Category Archives: Second Amendment

Corpora and the Second Amendment: “keep and bear arms” (Part 2)

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.

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Corpora and the Second Amendment: “the right (of the people) to … bear arms”

An introduction and guide to this series of posts is available here. The corpus data can be downloaded here. Important: Use the “Download” button at the top right of the screen.

New URL for COFEA and COEME: https://lawcorpus.byu.edu.

Having dealt in my last post with how bear arms was ordinarily used and understood in 18th-century America, I’ll turn in this post to the question of how it was used in the Second Amendment.

I’ll begin by considering how the right to bear arms would most likely have been understood during the Founding Era. As I will explain, I think it would have been understood to mean something along the lines of ‘serve in the militia.’ I’ll then ask whether that conclusion is changed by the fact that the right to bear arms is described in the Second Amendment as belonging to “the people.” My answer will be that my conclusion is unchanged.

My next post will wrap up my examination of the Second Amendment by considering whether my interpretation is ruled out by the fact that the Second Amendment deals not simply with the right of the people to bear arms but with their right to keep and bear arms. And again, the answer will be no.

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Corpora and the Second Amendment: “bear arms” (part 2)

Part 1 is here. 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.

Update Concordance-line references have been changed to reflect revisions to the spreadsheet from which the lines were copied, as have figures for the total number of concordance lines and for the various subtotals that are given.

New URL for COFEA and COEME: https://lawcorpus.byu.edu.

In this post and the next one, I will discuss the corpus data for bear arms.

This post will focus on the data that I think is consistent (or at least arguably consistent) with the Supreme Court’s interpretation of bear arms in District of Columbia v. Heller, and the next one will deal with the data that I think is inconsistent with the Heller interpretation.

As I discussed in my last post, the court in Heller held that the “natural meaning” of bear arms in the late 18th century (i.e., its “ordinary meaning” (i.e., what it ordinarily meant)) was “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.” As I read the data, very little of it is consistent with that interpretation.

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Corpora and the Second Amendment: Changing my mind about a change of mind

After initially declaring that I wouldn’t be posting about the phrase keep arms because I had nothing interesting to say about it, and then declaring that upon further reflection I did have something interesting to say, I’ve realized after drafting a post discussing the phrase that I was right the first time.

So when “Corpora and the Second Amendment: ‘keep arms’” doesn’t appear, that’s why.

Corpora and the Second Amendment: “arms”

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.

This post on what arms means will follow the pattern of my post on bear. I’ll start by reviewing what the Supreme Court said about the topic in District of Columbia v. Heller. I’ll then turn to the Oxford English Dictionary for a look at how arms was used over the history of English up through the end of the 18th century, when the Second Amendment was proposed and ratified.. And finally, I’ll discuss the corpus data.

Justice Scalia’s majority opinion had this to say about what arms meant:

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.’’ [citations omitted]

As was true of what Scalia said about the meaning of bear, this summary was basically correct as far as it went, but was also a major oversimplification.

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Corpora and the Second Amendment: “bear”

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.

Starting with this post, I’m (finally) getting to the meat of what I’ve called “the coming corpus-based reexamination of the Second Amendment.” The plan, as I’ve said before, is to more or less mirror the structure of the Supreme Court’s analysis of keep and bear arms. This post will focus on bear, and subsequent posts will focus separately on arms, bear arms, and keep and bear arms. (I won’t be discussing keep arms because I have nothing to say about it.)

In discussing the meaning of the verb bear, Justice Scalia’s majority opinion in District of Columbia v. Heller said, “At the time of the founding, as now, to ‘bear’ meant to ‘carry.’’’ That statement was backed up by citations to distinguished lexicographic authority—Samuel Johnson, Noah Webster, Thomas Sheridan, and the OED—but evidence that was not readily available when Heller was decided shows that Scalia’s statement was very much an oversimplification. Although bear was sometimes used in the way that Scalia described, it was not synonymous with carry and its overall pattern of use was quite different.

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Corpora and the Second Amendment: “keep” (part 1)

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.

With this post, I begin my examination of the corpus data regarding the phrase keep and bear arms. My plan is to start at the level of the individual words, keep, bear, and arms, then proceed to the simple verb phrases keep arms and bear arms, and finally deal with the whole phrase keep and bear arms. I start in this post and the next one with keep.

As you may recall from my last post about the Second Amendment, Justice Scalia’s majority opinion in D.C. v. Heller had this to say about the meaning of keep: “[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.'” While those definitions could be improved on, I think that for purposes of this discussion, they adequately explain what keep means when it’s used in the phrase keep arms. So I’m not going to discuss that data with an eye to criticizing this portion of the Heller opinion.

Instead, I’m going to use the data for keep as the raw material for an introduction to the nuts and bolts of corpus analysis. I suspect that many people reading this won’t have had any first-hand experience working with corpus data, or even any exposure to it. Hopefully this quick introduction will enable those people to better understand what I’m talking about when I start to deal with the data that does raise questions about the Supreme Court’s analysis.

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Corpora and the Second Amendment: Heller

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.

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”:

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Corpora and the Second Amendment: Preliminaries and caveats

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

Before I get down to the business of discussing the corpus data and its implications for the Supreme Court’s analysis in Heller, I want to say a few things about what this series of posts will and won’t be about, I want to offer some caveats, and I want to outline the sequence that the posts will follow.

What the posts will and won’t be about

These posts are going to focus on the meaning of the phrase keep and bear arms and on the Court’s analysis of that phrase. I won’t be talking about the other parts of the Second Amendment (a well-regulated militia, the security of a free state, the right of the people, and infringed).

The discussion will concentrate on linguistic issues rather legal issues. I won’t be talking about whether the Court’s holding in Heller is correct. I will, however, talk about what my linguistic analysis means for Heller‘s conclusion that the Second Amendment’s text is unambiguous and therefore that the prefatory clause plays no role in the amendment’s interpretation.

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Corpora and the Second Amendment: Weisberg responds to me; plus update re OED

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

Two quick updates.

First, David Weisberg has replied to my response to his post on the Originalism Blog, but he doesn’t address the point that I made, which was that I disagreed with his framing of the issue.

Weisberg also notes that I didn’t respond to the second point in his original post (which dealt with a purely legal issue), and he goes on to say this:

Many people (and I think Goldfarb is one) believe the correct sense of the 2nd Amend is this: “The right of the people to keep and bear Arms, for use in a State’s well regulated Militia, shall not be infringed.” But, if that is what the framers meant, why isn’t that what they wrote? I think that is a very fair question to ask, and it merits an answer. After all, 5 words would have been saved. Will corpus linguistics provide an answer?

I’m not going to offer any views in this series of posts about how I think the Second Amendment as a whole should be interpreted; I’m focusing only on Heller‘s interpretation of the phrase keep and bear arms. So I’m not going to say whether Weisberg is correct in his speculation about what I think on that score. Weisberg then asks why, if the framers had intended to convey the meaning he posits, they didn’t write the amendment in those terms. Although Weisberg thinks that is “a very fair question to ask,” I don’t think it’s a question that’s relevant to the issue as the Court framed it in Heller, which had to do with how the Second Amendment’s text was likely to have been understood by members of the public, not with what the framers intended. Nevertheless, I’ll say that the question to which Weisberg wants an answer is not one that can be answered by corpus linguistics.

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