Comments on two responses to my (mostly corpus-based) analysis of the Second Amendment. Part 1: Gun-rights advocates’ amicus brief

If you’re reading this, you’re probably aware that I’ve done a linguistic analysis of the main clause of the Second Amendment (“the right of the people to keep and bear Arms shall not be infringed”). I argued that in light of corpus data from the founding era, the Supreme Court in District of Columbia v. Heller was mistaken about how “the right of the people to … bear arms” was likely to have been understood when the Second Amendment was ratified.

My analysis was presented in a series of blog posts that was completed ten months ago, which I then compiled into a single document that I posted online (PDF). Until recently, my analysis was unchallenged: aside from a dismissive tweet or two, nobody had published or posted anything taking issue with my conclusions or with the underlying analysis. But in the last month or so, two critical responses have appeared.

The first of those responses was a law review article by Josh Jones, who is currently a law clerk at the Utah Supreme Court, and the second appears as part of an amicus brief filed in a Second Amendment case pending on rehearing en banc before the Ninth Circuit. The brief was on behalf of a number of law professors and advocacy organizations (listed at the end of this post), all of them being gun-rights advocates.

The article and the brief both take issue with my conclusion about the founding-era meaning of bear arms, but to differing degrees. Jones disagrees with my reading of the corpus data in some respects, while agreeing with it in others. The brief, on the other hand, takes the position that I’m flat-out wrong.

I’ll discuss the brief here and Jones’s article in my next post, but I will say up front that neither document provides any reason to think that I’m mistaken in my ultimate conclusion about Heller. And while Jones makes a serious effort to engage with the data and with my arguments, the brief is an exercise in obfuscation.

THE AMICIUS BRIEF talks about my analysis as part of a short section dealing with the Second Amendment’s text, with the remainder of the brief’s argument being devoted to historical issues. That section begins by addressing what was, in the amici’s view, the founding-era meaning of bear and bear arms.

Although that discussion doesn’t mention my analysis, it is relevant here—precisely because it says nothing about my analysis. The amici quote Heller’s statement that “at the time of the founding, as now, to ‘bear’ meant to ‘carry’” (p.7) , but they fail to mention that I had described that statement as being “very much an oversimplification” and had said that it “had a kernel of truth but didn’t accurately reflect how bear was ordinarily used.” I had discussed the corpus data at length and in detail, and on the basis of that data I had concluded  that bear “was not synonymous with carry” and that the two words’ overall patterns of use were quite different from one another. The brief ignores that discussion entirely.

After failing to mention my analysis of bear, the brief refers to Heller’s adoption of a definition that had been offered by the dissent in Muscarello v. United States, and it does so in a way that is misleading (p.7). The brief makes it appear that the definition in question was a definition of bear arms, but that’s not correct. As I had pointed out, the phrase at issue in Muscarello was carry a firearm, not bear arms, and the dissent’s definition related to the former, not the latter. I had also criticized Heller’s reliance on the Muscarello dissent on other grounds, but the amicus brief ignores those as well.

THE BRIEF’S NEXT PARAGRAPH (pp. 7–8) deals with the phrase bear arms, and it is here that we encounter the amici’s misunderstanding of Samuel Johnson and Noah Webster.

After saying that “for the meaning of ‘bear arms,’ the Court also looked to leading historical dictionaries,” the brief proceeded to discuss two definitions, one from Johnson’s dictionary and the other from Webster’s:

Samuel Johnson defined “Bear” as “To carry as a mark of distinction…So we say, to bear arms in a coat.” Samuel Johnson, 1 DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 1773) (unpaginated). Similarly, Noah Webster defined “Bear” as “To wear; to bear as a mark of authority or distinction; as, to bear a sword, a badge, a name; to bear arms in a coat.” Noah Webster, 1 AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828) (unpaginated).

[boldfacing added]

Contrary to what the brief implies, neither of those definitions was discussed or even cited in Heller. But that’s a minor glitch compared to the real problem with the amicus brief’s reliance on these definitions.

That problem is that when these definitions refer to “bear[ing] arms,” they are not referring to the carrying of weapons. Rather, they relate to the wearing of coats of arms.coat of armsThat conclusion is reasonably clear from the definitions’ references to “mark[s] of distinction” and “mark[s] of authority and distinction.” Further evidence is provided by the example sentences given in Johnson to illustrate the use of bear in this sense:

He may not bear so fair and so noble an image of the divine glory, as the universe in its full system. [Hale.]

His pious brother, sure the best
Who ever bore that name. [Dryden.]

The sad spectators stiffen’d with their fears,
She sees, and sudden every limb she smears;

Then each of savage beasts the figure bears. [Garth.]

His supreme spirit of mind will bear its best resemblance, when it represents the supreme infinite. Cheyne.

None of these uses can possibly be understood to refer to the carrying of tangible objects, much less of firearms or other weapons.

Additional evidence supporting that conclusion can be found elsewhere in the two dictionaries:

  • One of the senses of arms that is reflected both in Johnson and in Webster is “The ensigns armorial of a family.” Webster helpfully explains that such ensigns consist of “figures and colors borne in shields, banners, &c., as marks of dignity and distinction, and descending from father to son.”
  • In addition, one of the definitions for coat given by Johnson is “That on which the ensigns armorial are portrayed.” A similar definition is given by Webster, who adds that the item referred to by this sense of coat is “usually called a coat of arms.”

These definitions are consistent with those in the Oxford English Dictionary. And in addition, the OED also includes the following among its definitions for bear arms (part of the entry for arms): “Heraldry. To wear or display arms (5a).” (The “5a” is a cross-reference to sense 5a of the entry for arms, which reads,  “Heraldic charges or devices depicted on an escutcheon or shield and unique to a person, family, corporation, country, etc.”)

So the definitions that the amicus brief relies on turn out to be red herrings. And they’re not the only ones in the brief. Another red herring floats into view in the very same paragraph: “In the definition of pistol, Webster explained that ‘Small pistols are carried in the pocket.’” Perhaps so, but what of it? The Second Amendment uses the phrase bear arms, not carry pistols.

THE NEXT SECTION of the brief turns to the amici’s argument that the right to bear arms “is not limited to military uses” (pp. 8-14.) They begin by accurately noting that Heller “rejected the notion that ‘bear arms’ exclusively means to bear arms while in military service” and that Heller constitutes binding precedent (p. 8–9). And it is at that point that the brief addresses my analysis:

Nonetheless, one writer says he has conducted new research conclusively proving that “bear arms” had a military-only connotation. See Order Denying Motion of Neal Goldfarb for Leave to Participate in Oral Argument as Amicus Curiae and For Divided Argument, New York State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 398 (mem.) (Oct. 15, 2019).

That paragraph represents the entirety of what the brief says about what I’ve argued. The brief doesn’t mention that I reviewed more than 500 relevant uses of bear arms (or of a grammatical variant) or that I concluded that in 95% of those uses, the phrase was used in an idiomatic sense relating to war, the military, and so on. And of course it makes no effort to dispute my interpretation of any of the concordance lines.

Instead of engaging with the substance of my argument, the brief offers another red herring, in the form of the following statement, which (given that it immediately follows the reference to my analysis and begins with the word but) is apparently intended as a rebuttal of my analysis:

But in 1785, while in the Virginia legislature, James Madison—the Second Amendment’s author—proposed an anti-poaching law drafted by Thomas Jefferson in 1779. Anyone convicted of killing deer out of season faced further punishment if, in the following year, he “shall bear a gun out of his inclosed ground, unless whilst performing military duty.” A Bill for Preservation of Deer (1785), in 2 THE PAPERS OF THOMAS JEFFERSON 444 (J. Boyd ed., 1950). The illegal gun carrier would have to return to court for “every such bearing of a gun” to post an additional good-behavior bond. Id. According to the Madison-Jefferson bill, “performing military duty” was but one way to “bear a gun.”

[footnote omitted]

I’m baffled as to why anyone would think that Jefferson’s proposed law casts doubt on my conclusions; the proposed law is just as irrelevant as the dictionary definitions regarding coats of arms and the statement about carrying pistols in one’s pocket.

The proposal uses the phrase bear a gun (which does not appear in the Second Amendment), not the phrase bear arms (which does). The brief offers no reason to think that bear a gun was ever used in an idiomatic military sense, and I am aware of no such evidence. In contrast, even the Court in Heller acknowledged that bear arms was used at least some of the time in such a sense. Thus, the relevant question was whether that was how it was ordinarily used.

As noted above, I concluded from the corpus data that bear wasn’t  generally synonymous with carry during the founding era, and that it was not generally used to convey the meaning that the amicus brief assumes it did. I also concluded from the data that arms was often used in an idiomatic military-related sense rather than in a literal sense meaning ‘weapons.’ But the amicus brief says nothing about those arguments, and doesn’t attempt to rebut them.

The brief then offers yet another red herring:

Phrases like “bear a gun” or “bear arms” are not military-only just because they are sometimes used near words like “war.” In the usage of the time, “war” included personal self-defense.

This short argument is flawed in several respects.

To start with the first sentence: It is certainly true that bear arms “[is] not military-only  just because [it is] sometimes used near words like ‘war,’” but that’s not at all inconsistent  with what I’ve argued. In concluding that bear arms was predominantly used in an idiomatic military sense, I didn’t rely on anything as simpleminded as a mere proximity between bear arms and words such as war. That should be clear from the several thousand words of explanation that I provided for my categorization decisions.

In the second sentence I’ve quoted, the amici say, “In the usage of the time, ‘war’ included personal self-defense.” In support of that statement, the brief offers quotations from six authors, but none of those quotes provides evidence of “the usage of the time.”

The authors in question are John Locke, Hugo Grotius, Francisco de Victoria, Francisco Suárez, Jean-Jacques Burlamaqui, and Samuel Pufendorf. Only one out of those six wrote in English (Locke), and the work of his that is quoted in the brief was published a century before the Second Amendment’s ratification. The other authors wrote in either Latin (G, deV, S, P), or French (B).

Even if all of these works had been written (1) in English and (2) during the founding era, the portions quoted by the amici would have no effect on the determination of how the phrase bear arms was used and understood by founding-era Americans. As with the quotes that I’ve previously discussed, the phrase bear arms doesn’t appear in any of the quoted passages.

List of amici
Randy E. Barnett
Royce de R. Barondes
Robert J. Cottrol
Nicholas J. Johnson
Donald E.J. Kilmer, Jr.
Joyce Malcolm
George A. Mocsary
Joseph E. Olson
Glenn H. Reynolds
Gregory Wallace
Firearms Policy Coalition
Firearms Policy Foundation
Cato Institute
Madison Society Foundation
California Gun Rights Foundation
Second Amendment Foundation
Independence Institute

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