Category Archives: “keep and bear arms”

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: “keep and bear arms” (Part 1) (updated)

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 was supposed to be the final entry in my series of posts on the Second Amendment, but I’ve decided to split the discussion into two parts.

In my last post, I concluded that as used in the Second Amendment, bear arms was most likely understood to mean ‘serve in the militia.’ The question that I’ll address here and in my next post is whether that conclusion is changed by the fact that the Second Amendment protects not simply “the right of the people to bear arms” but “the right of the people to keep and bear arms.”

The corpus data on keep and bear arms is of no help in answering that question, because all the uses of the phrase in the data are either from the Second Amendment or from drafts of proposals for what became the Second Amendment. Therefore, I won’t deal with the corpus data at all in this post, and I’ll deal with only a relative handful of concordance lines in the next one (though those lines will play an important role in the analysis).

Taken together, these two posts will provide an extended rebuttal of the portion of Heller (consisting of only four sentences) that raised the question that these posts will address. Those four sentences were part of the court’s argument that bear arms as used in the Second Amendment couldn’t possibly have been understood 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.

When I first read Heller, this struck me as a pretty strong argument. But I’ve rethought the issue since then, and have come to think that the argument is seriously flawed. At this point, although I don’t dismiss the argument altogether, I don’t think it rules out interpreting bear arms in the Second Amendment to mean ‘serve in the militia.’

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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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Corpora and the Second Amendment: Responding to Weisberg on the meaning of “bear arms”

[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.

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The coming corpus-based reexamination of the Second Amendment

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

It was only three weeks ago that BYU Law School made available two corpora that are intended to provide corpus-linguistic resources for researching the original meaning of the U.S. Constitution. And already the corpora are yielding results that could be very important.

The two corpora are COFEA (the Corpus of Founding Era American English) and COEME (the Corpus of Early Modern English). As I’ve previously explained, COFEA consists of almost 139 million words, drawn from more than 95,000 texts from the period 1760–1799, and COEME consists of 1.28 billion words, from 40,000 texts dating to the period 1475–1800. (The two corpora can be accessed here.)

Within a day after COFEA and COEME became available, Dennis Baron looked at data from the two corpora, to see what they revealed about the meaning of the key phrase in the Second Amendment: keep and bear arms. (Baron was one of the signatories to the linguists’ amicus brief in District of Columbia v. Heller.) He announced his findings here on Language Log, in a comment on my post about the corpora’s unveiling:

Sorry, J. Scalia, you got it wrong in Heller. I just ran “bear arms” through BYU’s EMne [=Early Modern English] and Founding Era American English corpora, and of about 1500 matches (not counting the duplicates), all but a handful are clearly military.

Two weeks later, Baron published an opinion piece in the Washington Post, titled “Antonin Scalia was wrong about the meaning of ‘bear arms’,” in which he repeated the point he had made in his comment, and elaborated on it a little. Out of “about 1,500 separate occurrences of ‘bear arms’ in the 17th and 18th centuries,” he said, “only a handful don’t refer to war, soldiering or organized, armed action.” Based on that fact, Baron said that the two corpora “confirm that the natural meaning of ‘bear arms’ in the framers’ day was military.”

My interest having been piqued, I decided to check out the corpus data myself.

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