New in the Atlantic: Corpus Linguistics and D.C. v. Heller

James Phillips and I preview our new research in the Atlantic

|The Volokh Conspiracy |

In 2018, my colleague James Phillips and I published a post on the Harvard Law Review Blog. We offered some tentative findings about the linguistic claims made by the majority and dissent in D.C. v. Heller. Since then, James was hired as an associate professor at the Chapman University Fowler School of Law. As James transitions to academia, we plan to submit for publication a much more detailed version of our research. In the interim, we published an essay in The Atlantic that previews our work. We show that both Justice Scalia and Justice Stevens erred.

Here is a segment that focuses on the phrase "keep arms"

Next, we turn to Justice Stevens's dissent. He wrote that the Second Amendment protected a right to have and use firearms only in the context of serving in a state militia. Stevens appears to have determined—though his exact conclusion is somewhat unclear—that the phrase keep and bear arms was a unitary term of art. Such single linguistic units, called binomials or multinomials, are common in legal writing. Think of cease and desist or lock, stock, and barrel. As a result, Stevens concluded, there was no need to consider whether keep arms had a different meaning from bear arms. Therefore, he had no reason to determine whether keep arms, by itself, could refer to an individual right.

Was Stevens's linguistic intuition correct? No. The phrase keep and bear arms was a novel term. It does not appear anywhere in COEME—more than 1 billion words of British English stretching across three centuries. And prior to 1789, when the Second Amendment was introduced, the phrase was used only twice in COFEA: First in the 1780 Massachusetts Declaration of Rights, and then in a proposal for a constitutional amendment by the Virginia Ratifying Convention. In short, keep and bear arms was not a term of art with a fixed meaning. Indeed, the meaning of this phrase was quite unsettled then, as it had barely been used in other governmental documents. Ultimately, a careful study of the Second Amendment would have to treat keep arms and bear arms as two separate linguistic units, and thus two separate rights.

We performed another search in COFEA, about the meaning of keep arms, looking for documents in which keep and arms (and their variants) appear within six words of each other. The results here were somewhat inconclusive. In about 40 percent of the hits, a person would keep arms for a collective, military purpose; these documents support Justice Stevens's reading. And roughly 30 percent of the hits reference a person who keeps arms for individual uses; these documents support Justice Scalia's analysis. The remainder of the hits did not support either reading.

We could not find a dominant usage for what keep arms meant at the founding. Thus, even if Scalia was wrong about the most common meaning of bear arms, he may still have been right about keep arms. Based on our findings, an average citizen of the founding era would likely have understood the phrase keep arms to refer to possessing arms for both military and personal uses.

James and I were also cited in a recent New York Times Magazine profile on originalism.

For originalists, the new tool is "a paradigm-shifting technology," two members of the Federalist Society, the law professor Josh Blackman and the Stanford law fellow James C. Phillips, wrote in The Harvard Law Review's blog in August 2018. It also means that cherry-picking the historical record to establish a dubious "original" meaning would be harder to conceal. "We can do empirics," says Alison LaCroix, a historian and law professor at the University of Chicago. "There's a data set."

Blackman and Phillips conducted a review of the database and found that the dominant use of "bear arms" at the time of the country's founding related to the militia. (Even so, they didn't conclude that Scalia got Heller wrong.) LaCroix and three linguists submitted a brief to the court last fall, in the New York case, with studies they had each done. One found that references in the database "to hunting or personal self-defense" for the phrase "bear arms" were "not just rare, they are almost nonexistent." The phrase "keep arms," the brief stated, was also used "almost exclusively in a military context."

The findings confirm what Rakove and his fellow historians showed about the era's political history. But this time, the analysis played by the rules of the game as Scalia defined them, by looking narrowly at the original public meaning of the text. "I don't care how big a fan of Justice Scalia you are," Phillips told me. "At some point, you run up against the data."

(We disagree with some of the quotes from the other professors.)

Our goal here was not to criticize Justice Scalia. Linguistic analysis formed only a small part of Scalia's originalist opus. And the bulk of that historical analysis, based on the history of the common-law right to own a firearm, is undisturbed by our new findings. But originalists should still be able to assess, critically where Justice Scalia faltered. And Heller critics should likewise acknowledge where Justice Stevens faltered.

Finally, we offer this observation in our essay:

Corpus linguistics, like any tool, is more useful in some cases than in others. The Second Amendment in particular poses distinct problems for data searches, because it has multiple clauses layered in a complicated grammatical structure.

Our ultimate conclusion highlights some of the limits of corpus linguistics, at least with respect to the Second Amendment.

 

NEXT: One Child Nation

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  1. Look Scalia invented new meanings for words and twisted anything he could in the name of ‘originalism’ but in reality to push his personal conservative agenda

    Funny how seldom he found originalist concepts that conflicted with his personal philosophy

    That said, ‘keep and bear’ is obvious

    to bear arms means to go into battle with arms, not necessarily your arms. So to keep and bear means to have your weapons so that you may use them in battle.

    Heller may or may not be a crappy decision but that piece of linguistics seems straightforward

    1. In the Heller decision, one side was setting out to render the 2nd amendment moot, a “right” to own and carry arms only when directed by the government to do so.

      The other was faced with a right too radical to be politically viable, a right to be armed in the same manner as the government’s own soldiers; To “every terrible implement of the soldier”. And yet they shrank from rendering it totally moot, instead they set out to reinvent it as a right to only such arms as the government didn’t feel threatened by.

      So neither side had the option of writing a well justified opinion. Yes, it was a crappy decision, but the dissent sought to make it even crappier.

      1. I would like to see a corpus linguistics analysis of the “right of the people” which of course refers to a collective government right in the second amendment.

        The “right of the people” of peaceably assemble refers to a collective government right to assemble the people for governmental purposes in the first amendment.

        And while they could of worded it better the fourth amendment protects government officials papers and spoils of office “unreasonable searches and
        seizures.”

        1. 4A – The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,

          1A – or the right of the people peaceably to assemble

          10A – The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

          Hard to make the argument that 2A’S reference to the right of the people is limited to a collective right when the term people is used to refer to the individual in 4A and implied in 1A , 9A & 10A

          9A – The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

          1. Stevens was in a tough position: He wanted to rule that the 2nd amendment didn’t protect any sort of real right, but he had neither text nor history on his side.

            He didn’t let that stop him, but it did handicap him somewhat.

            1. What stevens did have was substantial historical references that 2A preserved the right to bear arms for the purpose of a common defense. But He pretended that there was zero historical references to the individual right. He also ignored that there was zero historical references to any limitation or restriction that the right only existed when serving in a militia or for the common defense.

              Scalia’s mistake was that he did not acknowledge that 2A preserves two rights, both the individual right and the right to form militia’s for the common defense. In scalia’s defense, the right to form a militia for the common defense was not before the court.

              1. I did address that: The historical meaning of the 2nd amendment is EXTREMELY unpalatable to our current political class.

                The Constitution and Bill of Rights originated from armed revolutionaries, who were concerned to retain for the people the capacity to, in extremity, do what they’d done.

                Our current political class are entrenched pseudo-aristocrats who are more concerned with the fact that they have to limit their own actions out of fear of assassination or armed uprising.

                The Court should have done the right thing, and upheld the true meaning of the 2nd amendment anyway, but it’s hardly shocking they didn’t; People who would do that don’t get to be federal judges, let alone a seat on the Supreme court.

                1. Nope, America developed democratic institutions because the British left us alone. Then they got all up in our business and tried to tell us what to do and undermine our self governance. The American Revolution wasn’t “revolutionary” it was merely us fighting to preserve what we had made without the “help” of our British overlords.

                  Liberty good.
                  Anarchy bad.
                  Law and order good.
                  Tyranny bad.

                  You see how that works? So President Washington called forth the several state militias when Americans refused to pay their taxes in the Whiskey Rebellion. Was that tyrannical or was that law and order? Was he squashing liberty or preventing anarchy?? If only someone with an IQ over 160 could weigh in to make sense of this. My 125 IQ isn’t up to the task. I’m sadz.

                  1. The problem with having to rely on the militias to suppress rebellions is that it’s often the militias at the forefront of of the rebellion. The trainbands of London were notorious during the rebellions against the Stewarts for their disloyalty to the King, not to mention our own militias sparking the revolutionary war at Lexington and Concord.

                    The founding fathers had no illusions that they could use the militias to awe the people in an unjust cause.

                    1. Too bad you weren’t around to give your advice to George Washington! I could see it now—“President Washington you can’t call forth the state militias to suppress the Whiskey Rebellion because blah blah blah…and you should be cutting taxes and outlawing abortion anyway!! Life begins at conception!!” You are super smart…maybe one day you will grow up to be an astronaut…or even president!

                    2. That of course is ridiculous, Washington would have no trepidations about calling forth the militia to suppress a rebellion, especially since he had no intention of using it except as a last resort.

                      However an Aaron Burr, had he become president might well have cause to doubt the loyalty of the militia if he were trying to suppress legitimate grievances.

                    3. “The problem with having to rely on the militias to suppress rebellions is that it’s often the militias at the forefront of of the rebellion.”

                      That was kind of the point, wasn’t it? They weren’t trying to make rebellion entirely impossible, they thought it just as important that a popular rebellion succeed, as that an unpopular one fail. By relying on a militia that consisted of the whole of the people, they would arrange that in any conflict, the majority would always have a majority of the military on their side.

                    4. Ah yes, the old George Washington was supposed to blow his shofar and armed men would come out of the forest to stop tyranny. The Founders didn’t want anarchy or tyranny. So the best way to prevent both of those things is to have an organized militia. And the way you make it loyal to the state government is you have the states appoint officers. The reason federal regulations were necessary was because the state militias were suboptimal under the AoC but the Framers still were reluctant to have a standing army.

                      So tell me Bellmore—in the Civil War did the south rise up as individuals to take on the tyrant Lincoln?? Of course not because that is not how one defeats a tyrant while preserving the wealth of the leaders of the society that are attempting to topple the tyrant.

                      Sticking with the Civil War—the South considered Lincoln a tyrant imposing tyranny. So they seceded knowing bloodshed would erupt…how did the unorganized militia work out?? The unorganized militia was nonexistent/inconsequential and the CSA Army used military weapons made specifically for the federal army and the organized state militias!! So in 1861 individuals with guns were not even considered to be a check on a president perceived as a tyrant.

    2. Your arguments were addressed by Scalia in Heller and found wanting:

      In any event, the meaning of “bear arms” that petitioners
      and JUSTICE STEVENS propose is not even the (sometimes)
      idiomatic meaning. Rather, they manufacture a
      hybrid definition, whereby “bear arms” connotes the
      actual carrying of arms (and therefore is not really an
      idiom) but only in the service of an organized militia. No
      dictionary has ever adopted that definition, and we have
      been apprised of no source that indicates that it carried
      that meaning at the time of the founding. But it is easy
      to see why petitioners and the dissent are driven to the
      hybrid definition. Giving “bear Arms” its idiomatic meaning
      would cause the protected right to consist of the right
      to be a soldier or to wage war—an absurdity that no
      commentator has ever endorsed. See L. Levy, Origins of
      the Bill of Rights 135 (1999). Worse still, 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.

  2. It would be logical for “keep” and “bear” to apply to either individuals and government depending on the context.
    The Bill of Rights wasn’t passed as 10 separate amendments. They are an integrated package and the tenth provides clarification and a hierarchy of rights, reserving everything to the people that is not expressly authorized to the state and federal government.
    The 2nd amendment reserves the right to keep and bear arms to individual persons, while also affirming the authority of free states to form and arm militias. These two things are not mutually exclusive, and doesn’t give the state any power to restrict individually owned arms. This is reinforced by the 10th amendment.
    The tenth amendment:
    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, OR to the people.”

    1. The 2nd amendment has nothing to do with state militias.

      1. Not quite true, as the preface indicates.

        It it indirectly protected state militias, by protecting the armed population from which they would be raised.

        1. Lol, no. Anarchy bad! Tyranny bad! Law and order good.

    2. “The 2nd amendment reserves the right to keep and bear arms to individual persons, while also affirming the authority of free states to form and arm militias. These two things are not mutually exclusive.”

      A) the two rights is the only logical reading of 2A. There is nothing in 2A which imply that only one of the 2 rights are applicable.
      B) Both Stevens and Scalia go to great lengths citing historical references, There is absolutely zero historical references to any limitation to the right to keep and bear arms ONLY when serving in the milita.

      1. That’s because if you limited the right to militia members, you could disarm the militia by just deciding not to have one.

        The goal was to make it possible to raise a militia in an emergency even if the government had, stupidly or maliciously, shut down the militia system. The only way to guarantee that would be possible was to make sure the population from which that militia would be raised would be armed even if there wasn’t a militia.

        1. I would go further. Many of the Founders, including our first three Presidents, were involved in the militias at the time. The 2nd and 3rd at least, were instrumental in writing (Jefferson) and adopting (Adams) the Declaration of Independence, as well as in adopting the Bill of Rights. Their just fought Revolutionary War had been started with the local militias mustering to successfully oppose the central government’s (Great Britain) attempt to disarm the populace, and the Colonial militias then went on to form the core of the Colonial Army (led by a former militia commander, George Washington). The militias at the time were founded to provide a common defense, first against Indians (Where Washington first fought), then from their central government, Great Britain. I have little doubt that those who drafted and enacted the 2nd Amdt would have found it ludicrous that that Amdt could be interpreted to allow the central government to disarm the populace by fiat by disbanding or disarming the local militias, when it was the attempt to disarm the quasi illegal militias that triggered the war that bought them their freedom from their former sovereign.

          1. I don’t think that the 2nd Amdt can be read without reference to the Declaration of Independence. It was developed by a committee of five, led by Jefferson, who was the primary author (since, according to Adams, he was the better writer), and Adams, who was in charge of selling it (according to Jefferson, he was the better orator).

            Key here is first that government is by consent of the governed, and that means that if the government became too tyrannical, as GB had, it could, and ultimately should, be replaced, by force, if necessary. Key to protecting against tyranny was protecting the inalienable rights to life, liberty, and the pursuit of happiness. And the 2nd Amdt was enacted to protect the first two – the right to self defense to protect life, and the right to form militias for possible use against threats, either external, internal, or against the tyranny of a central government, all in defense of liberty.

        2. The amendment literally states the importance of having a state having a militia!?! The states would never have disarmed the people because that particular right preceded the 2A—see Cruikshank.

          1. This is my take The second Authorizes the states to form militias AND reserves the right to keep and bear arms to individuals, barring both the fed and state /local governments from disarming citizens.
            The 10th amendment reinforces this hierarchy, reserving rights to individuals and limiting government bodies to what is constitutionally authorized. The 10th should be the response to any gov official that says “tell me where it says I can’t do xxx”.

            1. Militias preceded even Declaration of Independence, so Lexington and Concord involved Mass militia.

  3. Stevens was correct that there are a lots of historical references to keep and bear arms for defense including while serving in a militia.

    Scalia was correct that there a lots of historical references to keep and bear arms for self defense and as an individual right (though not as many references as when serving in a Militia.

    Stevens is incorrect when he denies that there is no historical reference to the individual right.

    A further point – Stevens claims that the right to keep and bear arms under 2a only exists when serving in the milita. There is absolutely zero historical references to any limitation to keep and bear arms to when serving in a militia.

    there would have been massive historical references to that debate if that limitation was even considered.

    1. The idea that the only militias covered in the 2nd Amdt are government sanctioned militias is pure historical revisionism. As I noted above, the militias the drafters certainly had in mind were the local, quasi illegal, militias that many of the Founders, and esp their leaders, were involved in, that had started the Revolutionary War by resisting an attempt, by their sovereign, to disarm them, and then went on to become the core of the Continental Army. They had just won their freedom from British rule partially, at least, as a result of their militias. Local, quasi illegal, militias that had presumably had originally formed formed to defend against Indians, but by 1775 were routinely drilling to defend against British troops.

      1. Lol, no. Volokh’s law review article cited in Heller made a big mistake by saying the state militias couldn’t act as a check on tyranny because the federal government could simply call them up in federal service….except the states were given the power to appoint officers. See Civil War to see how that dynamic played out.

  4. So, if I list out colonial and contemporaneous state limitations on the ownership of firearms, they would be imaginary

    1. Not at all, just as colonial era religious restrictions were not imaginary.

      They didn’t add the amendments because there was no danger people’s rights would be infringed.

    2. Those limitations are evidence that outside the home the states had much more leeway to regulate arms. So Cruikshank states the RKBA predates the 2A and that the 2A has nothing to do with the fact we have that particular right.

    3. Hush.

      Incorporation is inconvenient, as it straight-up kills any sincere talk of “well, what would the ratifiers have thought?” in regards to state action and (most of) the Bill of Rights.

      So originalists just don’t talk about it.

      1. Which is why Scalia’s Heller majority was so absurd—all that was necessary was McDonald to incorporate Cruikshank. Or in the alternative pursuant to Scalia’s majority opinion in Heller the 2A was never written to apply only to the federal government and so the Cruikshank majority was wrong to say the BoR only applied to the federal government. So according to Scalia not every state was a “free state” because not every state had RKBA in their respective state constitutions, ipso facto, USA was not “free state” because inside some states citizens did not have the RKBA!?!

        1. Delete your comment and try again, it’s such a mess it’s unsalvagable.

          1. Translation: I just pee peed my panties!

            1. At least figure out what a “free state” is before you make more of a fool out of yourself.

              Hint: it refers as much to England and the Netherlands as it does to Pennsylvania or Virginia.

              1. Look at the name of our country nitwit.

  5. The only downside to this sort of analysis, is that sometimes there are unique usages of words and phrases.

    1. Sometimes the only data you have is that there’s no data. But, typically, when people are using a word or phrase to mean something different from common usage, they’ll explain it.

      1. Which is exactly what was done in the Second Amendment. It is one of only two places in the Constitution where the purpose of a provision is explained (the other is the Patents Clause).

        1. That’s true, it does have a preface, explaining why the amendment was adopted. This doesn’t change that it’s a private right, as are ALL rights of the people.

          But it does help confirm that it’s a right to arms suitable for militia purposes.

          1. It is a Both a community and a private right because the inalienable right to liberty is cloth a community and a private right. But it is also a private right because the inalienable right to life is a very personal right.

        2. There is also the preamble, and just like the preamble of the constitution, the prefatory clause of has no force of its own. It doesn’t need to do any work because the second clause very clearly prohibits infringing the right to keep, and to bear arms.

          But since you bring it up the reason it is there isn’t to limit it, but to explain why it’s a federal question addressed in the constitution rather than left to the states.

  6. Our ultimate conclusion highlights some of the limits of corpus linguistics, at least with respect to the Second Amendment.

    Shorter version of the article:

    “Corpus linguistics is great, except when we don’t like the results.”

    1. bernard, I got a whiff of that too.

      And you can imagine all the juggling behind the scenes: this word, related to that word, at a distance of (how many words?). Does it come out right if we do it that way?

      Never mind if the context of the corpus is inappropriately broad. They take care of that by referring to appropriately narrow context as “cherry picked.” Which I take to mean they are frustrated when some smarty-pants historian takes them to task, saying, “I can tell you what that means in this context.” And then, because they are lawyers, they don’t have sufficient command of the context themselves to argue back. Because who knows as much about historical context as the guy who has spent his life studying that very era, and even the particular events being focused upon? So letting him into the discussion sort of violates the principle of cross examination, that you have to know the answer to the question before you ask it.

      So far, I haven’t seen anything about corpus linguistics to suggest to me that it is intellectually honest. It looks like an attempt by lawyers—who sometimes want to cite history—to end-run the fact that they refuse to consult anyone who knows history.

      And of course there is much more to knowing history than knowing the record itself—which is all corpus linguistics can consult. There is also the matter of professional rules for historical interpretation—an art sometimes referred to as historiography. Mostly, lawyers do not even know that exists. Scalia apparently did not, because in Heller he wrote as if the rules did not exist, with no sign of apology for doing so.

      1. No field is reliably intellectually honest once it begins to have public policy implications. Not law, not science, and not history. Such fields become co-opted by politics and ideologically driven.

        History can be reasonably objective so long as the topic is something with no implications for current controversies. Once it has some bearing on a political fight, like gun control? Look how far Bellesiles got before he was shut down, and that was in time when history faculties were far more ideologically balanced than today.

        So, no, we can’t just leave it to the historians. Why should we trust them, if we don’t check their work? And if we do check it, we might as well do it, too.

        I see corpus linguistics as being like the index to a book, the big book of History. The index doesn’t answer questions, but it does tell you where to look in the book, and that’s a valuable thing.

        1. Bellesiles!

          Again.

          You’ve pretty well worn that one out, Brett. Do you customarily extrapolate from a single data point?

        2. Here is a problem for you, Brett. The folks who think history has major implications for current controversies tend to be present-minded, backward-looking, non-historians. The folks who think history has few if any implications for current controversies tend to be professional historians.

          That latter, smaller group, are mindful that the present-day implications of acts done in the 1780s (if there are any implications today) were so utterly unknown to people living in the 1780s as to rule out historical purposes in any way related to today’s controversies. That telephone wire which you seem to imagine connects the past to the present does not exist. So positing the kinds of conversations you talk about—where long-dead historical actors converse on terms of familiarity to help lawyers clear up today’s controversies—is always regarded as historical error of the most flagrant kind. Thinking that way just makes you seem foolish to folks who have learned enough to know you can’t do that—by which I do not mean that you should not do that, but instead that it is impossible.

          Those long-ago folks had no better ability to anticipate how anything they did would affect today, than you do to guess how Super Tuesday’s primary outcomes will affect stuff folks argue about in 2240. And being unable to guess anything at all about that remote, distant future, you are, of course, completely unable to do anything on purpose to affect it. So where long-ago history is concerned, there are zero implications for current controversies—except for the bogus ones made up today, and read back into the past, by folks who know nothing at all about either the facts of history, or how to interpret them.

          But by all means, if you do not trust historians you know, get yourself trained in history and do it yourself. I have always wondered why some would-be originalist lawyer did not get himself a PhD in founding-era history, write a few books on it, and then clean up as an expert consultant.

          1. You are just the most precious thing I have ever seen!!!

            Here’s the way modern Con Law works—these professors are partisan political operatives with big brains. They use their big brains to get to their desired result. Derpawitz’ recent beclowning impeachment performance showed how absurd all of this really is.

          2. Let me see if I can understand your argument here Lathrop:
            Corpus Linguistics isn’t valid because the lawyers don’t consult historians. But then Historians don’t think history is relevant for deciding these controversies because things are so different today than during the founding era.

            So I’m inferring the proper approach for judges is just assume the mantle of a mini constitutional convention for any constitutional controversy that comes before them and rewrite the constitution to their liking.

            1. Kazinski, not my argument, but close enough to warrant a bit more.

              First, I offer two arguments. One is that unless it consults professional historians, founding-era originalism is destined to misconstrue both the historical record and historical reasoning. Which makes nonsense of any claim that originalism is a method to constrain judicial reasoning. Liberty to misconstrue the facts and the reasoning is liberty to say anything at all.

              My second argument ignores the first, and suggests that an originalist methodology, guided by historical professionalism, could at least shed light to critique some of the more egregious misuses of history in modern public life. It is sort of a suggestion that although origiinalism will almost always prove unfruitful as an aide to building good modern legal arguments, it may enable useful insights to tear down bad ones.

              1. See Bellmore’s comment about intellectual honesty. With respect to the big issues every one of these big brains goes in to analysis with every intention of getting their desired result. The big brains excel in law school because they can argue every side of an argument and then if they want to get appointed to an important clerkship they have to be good little Republicans or Democrats. The big brains also know who their audience is when publishing law review articles.

              2. Stephen,
                Which professional historians would you recommend?

                Even half way decent professional historians such as Patrick Charles let their biases run amok and misread the evidence. The below is from his book “Arms for Their Defence.”

                683 See JOHN ADAMS, A DEFENCE OF THE CONSTITUTIONS OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA 475 (Da Capo Press 1971) (1787-1788). “Individual right”proponents also argue that Adams’ Defence of the Constitution of Government of the United States of America supports their stance. They believe Adams viewed arms ownership as a right because he recognized the propriety of “arms in the hands of citizens, to be used . . . in private self-defence.” Id. This is another quotation that Individual Right Scholars take out of context. Adams was actually articulating a principle that undercuts the “individual right”
                theory. He believed “arms in the hands of citizens, to be used at individual discretion” would be “to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by
                no man—it is a dissolution of government.” Id. There were two exceptions to this rule that society may allow. These were (1) “private self-defence” and (2) through the militia “by partial orders of towns, counties, or districts of a state.” Id. While the former allowance— self-defence—was not articulated as a right—fundamental, natural, or constitutional—the latter was described as “the fundamental law.” As many proponents of the militia believed, Adams felt that “[t]he arms of the commonwealth should be lodged in the hands of that part of the people which are firm to its establishment.” (end quote)

                Had Charles actually read that cite in context he would not have fallen for the crap that Judge Reinhardt spewed in Silveira. There is only one exception in that cite and it is for private self defense.

                Defense of the Constitutions, John Adams
                ”To suppose arms in the hands of citizens, to be used at individual discretion … or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws.

                The phrase “except in private self defence” is in the original where I added an ellipses above. With that lone exception removed we can easily see that Adams was actually opposed to citizens using arms at their individual discretion or on partial orders of towns etc.

                Charles seems not to grasp that “partial” as used here is the opposite of “impartial” and that Adams is in no way making an exception for the use of arms under such orders -instead Adams in denouncing the use of arms for individual or parochial concerns, the lone exception being for private self defence.

                Since Charles badly botched that cite, he did not need to ask himself why Adams would have inserted that exception into a chapter that deals with the proper use of the militia.

                1. Which historians? The best ones, obviously, among those who specialize in the subject matter (meaning not the controversy, but instead the time and place in question). For instance, you do not want any historian who is already on record with a book about the actual current controversy, or closely related to it. That is quite likely someone with the wrong approach to history.

                  What you do want is the most-professionally-respected historian whose expertise includes the the era, the people, and the events in question. That is the guy who learned what happened by putting himself in the shoes of folks who lived then and there, and by reading a vast variety of the things they wrote, and the printed sources they relied upon. His historical aim is to turn himself into the equivalent of one of the best-educated people who lived at that time, by learning in the same way they learned, from the sources they used, or created.

                  Lawyers I talk to suggest that when choosing expert witnesses, there is no substitute for hiring the best guy in the field. That probably means a senior professor at the peak of his career, who holds an endowed chair at one the nation’s most prestigious universities.

                  1. A pity then that the grabbers could only sign on Rakove, Cornell, Konig et al., who went on to embarrass themselves and their profession in their brief in support of petitioners in Heller.

                    To your criteria of what attributes the best historians ought to have, I would add the ability to reason and a willingness to confront all of the evidence. The historians who signed onto the petitioners brief failed miserably in those regards.

                    1. I would add the ability to reason and a willingness to confront all of the evidence.

                      The historian I described confronts all the evidence. That historian will have a broader historical record already read, and largely committed to memory, than most cases typically require. As a model, I think of Edmund Morgan—before he died the nation’s preeminent American historian.

                      Morgan held the chair of Sterling Professor of History at Yale. That accomplishment requires mastery at an unsurpassed level of the historical record relating to some notable historical era—together with the reasoning you mention, and superior writing.

                      Morgan had it all. He read everything: government records, speeches, sermons, diaries, court cases, literature, law books, personal letters, bills of lading, shipbuilders’ techniques, provisioning documents, church records, bank records, merchant records, agricultural records, and on and on. In the aggregate, each document read enriched the others—enabling Morgan more to inhabit the past than to study it.

                      By the time his career ended—when he was in his 90s—Morgan had done that 3 times over, for different times and places. By early middle age, he was the preeminent authority on American Puritans and on the early history of New England—the work that won him his professorship. Then he added similarly deep command of the history of Jamestown, early Virginia, and the evolution of American slavery. After that, he wrote some of the most important and insightful work on the American Revolution. Each of those accomplishments, by itself, could have won him the Sterling Professorship.

                      Historians who aspire to be like Morgan read everything, voraciously, because they are voraciously curious about the times they study. Then they go to conferences, and get different takes from colleagues, and bring those back to their graduate students (who are getting started with reading everything), and everyone hashes it out together. A lot of the material that goes into that body of knowledge is never-published manuscript material, found resting in archives and rare book libraries. So that material is not going to show up in corpus linguistic analysis any time soon. But all of it contributes to context, and to command of contemporary meanings which relate to the era under study.

                      The point of all that, of course, is to understand what happened then, not to figure out if it means anything in particular now. Those two points of view are worlds apart. They mostly have to be kept that way.

                      There is an all-but-insuperable problem. Only the prodigious study done by the historian can prepare a thinking person to view without present-minded bias the record of the past. Too much has happened since. And all that subsequent stuff is known to us, but none of it to them. It takes an actual attempt to submerge yourself in the past—which is the historian’s vocation—to purge that intervening interval of discovery, invention, and change, from the mind of the present—the mind of the present with which we all grow up—and go back instead to try on the mind of the past, and know it accurately—accurately free of influence from everything which happened afterward. And that is the proper historian’s objective, to know what happened then—not to prove anything about today.

                      Another point, about that ability to reason you mention. You must not suppose that reasoning about the past is something with which any modern person is intuitively acquainted. Even reasoning itself must be adjusted and relearned, and for two separate kinds of reasoning.

                      First, people in the past reasoned differently than we do today, with the differences particular to the times and places under study. Learning those differences is, of course, part of all that study I mentioned, so I do not need to go back over that, except to underline its importance.

                      Second, as with many specialist fields—like the law for instance—the study of history comes with its own specially-adapted style of reasoning, well-known to practitioners, and largely unsuspected by others. Those rules of reason have been built up over time, as experience studying history provided examples to show that some kinds of suppositions are more likely to lead to provable errors than other kinds.

                      For instance, it may seem intuitive and reasonable to suppose that if you want accurate accounts of some long-ago event, the best records will be found during an interval closer to the time of the event, than from something more recent. Experience has shown that is generally untrue.

                      Note also, that modern commenters untrained in history often make the error of supposing that examples taken from times subsequent to events under study are likely sources of insight into the events which preceded the examples. Time’s arrow runs in only one direction—a fact which ought to constrain our thinking about causality and proof—so that supposition is not very often true.

                      Likewise, awareness of historical trends which extend continuously into the present invites errors. Many folks are conscious that as you go back in history toward the Civil War, society tended to be more religious, and especially more committed to Christianity, than it now seems to be. And far back in colonial history, the example of Puritanism looms large. It seems intuitive to extrapolate a trend from then to now, and conclude the founding era, in between, was generally more religious, and more Christian, than study shows it actually was.

                      Similar misleading trends run through the history of issues relating to property, and probably of issues relating to gun use, by the way. It turns out that historical trends begin, and end, and sometimes run intermittently, and awareness of the more-recent past may be no guide at all to any other particular past place and time.

                      Another example. There is a tendency to suppose old dictionaries provide historically accurate meanings of antique usages. There is some truth in that. But few if any lexicographers in the 18th century, for instance, enjoyed access to the variety of 18th century usages comparable to the access now afforded to historians by archives. For that reason, a modern historian may be a notably better source on antique word meanings than an antique dictionary.

                      Those are a few examples of guides to reasoning about history. There are a great many more. They are sort of rules of thumb, but you can’t afford to ignore them if you want to think accurately about history. In fact, each example is sort of a rubric, under which more specific rules for good historical reasoning can be found. Most folks untrained in history never suppose such rules exist, and run afoul of them constantly.

      2. Yes, Stephen.

        Consider (emphasis added):

        We performed another search in COFEA, about the meaning of keep arms, looking for documents in which keep and arms (and their variants) appear within six words of each other. The results here were somewhat inconclusive. In about 40 percent of the hits, a person would keep arms for a collective, military purpose; these documents support Justice Stevens’s reading. And roughly 30 percent of the hits reference a person who keeps arms for individual uses; these documents support Justice Scalia’s analysis. The remainder of the hits did not support either reading.

        Why six words, exactly? Why not seven, or five? And if there is an argument that six is the best choice, at least check the results for robustness at other intervals. Doing these two things – justifying the choice of six, and trying maybe four, five, seven, eight to see if the results change materially.

        Another thing a good researcher would do is avoid saying the results are “inconclusive,” just because he didn’t like them. Depending on the number of usages found a 4-3 ratio can be quite significant.

        And of course Blackman might also discuss why his results differ from those of LaCroix et al.

        1. It well could be they picked 6 words because the result set was mananageble at 6 words but at 7 words became so large as to be unreviewable, there is probably a logrithmic progression in the result set.

        2. Re: explain why not 7 or 5 words – I would expect that to be in their larger work to be published presently, rather than in a spoiler post alerting interested readers that a forthcoming published work was forthcoming.

          As for why not N+1 words instead of N many words: there’s a point of diminishing apparent return, which itself can be teased from the context. Since they’ll have to read the underlying work to understand the context as they increase the allowable word count between words to increase the likelihood that those words were using in reference to each other decreases – it’s essentially a sex degrees of Kevin Bacon problem. So when N = 0 then keep(0)arms and arms(0)keep are the only results, and I’d expect them to almost always be related. With N = 1 that’s likely true, but I would expect a high falloff rate from N=2 and up. What they should be looking for is the inflection point – if it exists – where the rate at which increasing the gap effectively stops increasing the hits where the words are related – in other words where essentially all of the matches are of the unrelated category rather than the collective/individual right category.

          1. Kazinski and Robert,

            Yes. I understand those possible reasons. But Blackman still has to explain the choice and provide some backup. Otherwise he creates a distinct impression of cherry-picking the interval. If marginal returns diminish at seven words, as Robert suggests, then say so, and provide a sample of cases to demonstrate it.

            In any event, none of the reasons either of you provide explain why one should choose six rather than five, and in fact I would say that sound scholarship really requires the sort of robustness check I describe. This is especially important since the results seem to differ from those obtained by LaCroix. Surely an explanation is called for.

            1. Let me add a point here.

              They considered all occurrences within six words of each other. (It’s not clear what means exactly. Does it stop when there are four words in between, or five words, or six? A bit of clarity would be nice.)

              That means they considered all occurrences next to each other, within two words, three words, etc., up to six. So it would have been no great burden, while checking these, to mark down the gap as well as the meaning, and to tabulate and present the frequencies at every interval.

              If, the set was becoming unmanageably large, or too many instances were becoming irrelevant, as the gap grew, that would show up quickly.

  7. Bold move here, when the leader of the Volokh Conspiracy was cited approvingly in Heller.

  8. Been awhile since I’ve read Heller but I don’t recall the Court’s rationale as you describe:

    “Scalia concluded that the phrase bear arms “unequivocally” carried a military meaning “only when followed by the preposition ‘against.’” The Second Amendment does not use the word against. Therefore, Scalia reasoned, the phrase bear arms, by itself, referred to an individual right.”

    This also contradicts your description of Scalia’s opinion a couple paragraphs up:

    “The majority opinion, by Justice Antonin Scalia, concluded, among other things, that the phrase bear arms against would always refer to service in a militia. But bear arms by itself—the wording used in the Second Amendment—could sometimes refer to an individual right.”

    So I don’t follow when you conclude:

    “…the word “against” was sufficient, but not necessary, to give the phrase bear arms a militia-related meaning. Scalia was wrong on this particular claim.”

    Setting that aside, I basically agree with where you land on this, but I think your research points to a simple conclusion. We could reasonably expect most writings (90% by your count) concerning the use of arms would involve bigger and more notable occurrences, like military events rather than more routine acts of self defense, critter shooting, or merely carrying a gun for whatever needs may arise. As the phrase “keep and bear arms” is not apparently a binomial, then accepting the common meaning of “bear” would seem logical. How much trouble is caused merely because “bear” is no longer a common verb?

    As you say, the final legal question is more involved. These linguistic tools are helpful but we should bear our wits against a superficial sort of originalism where a possible dominant meaning or mere usage is asserted as legal conclusion. As you contend, the meanings can disprove some facile conclusions.

  9. Or you could, you know, just read the text of the amendment, which is just one sentence, instead of postulating epicycle upon epicycle.

  10. Corpus linguistics is a great improvement over intuition, old dictionaries, and cherry-picked language from polemical sources, but, being an honest method, its results are quite often unenlightening. All too often, when competently done, it leads to the unhelpful conclusion that the term under investigation had a variety of related but different meanings and there is no honest way to tell which meaning applies to the case at hand.

    1. Well, no honest way with corpus linguistics, anyway. You’ll usually be able to find SOMETHING they said on the topic, they had to explain a lot of this stuff while promoting its ratification.

      1. That method is called “intuition, old dictionaries, and cherry-picked language from polemical sources.”

        1. Yeah, looking up what the author said he meant, that’s absolutely cherry picking, who does that?

          1. who does that?

            Lots of people, but usually only after picking out “the author” they have already figured out will support their position.

          2. Well, Saint Scalia only did it when he had an author he could argue supported his inerpretation. When the author was alive, and saying loudly “yeah, no, that’s not what that meant at all” he had no interest in what the author said.

          3. You can’t possibly mean this in this context.

            So when a court case hinges on the language of a law then do we ask Congress what it means, since they’re the legal “author,” or do we ask the legislative aid who actually typed it up for their Congressman?

            “Hey, remember when you wrote this 15 years ago, when you were a kid? What does it mean in the context of this legal dispute? And remember, lives are on the line whatever you say.”

            Now if every single member of a multi-member body who writes separately on the subject uses the language of something they wrote collectively to mean a specific version when writing personally that’s pretty good evidence, but it’s not determinative from the corpus linguistics unless a large majority of those original members wrote such.

            1. Perhaps EE was referring to Scalia’s insistence on seeking the intent of the framers when considering constitutional issues, and his disdain for legislative intent as when considering statutory issues.

              It’s a bit of a puzzle.

            2. You can’t possibly mean this in this context.
              If you’re talking to me, sure I can.

              If originalism should only be applied when interpretting the words of the dead, no one should take you seriously if you’re claiming to be interested in the “original meaning/intent/whatever”.

              That it’s difficult shouldn’t distress you (or anyone else). After all, originalists are already devout students of armchair history, not sure why armchair biographer should be any further of a stretch.

    2. Yeah, no honest way except to have read all the meanings in their various contexts, and learned their meanings by the same method that an educated person of that period would have learned them—as if you grew up reading the written materials of that era, and of preceding eras, but not of later ones. Which is what a historian does.

      It is not impossible that a historian might be confused by a particular meaning in a particular context. In historical writing you see historians note such confusions fairly often, and explain their ambiguities. But what is uncommon is for a good historian, in command of the period and events in question, to be confused about a meaning which would not also have confused someone at the time and place in question. And note, in that case, the ambiguity defeats everyone—while creating a pitfall for an automated tool which can rummage around everywhere, before and after, and drag in irrelevancies, while proposing actually spurious interpretations.

      1. What’s funny is I have been engaging with commenters like Bellmore and Hayden for over 10 years. With respect to the 2A I have won literally every argument I have engaged in with them…and yet they have never altered their opinions about this subject matter. My argument actually changed a little between Heller and McDonald in that I actually supported the outcome of Heller while believing the Heller underlying rationale to be absurd. So even though I disagree with the Heller opinion I believe the outcome—a right to keep guns in one’s home for self defense—to be a very responsible Supreme Court holding. I also realize it changed virtually nothing in America because Americans already believed they had that right prior to Heller/McDonald.

        1. In all seriousness, if you think you always win every argument, you’re either God or delusional. And I have doubts about your divinity.

          1. My opinion of the RKBA actually has evolved, but my opinion of the 2A has stayed the same since the first time we engaged in discourse…in fact over the years on this message board I have laid out the best analysis of the 2A/RKBA of anyone including Scalia, Stevens, and Volokh. The Civil War stuff I just came up with is solid gold 2A analysis…and I have a mere 125 IQ.

            It’s simple—Cruikshank was right and the RKBA only needed to be incorporated using Stevens’ liberty interests analysis from his McDonald dissent. The 2A is a federalism provision, but the 2A like amendments adopted at the state level early on show that Cruikshank was correct—we have always had a right to keep guns in our home for self defense and it has nothing to do with the 2A.

  11. Arguing about what situation ‘keep’ and ‘bear’ ‘arms’ applies to without determining who is referred to by ‘militia’ seems self-defeating. I believe it was a Volokh post, not that long ago, that demonstrated ‘militia’ in the founding era meant any healthy adult male. At which point Stevens has pretty obviously erred, and Scalia’s error is pretty minor because it doesn’t lead to a wrong conclusion.

    To assert that the founders did *not* believe that every person not only could but *should* own and maintain a weapon is well beyond the bounds of a rational conclusion.

    1. Actually the 2A was a response to the events at Lexington and Concord which involved the British trying to capture military supplies stored at Concord.

    2. Blackman is upfront that he is focusing only on one part of the issue. I am reminded of Princess Leia’s retort, “I am not a Committee” in reading your, “‘militia’ in the founding era meant any healthy adult male.”

      What would you interpret the words “well regulated” as it relates to a militia of one (or many)? If “militia” is the key that solves the Amendment, figuring that out would also seem pretty important.

      1. AoC failed in part because the militias weren’t up to snuff. So the Constitution set out to correct many of the failings of the AoC. But keep in mind we became the United States of America before the Constitution, so the several states were in fact “free states” prior to the 2A…they were just suboptimal “free states”.

        1. Et alors?

          1. “well regulated”—see Militia Clause in body of Constitution. Unless you need someone with an over 160 IQ to razzle dazzle you? God has forsaken me with a widdle 125 IQ pea bwain! What have you forsaken me???

            1. Seems you are not well regulated.

              1. Scalia/Volokh argue that militia in the 2A refers to unorganized militia which is essentially every male over 18…which begs the question why the drafters would even use such a broadly defined word when the word “people” existed in olden times??? In fact the 2A even includes the word “people”!?! They acknowledge that in the body of the Constitution the word “militia” refers to the several state militias, aka the organized militia. The aspect that Scalia/Volokh believe undermines the state militias as a check on tyranny is the fact the federal government has some control over the state militias. So the federal government can simply call forth the state militias rendering them useless as a check on tyranny by the federal government. That seems to make sense…except for the fact the Constitution gives the states the power to appoint officers which means the state militias will always be loyal to the states. Once again—to see how this dynamic plays out one should read about a little known historic event called the “Civil War”.

                Finally, here is the entirety of how Scalia deals with “well regulated”:

                Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (“Regulate”: “To adjust by rule or method”); Rawle 121–122; cf. Va. Declaration of Rights §13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well-regulated militia, composed of the body of the people, trained to arms”).

      2. The phrase “well regulated” meant something quite different in colonial america than it does today. It has nothing to do with government regulations. It means something along the lines of ‘in good order’, to whit, the militia (all healthy adult males) should be *practiced* in use of said weapons, and should have suitable equipment (at the time: powder, shot, a cast for making shot, in addition to the weapon).

        The founders, for example, would have considered an unregulated market to be ‘well regulated’ (ordered by Smith’s invisible hand).

        1. “well regulated” inconsequential to the point of being meaningless
          “militia” broadest definition to the point of meaning something else entirely
          “free state” unspecific/general meaning in the context of a country with the name United STATES of America

          Do you notice a pattern?? Why were the people that wrote the 3rd Amendment writing with such broadly defined and unspecific words?? It’s almost like Scalia engaged in liberal constructionist analysis. 😉

    3. To assert that the founders did *not* believe that every person not only could but *should* own and maintain a weapon is well beyond the bounds of a rational conclusion.

      Not if your standard for rationality includes as rational the usual professional standards for analyzing the historical record. By those standards, Squirrelloid, you have a lot of work to do, and a bar so high you probably can’t get over it.

      Also? What in your opinion connects what the, “founders,” taken generally, believed, with what they wrote into the Constitution and the Bill of Rights? Most historians would suggest you have to find the evidence for that specifically in the record of the events and processes used to create those documents. The notion that you could do it by picking out whatever quotes you could find from the entire corpus of late 18th-century political commentary would get you laughed out of even a fairly bad graduate seminar. The founders thought a great many more things than they chose to put into the constitution. Your task is to identify in the historical record of those events and processes the specific evidence which makes the case for the points you assert. Good luck.

  12. “The Second Amendment in particular poses distinct problems for data searches, because it has multiple clauses layered in a complicated grammatical structure.”

    One sentence, guys, one sentence. It’s not Ulysses.

  13. So, if the Second Amendment is intended to give us the right to form militias to defend ourselves against tyrannical governments, who decides when it’s time? Would anti-Trumpers now have the right to rise up against him, or would that be treason? And if Sanders wins, at what point in his regime would the people have the right to form militias to overthrow his government?

    1. “So, if the Second Amendment is intended to give us the right to form militias to defend ourselves against tyrannical governments, who decides when it’s time? ”

      Well, everybody decides for themselves, and if you’re too far ahead of the curve, you get slaughtered. No joke, that’s how it works.

      “Would anti-Trumpers now have the right to rise up against him, or would that be treason?”

      Treason doth never prosper, what’s the reason? For if it prosper, none dare call it Treason. It’s treason if you lose, righteous revolution if you win.

      “And if Sanders wins, at what point in his regime would the people have the right to form militias to overthrow his government?”

      Based on his statements on the campaign trail? Some time in late January 2021. But I guess we can wait to see if Congress impeaches him, or tries to enable him.

      1. Look at the name of our country…it is literally right there in the name of our f ing country!!

      2. “And if Sanders wins, at what point in his regime would the people have the right to form militias to overthrow his government?”

        Based on his statements on the campaign trail? Some time in late January 2021. But I guess we can wait to see if Congress impeaches him, or tries to enable him.

        Why, Brett? Because you don’t like some of the things he wants to do?

        Let’s say, implausibly, that Congress passes a Medicare for all bill. OK. You’re against it. But do you really think it would justify armed rebellion? What about a tax increase?

        Under what circumstances do you think a law duly passed by Congress and signed by the President would justify rebellion? Assume, for the sake of discussion, that there is no constitutional issue or that the Supreme Court – which has, of course, a right wing majority – rejects a constitutional challenge.

        I mean, you’re always making noise about armed rebellion. That sort of means you don’t really accept the legitimacy of the government.

        1. Well, yeah, I don’t like some of the things he wants to do. I’m too old to spend my last years in a gulag.

          So, Bernard, just how much of the economy would he have to nationalize to lose YOU? Obviously your line in the sand is more than 50%; Would 99% be too much?

          “I mean, you’re always making noise about armed rebellion. That sort of means you don’t really accept the legitimacy of the government.”

          “Legitimacy” is a complex subject; The “legitimacy” of government can be analyzed from within, and from without.

          From within, you ask if all the rules were followed. From without, you can say, “If the rules permit THAT, screw the rules.”

          I really doubt that Bernie’s plans are legitimate in even the “within” sense, barring some major constitutional amendments. But even if they were, they’re illegitimate in the “without” sense.

    2. How did Jefferson Davis organize his little rebellion?? Let me give you a hint—United something of America.

    3. Its not about “tyranical governments”. Its about the right to defend oneself or community or state from insurrection, rebellion, invasion, riot, and, if necessary, armed usurpers of constitutional order.

      2A supporters arn’t contemplating using arms to repel legislation or officials they disagree with.

      1. Duh, what’s the Civil War?? What are those lines on a map that separate states from each other?? Why did a federal officer like RE Lee choose to fight for Virginia and ‘Murica?? Enquiring minds want to know! 😉

  14. The 2A is very easy to understand…that is why we have a group of people all with IQs over 160 here to explain its meaning! Why don’t you use your big brains do something useful like design spaceships so we can go to Mars??? The very fact we know you have a high IQ undercuts every argument you make in the field of law. Only a jury that doesn’t know who you are would be fooled by your razzle dazzle.

  15. Some things at the time of the original drafting were just so freakin obvious that the draftsman would not have even bothered to articulate it. Specifically, here, the ubiquitous use of arms for self defense/hunting in the colonial farm and frontier would be just a given, and assumed within the “keep and bear”.

    No founding father was concerned back then with a later Google search. (a search designed for the purpose of laughably suggesting one of the first two Bill of Rights provisions was wordily constructed to grant “rights” and power to a government entity.

    1. The 2A is a federalism provision similar to the Establishment Clause. So the Establishment Clause prohibits the federal government from establishing a national religion and that is its only purpose. So just as the 3A and 4A were direct responses to abuses of power by the British, the 2A was in response to the events at Lexington and Concord which involved Mass militia military supplies.

    2. Grifhunter, what makes you think use of arms in the colonies was “ubiquitous?” How many muskets were there, and how do you know? How many fowling pieces? How much gun powder was made and sold in the colonies?

      Leaving those answers aside, and taking “ubiquitous,” as true, what evidence does anyone have that a right to keep arms for self defense was actually intended to be included in the federal constitution, as opposed to being left out, and variously guaranteed by each of the states, according to their differing standards. One can hardly suppose that a right for every person to be armed for self-defense, however supported it might be in the North, would have been approved alike in the slaveholding South. Why not suppose that delegates to the convention, lacking any single formula to satisfy all, decided instead to let each state take care of that problem on its own terms?

      1. Query—why does a liberal justice like Stevens suddenly become a strict constructionist when writing about the 2A?? So I suggest you read Stevens’ McDonald dissent which is the opinion he should have written for Heller. Unfortunately in McDonald Stevens’ provides excellent analysis and then at the last second he let his partisan hackiness get the better of him. Liberals would have served their judicial philosophy much better had they found a right to keep a gun in the home for self defense as part of the larger right to privacy…instead they let Scalia create a right out of the 2A and didn’t expand the base of people that support the right to privacy.

  16. The Second Amendment begins, “A well regulated Militia, being necessary to the security of a free State. . . .” This prefatory clause announces that its purpose has something to do with military service.

    Except according to Heller the RKBA is not connected to service in the military.

    1. In the 18th century, militias were not ‘military service’. Militias were the people, come together to defend themselves by force of arms. Every healthy adult male is part of the militia, whether they want to be or not, and they are ‘well regulated’ (by 18th century usage) when they own arms and are practiced in their use.

      So no, the 2nd amendment has *nothing* to do with military service. It’s about the people being capable of gathering together and acting for the common defense.

      1. That’s a quote from Blackmon’s law review article. Scalia said the 2A protects an individual right to keep a gun in the home for self defense.

        1. First of all, being part of the militia has nothing to do with ‘military service’. The militia was informal, not a military.

          Second, the militia *is about self-defense*.

          Third, keeping weapons in the home would have been necessary for the operation of the people as a militia. Also, you may have forgotten the colonists objected to the British troops trying to take their guns?

          Finally, the opening clause gives *a* reason for the right, not all possible reasons. That people needed to own and be familiar with arms to defend themselves supports a right to keep and bear such arms. It need not be the only acceptable use.

          And the founding fathers weren’t exactly silent on this issue:

          “No free man shall ever be debarred the use of arms.”
          – Thomas Jefferson, Virginia Constitution, Draft 1, 1776

          “The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed.”
          – Thomas Jefferson, letter to to John Cartwright, 5 June 1824

          “To disarm the people…[i]s the most effectual way to enslave them.”
          – George Mason, referencing advice given to the British Parliament by Pennsylvania governor Sir William Keith, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, June 14, 1788

          “I ask who are the militia? They consist now of the whole people, except a few public officers.”
          – George Mason, Address to the Virginia Ratifying Convention, June 4, 1788

          “The right of the people to keep and bear arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country.”
          – James Madison, I Annals of Congress 434, June 8, 1789

          And so on…

          1. Lexington and Concord involved military arms stored at one location. So the 2A was a response to that event. So in order for Virginia to be a free state it needed a well regulated/organized militia. So anarchy bad, liberty good, tyranny bad, law and order good.

            We have an individual right to keep a gun in our home for self defense—see Cruikshank.

          2. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country.”

            Though I tremble at the thought of disagreeing with Madison, I have to say that that is certainly untrue today, and has been untrue for a long time.

            1. I think you aren’t necessarily disagreeing with Madison, but perhaps recognizing the unfortunate truth that contemporary America lacks this “most natural defense of a free country”, and has for quite some time. That said, even during the Revolution, only a small portion of the colonists went toe-to-toe with the redcoats, so perhaps today really isn’t all that different.

              1. Lexington and Concord involved the Massachusetts militia.

              2. No. I’m disagreeing with him.

                I don’t think a militia would do well against a modern professional army. Do militias have tanks, long-range artillery, airplanes?

                1. Jefferson Davis was in a militia—the Mississippi Rifles. He had to get the federal government to supply real infantry rifles…so the men didn’t supply their own long guns.

                  And when Davis led a little rebellion we refer to as the “Civil War” he organized an army with military weapons from captured federal forts and the state organized militias, and the CSA was able to purchase some military arms after secession. So the unorganized militia was a non factor in that rebellion.

  17. Excuse me, but this entire project goes the wrong way. “What is the meaning of six words”? No. What is the purpose of the “Bill of Rights”? Was it to lay out what “rights” the states had? NO. States don’t have “rights”. They have POWERS. The “Bill of Rights” was meant to be a restriction on the power of the central (US) government to infringe on the rights of citizens. Period. End of story. Until the 14th Amendment applies those principles in the “Bill of Rights” to the state. So the Second Amendment is an individual right of “the people”. Something I recognized in Mr Nobles American History class circa 1964.
    One purpose was to enable a local militia. But that is NOT “the right” guaranteed by the Constitution. For instance, what is the purpose of the following sentence? “A diverse library being necessary to an educated population, the RIGHT of the PEOPLE to keep and read information shall not be infringed”. So is the “right” where only a “library” is allowed to have information? Why don’t you run that sentence thru the “corpus” detector and see what result you get.

  18. Josh said: “Thus, even if Scalia was wrong about the most common meaning of bear arms, he may still have been right about keep arms.” However, with regard to Scalia’s treatment of “bear arms,” Josh is knocking down a straw man.

    After citing various sources Scalia actually concluded: “These provisions demonstrate—again, in the most analogous linguistic
    context—that “bear arms” was not limited to the carrying
    of arms in a militia.” That is hardly the same as making a claim to the most common meaning.

    Later Scalia challenges Stevens’ use of a similar earlier study counting and categorizing the use of the phrase “bear arms” in the founding era:

    “Moreover, the study’s collection
    appears to include (who knows how many times) the
    idiomatic phrase “bear arms against,” which is irrelevant.
    The amici also dismiss examples such as “ ‘bear arms . . .
    for the purpose of killing game’ ” because those uses are
    “expressly qualified.” Linguists’ Brief 24. (JUSTICE
    STEVENS uses the same excuse for dismissing the state
    constitutional provisions analogous to the Second Amendment
    that identify private-use purposes for which the
    individual right can be asserted. See post, at 12.) That
    analysis is faulty. A purposive qualifying phrase that
    contradicts the word or phrase it modifies is unknown this
    side of the looking glass (except, apparently, in some
    courses on Linguistics). If “bear arms” means, as we
    think, simply the carrying of arms, a modifier can limit
    the purpose of the carriage (“for the purpose of self defense”
    or “to make war against the King”). But if “bear
    arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply
    cannot add “for the purpose of killing game.” The right “to
    carry arms in the militia for the purpose of killing game”
    is worthy of the mad hatter. Thus, these purposive qualifying
    phrases positively establish that “to bear arms” is
    not limited to military use.”

    So while the Corpus Linguistics approach may provide and more thorough search and count of the use of the phrase “bear arms” than the study available at the time, it does not add or detract from the arguments made in Heller.

  19. Your Atlantic essay mischaracterized Scalia’s point about the term “bear arms against”:
    “Scalia concluded that the phrase bear arms “unequivocally” carried a military meaning “only when followed by the preposition ‘against.’” The Second Amendment does not use the word against. Therefore, Scalia reasoned, the phrase bear arms, by itself, referred to an individual right.”

    Scalia doesn’t rely at all on the absence of “against” to conclude the 2nd was an individual right, he concludes from the gitgo that “right of the people” is a term of art conferring an individual right:
    “We start therefore with a strong presumption that the Second amendment right is an individual right…”

    His discussion of the difference between the terms “bear arms” and “bear arms against” only comes in refuting Steven’s dissent which claims “bear arms” is a term of art solely referring to militia service, Scalia notes almost everywhere in Stevens’ sources the term was “bear arms against”. Needless to say Scalia is not using Stevens’ dissent to build his own case that the Second is an individual right, he is merely pointing out that Steven’s sources don’t say what Stevens thinks they do.

    I hope you do a better job on that topic in your final paper.I

    And as for the assertion that “One found that references in the database “to hunting or personal self-defense” for the phrase “bear arms” were “not just rare, they are almost nonexistent.” The phrase “keep arms,” the brief stated, was also used “almost exclusively in a military context.””

    That is also misleading, because the sources Scalia used for that proposition were the well known and prominent provisions in the state constitutions that used some flavor of “bear arms in defense of themselves and the state”. The fact that there are not many state constitutions and there are only about a half dozen instances of that construct does make them rare, however they are very prominent.

  20. How deep is a navel?

  21. Louisiana Governor Francis Nicholls: “Every citizen of this state has a right to keep and bear arms in conformity with our militia laws.”

    No linguistic gymnastics needed.

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