausible in the extreme to suggest that any of those factors would have mentally connected all those dots—or even focused on them— in the one or two seconds between finishing their reading of the preamble and arriving at an understanding of what was meant by keep and bear arms. In contrast, it’s likely that readers would have immediately recognized the association between the concept of the militia and the idiomatic meaning of bear arms.
For all these reasons, I think that if the Second Amendment had protected only “the right of the people to bear Arms” rather than “to keep and bear arms,” there would be little if any doubt that bear arms would have been understood idiomatically. The only question that remains is how much difference it makes that the Second Amendment does protect a right to “keep and bear arms.
That’s undoubtedly a complicating factor, but I don’t think that it ultimately changes the conclusion. My evaluation of the evidence we’ve looked at in this post is that it provides no reason to think that bear arms is likely to have been understood literally.
And we can identify factors that could have contributed to bear arms having been understood idiomatically and figuratively. Although arms would have been almost certainly have been understood figuratively in bear arms, that figurative meaning is semantically related to its literal meaning (compare The pen is mightier than the sword). So even though bear arms would have been most naturally understood in its idiomatic sense, it wouldn’t have required much of a cognitive leap to simultaneously understand arms literally, especially given that readers would been expecting a word that could specify what it was that the people had a right to keep.
I realize that even if you intellectually accept what I’ve said so far, the interpretation I’ve proposed might still seem odd. But if you otherwise agree with my reading of the evidence, I don’t think it makes sense to let that feeling of oddness override conclusions that are based on evidence and reasoned analysis. The problem with giving in to that impulse is that what matters is not our linguistic intuitions today, but rather the intuitions of readers at the time of the Second Amendment’s framing and ratification 230 years ago. And we have no way of knowing whether what seems unnatural to us in 2019 would similarly have seemed unnatural to them. Our linguistic intuitions are shaped by the linguistic environment(s) each of us grew up and lived our life in, which differ substantially from the that of the late 18th century. And without any objective evidence to support what is no more than a gut feeling, I don’t think we can assume that those gut feelings are reliable.
Where does that leave us? I think that it leaves us with the realization that complete certainty here is unattainable. Given that situation, it seems to me that we have two interpretive options, both of which point toward the same conclusion. The first would be to interpret the Second Amendment based on what is knowable: the corpus data and other evidence that I’ve discussed over the course of this series of posts. That would mean interpreting bear arms in its idiomatic military sense. The other would be to say that bear arms is ambiguous, and that the ambiguity should be resolved by consulting the preamble, as Heller would permit. And given what the preamble says, that approach would result in the same conclusion as the first one. Either way, Heller’s analysis, and the conclusion that it yielded, are untenable.
Cross-posted on Language Log.