Why Corpus Linguistics Does Not Undermine DC v. Heller (Much)

My contribution to a recent conference/symposium at the Duke Center for Firearms Law

I recently participated in a conference on the application of legal corpus linguistics to the Second Amendment, a topic I've long wanted to make up my mind about. My tentative conclusion is that the corpus linguistics evidence does not undermine much of the Supreme Court's opinion in DC v. Heller. As part of the conference I have a blog post, Heller Survives the Corpus, at the Second Thoughts Blog, hosted by the Duke Center for Firearms Law.

Here's the intro:

District of Columbia v. Heller, meet legal corpus linguistics. Opponents of the decision are excited to have a new lever that might dislodge it. Proponents of the methodology are excited to have a great victory to prove their methodology's worth. But in my view most of this excitement is premature.

And from the analysis:

In the course of supporting [its legal] conclusions, the Court invoked at least five historical premises. These include: (1) the conclusion that the prefatory clause does not limit the scope of the operative clause; (2) the conclusion that a "right" belonging to the "people" is an individual right; (3) the conclusion that "keep arms" included having weapons in one's home; (4) the conclusion that "bear arms" does not connote participation in a structured military organization; (5) the conclusion that individual constitutional rights can be regulated largely based on historical analogs rather than public interest balancing tests.

….

The evidence on premise (2) ("the right of the people") appears weak. While there are examples in the corpus of a "right of the people" being used collectively, Heller's chief reason for rejecting such a reading was constitutional context: other provisions of the Constitution (viz, the First and Fourth Amendments) use the "right of the people" to refer to an individual right, so it is likely that the Second Amendment did so as well. This is a good example of the limits to legal corpus linguistic analysis. The use of a phrase in other contexts cannot do much to rebut a claim made from the context of a particular document.

The evidence on premise (3) ("keep arms") appears even weaker, with no showing that it clearly meant something else.

That leaves premise (4) ("bear arms"). Here there seems to be abundant evidence – much more evidence than one would expect from reading the Court's opinion in Heller – that most uses of the phrase in the corpus appear in a military context.

This finding might be enough to dislodge Heller's premise (4), but that is not certain, for at least two reasons:

First, the fact that a phrase usually appears in a particular context is only indirect evidence about its meaning in the context under examination. (Consider this parable.) That is especially true when the Court relies on context-specific evidence for its reading, such as Justice Scalia's argument that mixing non-idiomatic and idiomatic uses is analogous to the "grotesque" phrase "he filled and kicked the bucket."

Second, many instances in the corpus demonstrate a military context, but not all of them demonstrate a military (or military-only) meaning of the phrase. Perhaps "bear arms" meant "fight a war" or "serve in the militia." But perhaps it merely meant "carry and/or use a gun (in the way prototypically associated with soldiers)." The second definition would undermine far less of Heller than the first.

This brings us to the final upshot. If Heller was wrong, even clearly wrong, about premise (4) it does not follow that the dissent's view, or a "collective rights" view, was correct. Even a somewhat generous reading of the legal corpus linguistics evidence against Heller could still support an individual right to keep weapons, as well as an individual right to use weapons that have some military connection. This might suggest less protection for handguns and more for military rifles (or even for body armor). In other words, perhaps corpus linguistics indicates that Heller erred in denying the military flavor of the Second Amendment right without erring in concluding that it was an individual one.

Comments

[ragebot]

Is it possible some peeps are over thinking what the 2A means?

[Kevin Smith]

Yes, but which ones? lol

[Sebastian Cremmington]

The individuals that believe “state” refers to “country” and “militia” refers to “unorganized militia” and that “well regulated” is meaningless. But they had to read too much into the 2A in order to establish an individual right (that for some reason needed incorporations?) while staying true to a conservative judicial philosophy. Btw, the best opinion of Heller and McDonald is Stevens’ McDonald dissent…all the others belong in the trash.

[Kazinski]

"The individuals that believe “state” refers to “country”"

So the State Department is the federal department tasked with regulating the 50 states?

I never knew that, I always thought it was the department that was charged with managing the relations between other Free States.

[Sebastian Cremmington]

Did you know the name of our country is United STATES of America? Do you think the Framers believed the states were “states” in the 2021 sense or “free states”?? In 1861 why do you think so many federal military officers were loyal to their states and not the federal government?? Do you think maybe RE Lee believed Virginia was a “free state” and he was loyal to the state in which all of his property happened to be in??

[Pettifogger]

Mr. Cremmington, if the 2nd Amendment is not an individual right, then it would be a right of the states against the federal government, would it not? Such a right of the states would entitle them to establish militias and order that they be equipped with weapons otherwise restricted by federal law, e.g., M4s, machine guns, mortars, Stinger missles, etc. That would be cool.

[Sebastian Cremmington]

Correct, federal government sets the minimum but the states are free to go above and beyond.

[Miles Fortis]

'overthinking it'?
The ones who have it wrong are the ones who put forth the bullshit that the 2nd amendment is a limitation on the people. It Is Not.
It limits the federal government, and through 'incorporation' via the 14the amendment, also a limit on the states and their political subdivisions.

[Miles Fortis]

Yes. The Bill of Rights' own preamble makes it clear that the amendments contained in it WERE RETRICTIONS ON THE POWERS GIVEN TO THE FEDERAL GOVERNMENT, not limintations or restrictions on the people.

[santamonica811]

"...a topic I've long wanted to make up my mind about...."

[Only because the OP is about linguistics] What an interesting sentence formulation. Grammatically, it's perfectly fine. And its meaning is clear. But it immediately reminded me of one of my favorite poems:

Morris Bishop's "The Naughty Preposition":

I lately lost a preposition:
It hid, I thought, beneath my chair.
And angrily I cried: "Perdition!
Up from out of in under there!"
Correctness is my vade mecum,
And straggling phrases I abhor;
And yet I wondered: "What should he come
Up from out of in under for?"

[Longtobefree]

Kid to dad at bedtime"
Why did you bring that book I don't want to be read to out of up for?

[Brett Bellmore]

"In other words, perhaps corpus linguistics indicates that Heller erred in denying the military flavor of the Second Amendment right without erring in concluding that it was an individual one."

I think that's been evident all along. You can go back to Tench Coxe, and his "every terrible implement of the soldier" for evidence that the 2nd amendment was originally intended to protect the ownership of military arms.

Indeed, it is only historically recently, since the enactment of 20th century federal gun control, that military and civilian arms in America even became distinct. And the break occurred after Miller, which hinged on whether the gun in question had any military utility, in which case ownership of it would have been protected.

After Miller, the Court infamously spent nearly 80 years refusing every 2nd amendment case to come its way, and gun control laws grew up in that legal void, forcing a wedge between military and civilian firearms. But this was not the case during most of our history, and certainly not at the time the 2nd amendment was adopted: They were identical.

[Sebastian Cremmington]

Yes, in Savannah and Charleston many homes have a canon right next to the stepping step. There is no way you people can believe the poo you type out.

[Toranth]

Privately owned cannon were quite common, even before the US was in existence.
No, not everyone owned one - the same way private planes and civil pilots in the US are common, but not everyone has/is one.

[Sebastian Cremmington]

Jefferson Davis led a militia in the Mexican War and his condition for forming it was the federal government had to supply them with the latest rifles—those rifles belonged to the state of Mississippi and not the volunteers…ipso facto—they didn’t posses military grade weapons.

And the same dynamic was at play in the Civil War in which the guns used were either confiscated from federal forts or supplied by state militias or bought by the CSA Army with funny money. So individuals with guns didn’t battle tyranny in 1861…states seceded and the states formed a confederacy and the confederacy formed an army. So the STATES were instrumental in battling tyranny but individuals with guns coming out of the woodwork never happened when tyranny reared its ugly gaunt horse face.

An example of the unorganized militia with their own weapons would be the KKK and Timothy McVeigh…so the unorganized militia with guns foments anarchy which the Framers feared equally as tyranny.

So aunorganized militia with

[Brett Bellmore]

By this reasoning, because some people own beaters, jeeps are not civilian cars.

[Hank Ferrous]

Did it occur to you that the ownership of the latest technology, or getting some shiny goodies, might have been a bargaining ploy? Or military necessity? And if it was not, that economic factors, bottlenecks in importation or manufacturing might have made it less likely that each militia volunteer would be kitted out with identical rifles on their own. Your arguments tend to be based on applying modern standards to historical times, which is typical. I trust that you aren't a proponent of 2A only allowing a Brown Bess, while disregarding the language of the time in which it was written. Shorter, you are repeating in-group bias based 'knowledge' that is not factual.

[Toranth]

Wow, you are getting way off into loo-loo land here.

State armories exist because the governments can more easily procure large quantities of standardized arms and ammo. This does not mean that private individuals did not also own those weapons. Trying to claim that because one exists the other cannot is a logical fail of the most remarkable order.

On top of that, your historical claims are just plain wrong. There were many guerrilla groups that fought in the Civil War, on both sides. Some of them were quite successful, defeating formal military units of their opposition in open battle.

[Sebastian Cremmington]

Then how do you explain Jefferson Davis demanding the federal government provide military grade rifles to his militia?? I have already acknowledged that the unorganized militia has been a force In American history—the KKK existed and is an example of the most impactful unorganized militia in American history.

[HackJackerson]

Because Davis wanted he and his boys to have the next best thing, but he also didn't want to use his/their own money to obtain them.

[Sebastian Cremmington]

So are you expecting the federal government to supply you with military grade weapons and ammo??

[Toranth]

If I thought I could convince the government to give them to me, why not ask?
Did he claim that the government was obligated to give them to him as some sort of 2nd Amendment 'right'?

If not, why are you even talking about it?

[Brett Bellmore]

Heck, my neighbor back in Michigan had a cannon in his front yard. And he'd fire it occasionally, too.

[MaddogEngineer]

This analysis seems to me mostly beside the point, because of what the militia was at the time of the amendment adoption. Trying to strain a distinction between military and civilian/personal gun ownership is contrary to what the militia was. Just because it has somewhat evolved into the current National Guard does not abolish its original context, nor does it mean the militia could ever be abolished. It stands outside of formal government as a check, in contrast to a standing army.

The presumption of the amendment is that the people will always be armed, keeping and bearing arms, so that the militia can be called out whenever necessary. Including to check a despotic government.

[Stephen Lathrop]

Will Baude, assuming an individual right to bear arms at the time of the founding, what evidence does corpus linguistics deliver to show that it was a federal individual right, written into the Constitution purposefully by the founders?

I have my own admittedly historically sketchy interpretation, that the founders (somewhat tacitly) avoided deliberately confronting the question of federalizing a personal right to bear arms, because it would have come to grief in disputes among pro-slavery states and anti-slavery states.

If I am correct, then it is plausible to suppose the founders were content to leave all questions of individuals' rights to arms to the states, to be decided variously according to state differences over slavery. That would suggest corpus linguistics would turn up in the founding context itself little or no explicit evidence of federal arms guarantees for individuals, except in connection to militia service. What did you find?

[Sebastian Cremmington]

The BoR creates no “individual rights”…the 14th Amendment creates individual rights. That is what is so dumb about Heller…Scalia believes the 2A creates a federal individual right but it apparently only applied to Americans in DC and federal territories and the justices in Cruikshank didn’t realize that the 2A was different than the other amendments in the BoR in that it did create an individual right and it wasn’t merely a limit on Congress.

[David Lawson]

The case was limited to the Federal Govt and did not have the scope to address the various state govts.

Conservative justices tend to avoid scope creep.

[Kazinski]

So the 4th amendment was only a limit on congress? The 6th amendment didn't really create an individual right to a jury trial, a judge or the administration could do as they pleased as long as congress didn't pass a law. Federal prisons could ignore the 8th amendment administratively, but congress couldn't pass a law telling them to ignore it?

The Justice's in Cruikshank got it right, and the modern court has lost its way? I suppose next you are going to say Fred Scott, Plessy, and Korematsu were all rightly decided and the modern court doesn't know what was so plain to the old school justices.

[Sebastian Cremmington]

America is a racist country and so the Court got those cases correct because the justices were racists living in a racist country.

With respect to the 4A…why was Mapp v Ohio necessary if it was an individual right that applied to all Americans?? Because everyone understood the BoR only applied to the federal government. In the 2A if one reads “state” to mean “the several states” and “militia” to mean “state militia” then the 2A is like all of the other amendments in the BoR limited to the federal government. However if “state” means “country” and “militia” means “unorganized militia” (which is simply a made up thing) then you apparently have a right for everyone in federal territories keep and bear arms but doesn’t apply to citizens in the states unlike the 4A because US Attorneys and US Marshals existed and operated in the states!!!! So the notion the Framers would create a right solely for people living in DC and federal territories is absurd!

[Squirrelloid]

The constitution creates no rights. The rights are pre-existent. (Hence the 10th amendment). Instead, the BoR explicitly calls out some rights (without limiting claims to other rights) as things the federal government definitely cannot do.

Also, all rights are individual, and no one in the founding generation would have believed otherwise. There's no such thing as a collective right. The BoR restrains the federal government because its an addendum to a document about what powers the federal government can use. Prior to incorporation of the BoR against the states, limitations of state power was left up to state constitutions. The rights, however, remain individual rights that need no recognition from government to exist (and the extent they are abridged is evidence of tyranny).

[Sebastian Cremmington]

Nope, the 2A is a federalism provision like the Establishment Clause. Cruikshank is correct with respect to the RKBA…incorporation hadn’t been developed at the time and so the ruling was correct at the time.

[Bruce Hayden]

Heller said no. Sorry.

[Sebastian Cremmington]

Everyone knows Heller is absurd and that Stevens’ Heller dissent is the proper strict constructionist interpretation of the 2A…which is in itself absurd because Stevens isn’t a strict constructionist!?!

[Stephen Lathrop]

Also, all rights are individual, and no one in the founding generation would have believed otherwise.

Ben Franklin believed otherwise. Franklin represented several colonial legislatures in England, and it fell to him to try to present their (collective) petitions to the British government. Franklin insisted that colonial governments had a right to petition, and be heard, and reckoned the spurning of those petitions as a principal cause of the American revolution. The right to petition you read about in the Constitution is at least as much about that history as it is about any individual right.

Thoughtful people don't take absolutist positions about rights. Too many problems. For instance, the term, "all rights," of course includes rights which conflict with each other, and rights claimed by cranks but not generally. They can't all have been pre-existent together, because too many of them cancel each other.

And as a practical matter, the sovereign People of the United States created all the rights they decreed in their Constitution. Those are the only ones you can count on sovereign power to enforce against government. Non-enforcement of other rights you may have floating around in your head is not evidence of tyranny by this nation's sovereign.

[Brett Bellmore]

No, that's not true. There are some procedural rights, such as the right to a trial by jury, which make no sense as free floating preexisting rights, because they're only rights to particular procedures in a government context.

If the government does not charge you with a crime, where do you go to vindicate your right to a jury trial? Do you have a right to vote next Tuesday, and if the Constitution were amended to abolish an elective office, would that violate your right to vote for it?

[Bruce Hayden]

Not free floating, but in the case of the right to a jury trial, based on centuries of British Common Law.

[Miles Fortis]

You're correct that the BoR 'creates' no rights.
But you lie by omission.
The BoR restricts the government, and via the 14th A the states.
Even SCOTUS in Dred Scott states that RKBA was in existence BEFORE the U.S. was the U.S..

[David Lawson]

I was one of the individual plaintiffs in McDonald v Chicago and had "discovered" the 2nd Amendment after wondering why I wasn't allowed to have a handgun in my home.

I spent a few years researching the 2nd Amendment and subsequently became very active in Right to Carry in Illinois and also the suit against Chicago.

My feeling is that Scalia erred in Heller by ignoring the military context of the 2nd. I also feel they should revisit "in common use" given, as others stated up-thread, that the Gun Control Act of 1935 and the 1986 law has kept certain arms that were previously in common use from us in the subsequent era of Gun Control.

My own personal standard with respect to which arms should unrestricted is to keep us at the level of our police capability. If anyone is going to be sent after us in a tyrannical fashion I'm pretty certain it will start with them. Now given that the military has been up-armoring our police forces sounds like they want us to have military-grade weapons, but not crew-served.

The Biden F-15s/Nukes comment is laughable. Imagine what the public opinion would be if they started bombing neighborhoods in our country. The really can't use those weapons against us. Even so, I expect there'd be a substantial crisis of morale were our soldiers given orders to attack us.

Also, the people, even just the gun-owning people, massively outnumber our standing army, and also including the various police forces.

[Sebastian Cremmington]

Actually the outcome is 100% correct in Heller—you have a right to keep a gun in your home for self defense. You can get to that right in a myriad of ways including just incorporating Cruikshank which simply says every American always had the right to keep guns for self defense, but it has nothing to do with the 2A. Stevens’ McDonald dissent is the best opinion…unfortunately he let his partisan hackery get the best of him and undermine his analysis.

With respect to guns outside the home Kavanaugh has already stated he goes by “text and tradition”…and traditionally guns have been heavily regulated outside the home with pro-2A presidents like George HW Bush signing federal school zone legislation. So I predict the Court will find a right to carry guns outside the home…but it will be subject to heavy regulation and so NYC can outlaw guns outside the home with school zones covering the entire city. ACB already showed her hand with Fulton in that she isn’t going to be a radical and make rulings consequences be damned.

[David Lawson]

Such heavy regulation as you cite is very recent and has not been tested at SCOTUS. "Traditionally" has to go back at least to the founding and prior to English Common Law (with the caveat that the founders specifically set out in the bill of rights to redress issues they had with English Common Law).

Give such a long view, it is the heavy restrictions that our "novel" and need to be addressed.

[David Lawson]

"are novel", LOL

[Sebastian Cremmington]

Actually very early on states started outlawing concealed weapons.

[David Lawson]

Yes, concealed, but not openly carried. People nowadays are more likely to prefer they be carried concealed.

Even as staunch a 2A guy as I am, I was off-put by a gentleman carrying a 1911 in a shoulder rig that caused those of us behind him in line to stare down its barrel.

I prefer to carry concealed for the tactical advantage. To my way of thinking, openly carrying is tantamount to having a "shoot me first" sign. This is backed up by countless instances of armed robbery where cops and security guards are targeted first.

[Sebastian Cremmington]

The case of Kyle Rittenhouse shows how dangerous open carry can be in 2021. So Rittenhouse was attacked by a suicidal mentally deranged criminal and then an imbecile attacked Rittenhouse not knowing what was going on and then Rittenhouse injured a 3rd person in the chaos. So open carrying in an urban area can be dangerous for the person carrying and the people around the person open carrying as it attracts suicidal homeless people. That said, states have long standing laws prohibiting guns inside bars and I don’t see the Supreme Court striking down laws banning guns in bars.

[David Lawson]

Of course there will be TPM restrictions imposable by the Fed Govt and the states that will survive even strict scrutiny.

[Toranth]

"Injured a 3rd person in the chaos" is a funny way to phrase "shot a companion of the guys that had just attacked him as the guy was raising a gun to point at him".

[Sebastian Cremmington]

I’ve seen the video so I know Rittenhouse is innocent in the first two killings because they were clearly self defense. The 3rd guy I’m not sure about because shots are being fired and so it makes sense to take out your gun…but he is running towards Rittenhouse but I don’t know if that means Rittenhouse can shoot a person running towards him with a gun??

[David Lawson]

Of course. The advancing gunman constitutes a deadly imminent threat of death or grave bodily harm.

[Sebastian Cremmington]

Why? A person with a gun can shoot you at a distance…what is so menacing about advancing with a gun without shooting it?? Do you believe the St. Louis couple should have been prosecuted for displaying their guns?? I don’t…because guns don’t frighten me like when Governor Reagan peed his panties when scary Black dudes started open carrying in the late 1960s.

[Brett Bellmore]

"what is so menacing about advancing with a gun without shooting it??"

They're advancing to have a better shot at you, that's what is menacing. Just because you could shoot somebody from 100 meters with a handgun, and maybe hit them if you were lucky, doesn't mean it's not more dangerous for you if they close with you.

[Bruce Hayden]

It of course depends on context. If someone is pointing most handguns at me at 100 yards, I probably not be able to reasonably claim an imminent fear of death or great bodily injury. That’s because most people probably can’t hit the broadside of a barn at that distance. At 5 yards, they probably can’t miss. Took a point shooting class recently, and within 4 hours, the instructor had everyone in the class double tapping at 3-4 yards into less than a couple inches at center mass. Most of us were doing quarter sized, and the guy next to me was just widening his original holes with his 2nd shots. If someone is advancing at me, with a handgun pointed at me, and gets to the Tueller Drill distance (~7 yards), I believe that there is more than sufficient caselaw to support a reasonable belief in facing death or great bodily injury. Advancing with a firearm pointed at someone strongly suggests the intent to reduce the distance separating us, in order to improve accuracy.

Of course, everything is relative. Guys hunt brown bear here in MT with optics on their 10 mm G40s. For me, that is almost like facing an AR-15 - they can hit me much further out than I can hit them, if I am carrying a typical handgun.

[Sebastian Cremmington]

But Rittenhouse was clearly armed and shooting and by advancing you give him a better shot at yourself. I guess guns don’t scare me like they scare you??

[Toranth]

SC, let me ask a slightly different question:
Grosskreutz's companions had attacked Rittenhouse, and Rittenhouse shot one of them dead right in front of Grosskreutz, so what do you think Grosskreutz's intention when he continued to advance on Rittenhouse with a gun in hand?

[Sebastian Cremmington]

The media incorrectly (and dishonesty) characterizes the two people he killed as “protesters” when they were criminal vagrants. From my understanding the 3rd guy was a protester and apparently had a home because he has a license to carry his gun.

[Bruce Hayden]

“But Rittenhouse was clearly armed and shooting and by advancing you give him a better shot at yourself. I guess guns don’t scare me like they scare you??”

He shot the first two guys in (arguably) very clear self defense. That didn’t give the third guy license to point his gun at him. Closing the distance between the two guys appreciably improved the third guy’s chances of inflicting death or great bodily injury on Rittenhouse, but the opposite was not true, because he (Rittenhouse) had a long gun, with a much, much longer sight radius. In any case, it was the third guy advancing, coming into easy shooting range for his handgun, who was the threat.

[Toranth]

If you'd actually watched the full video, you'd know the circumstances of the third shooting, of Gaige Grosskreutz's arm.

A large group of people was chasing Rittenhouse, with some screaming "Get him" or "kill the fucker". At this time, Rittenhouse falls. One attacker jump-kicks him as he attempts to rise, and he almost drops the rifle. Another attacker hits Rittenhouse in the head/neck with a skateboard, then attempts to grab the rifle. Rittenhouse shoots, and the guy releases the gun and staggers off.

At this time, Grosskreutz is standing less than 10 feet away with a pistol in hand. Rittenhouse points the rifle at Grosskreutz, who puts up with hands and backs away. Rittenhouse turns the rifle away to another group of people advancing on him where he sits on the ground.
At this time, Grosskreutz steps forward and lowers his pistol to point at Rittenhouse again, who in turn swings the rifle back and fires one shot into the gun-holding arm of Grosskreutz.

Grosskreutz was armed with a deadly weapon, was part of a mob that had already attacked Rittenhouse twice, and although he pretended to surrender/retreat when Rittenhouse showed the ability to defend himself, as soon as he thought Rittenhouse was vulnerable again, he again advanced and prepared his lethal weapon.

There was no "accident" involved on either side. Grosskreutz threatened Rittenhouse with a deadly weapon, and Rittenhouse defended himself.

[Bruce Hayden]

Let me add that probably any handgun owner here could probably consistently hit Rittenhouse center mass at that distance (10 feet). I am fairly confident of a quarter sized group center mass at that distance, and even if stress opened it up, it could very well still be fatal. The Tueller Drill distance is about twice that distance, which is the distance at which many are taught to engage. Don’t advance on someone with a gun at that distance, if you want to continue living.

[Brett Bellmore]

I went to the range a few months ago, after a LONG break in shooting, (I'd been used to shooting in my backyard in Michigan, and when I move to an apartment in South Carolina my guns all got packed away, and so we're talking about a 12 year break. Life has been busy!)

My first shot point shooting at 10 feet would have been a likely kill, and every shot after that was near center of mass. And that was with a rental gun I was unfamiliar with! It's just not that hard to achieve deadly accuracy at only 10 feet.

Heck, my wife, who had never shot in her life, was landing shots on the torso at that range.

[Hank Ferrous]

This is your take. Mine is, for the 1st 2 people he shot, they had been living is a sphere of bias, had never learned that other people had the right to differing views, or to defend those views. They certainly don't seem to have learned that physically attacking people may have consequences; I would chalk this up to in-group entitlement, or, privilege if you like. Not privilege based on sex or ethnicity, maybe based on class, likely based on education. But, without a lot more detail, this is speculative.

[Stephen Lathrop]

David Lawson, go back far enough in English Common Law (18th century and before), and you have to take account of a problem amateur historians tend to miss. No one then thought there was anything common about it.

The laws which so often get cited in gun debates today were generally meant to protect only a tiny minority—termed English freemen—among a population which was otherwise ruled arbitrarily by local justices of the peace and the minor nobility they worked for. To a fair extent, that class distinction about who the law protected operated similarly in colonial America, particularly in the South.

Gun debates on these threads tend to bring out a lot of citations from that era which the people quoting demonstrably do not understand. More generally, historians long ago learned that it is bad practice to cite with confidence the text of laws as evidence of what the laws and customs actually were. Systematic investigation of court records yields a far more accurate picture.

[Brett Bellmore]

But what you're ignoring is the intent that everybody in America be freemen. Excepting children and slaves, yeah, but 'freemen' were not to be a tiny minority here.

[Stephen Lathrop]

Fine with me, Brett. But you can't cite antique English law to make a case for that, because the practical application of the law was against it.

[Brett Bellmore]

Why should I have to cite antique English law, when I've got an amendment to the Constitution to cite?

[Rich7553]

In essence, SCOTUS has already held the right extends outside one's home in the 2016 Caetano v. Massachusetts per curiam reversal.

[MaverickNH]

How soon does textualist/originalist debate ensue in the language of laws? At the drafting stage. When do legal challenges on the meaning of laws? As soon as formally issued. The volume and frequency of language supporting or opposing a legal interpretation will not reflect the consensus of the majority who passed that law.

A scientist myself, I propose a study - pick laws that passed by a bare majority and a supermajority and analyze the volume of defense and opposition to the laws published both before and after passage. The press has always been a political tool, with volume and frequency of press on any given topic driven by tenacity and funding. I want to see comparators to 2ndA as the Control group, evaluated aside the Test group of 2ndA language.

[perlhaqr]

Gun Control Act was 1968, actually. You were thinking of the National Firearms Act of 1934. Well, both, presumably, since they both had that effect.

[Lee Moore]

One of the problems with this corpus linguistics thing is that the sample of usage is biased towards the usage of people who :

(a) chatter on paper (or electronic dots), and
(b) chatter a lot

If you corpus linguisicated "man" and "woman" as of 2021, you'd quite possibly get a preferred corpus linguisticcy meaning of

"man" = human who believes he's a man
"woman" = human who believes she's a woman

which of course is circular, but c'est la vie. And you'd get that because most of your sample would be the media, and university geeks and other people who write a lot. Oh yeah, and tweets and facebooky stuff that are allowed by the hosts.

Whereas the vast majority of regular folk still use "man" and "woman" in their traditional biological sense, and who have to perform mental gymnastics when exposed to "cis man" and "trans woman" to try to puzzle out what sort of creatures those really are.

But regular folk don't talk as much as the NYT, and generally do so by flapping the lips, which is not recorded for posterity in a corpussy thing. Hence the corpus will record a heavily biased sample of usage.

[Stephen Lathrop]

Professor Baude, too bad no one is paying any attention to the corpus linguistics theme. I will jump in, to offer you a bit of a caution about that method.

There is a problem which is almost insuperable. It is present-minded interpretation. The corpus linguistics method is designed to deliver an impression that with careful use it can account for era-to-era changes in contemporary context. Problem is, all the results tend to come out as interpreted by present-minded people from this era.

Highly experienced professional historians—who are pickled in documents they read from particular bygone eras—make fewer of those mistakes. They tend to know when they encounter some modern interpretation which references ideas no one then could ever think. But pretty much everyone else is doomed to miss that hazard. And it is not an occasional hazard, but a pervasive one. People now think thoughts which were impossible for people then to think. They do it all the time. Almost nothing anyone thinks now would be comprehensible without lengthy explanation to someone from the founding era.

The lengthy interval between the founding era and our own was full of occurrences and changes, which formed our thinking. In our present cognition, influence from the past gets thinner and thinner the farther back you go. Only a tiny residue of modern thought is recognizably equivalent to 18th century thought. Everything else long since got modified.

We think in terms almost impossible for an 18th century person to comprehend, for want of the intervening experiences which informed us but not them. And we are mostly unmindful that we do that. So we read antique texts and comprehend the words, and then give them impossible readings forged out of modern context, but unavailable to the people who wrote the texts.

That is going to be a stubborn problem for the corpus linguistics method, unless all the interpretation is done by historical period experts. Corpus linguistics will not turn out to be a tool to let present-minded lawyers circumvent the need for expert historical evaluations of antique texts.

[DaveM]

What a gem of a comment! I especially love the simile of historians being "pickled" in documents of by-gone eras, I think that describes perfectly what happens to one's thinking when you start to read these texts comprehensively. There's a kind of preservative effect where you become acutely aware that modern interpretations of older works can sometimes be almost comically divergent because the context has changed so dramatically. Like talking to people on different planets, almost.

My favorite example of this is from economic history. I believe it was in a John Steele Gordon essay where he was trying to explain why one cannot really compare the cost of something over time if the context has changed. His example as I recall was the cost of running an overseas business. How can one compare the cost of managing an office in New York from London in 1780 vs. 1880? In 1780, it would require a sea voyage. In 1880, you could send a telegram in mere minutes. The context is so different, that even what constitutes "managing" a business was no longer the same.

However, I don't think these problems are necessarily intractable. They just need to be accounted for. And, one must be prepared to admit the case when context has changed so dramatically that we can no longer lean as heavily on an original meaning as we need to.

In the context of 2A specifically, I believe that the military industrialization of arms is one of those cases where the context has shifted well beyond original meaning. A modern military weapon that can shoot 600 rounds a minute is as different from a civilian AR-15 semi-automatic rifle as a sailboat is from a telegraph. That being the case, we're going to have to step in and define for our own time what the Second Amendment means now.

[Toranth]

While your point about context is a good one (see the series of articles here about 'common carrier' vis a vis modern information services), the problem with weapons is that they haven't changed much.

There were semiautomatic weapons back before the founding of the US. There were even some very poor attempts to make automatic weapons. There were bombs, mines, and artillery back then as well.
Things that launch projectiles and things that go boom have gotten more impressive, but there haven't been fundamental changes in what they do or how they work.

If enough people feel that circumstances have changed so that the 2nd Amendment is no longer desired by the country, then we already have a way to change that - write a new Amendment with the new rules! If there truly has been a change in the people and their desires, then there should be no problem with that, right?

[Bruce Hayden]

“That leaves premise (4) ("bear arms"). Here there seems to be abundant evidence – much more evidence than one would expect from reading the Court's opinion in Heller – that most uses of the phrase in the corpus appear in a military context.”

What everyone seems to be trying to avoid is the historical context that the nascent US had recently won their independence to a great extent a result of the unofficial town militias of the time. The war started when the British tried to sneak troops into Concord and Lexington to seize their common weapons and ammunition supplies. They were initially met by the militias from those towns, which were rapidly repulsed, but as the militias from neighboring towns, then states, arrived, the sizable British contingent was stopped, then caused to flee back towards Boston. Several of our founding fathers were involved in the pre-Revolution militias, including our first two Presidents. Indeed, the original core of Washington’s Continental Army were these local militias. These militias were not approved by their British overlords, but rather feared, for good reason, as it turns out. That is why the British marched out to seize their cannon, powder, and shot.

So, yes, I think that “bear” arms primarily has a military context, but in the context of independent companies of militia, who assembled, met, and beat back the British on April 19, 1775. The natural reading of the 2nd Amdt is that the citizenry had taken their arms, organized themselves into local militias, and as a result, gained our freedom from British rule, and that the citizenry had to have their weaponry, in case it was, again, necessary to throw off the yoke of tyranny. Nothing else makes historical sense, esp with the same founding fathers having been involved in the militia movement before the war, having led the fight after the war started, who wrote and got approved the Declaration of Independence, and then enacted our Bill of Rights.

[Sebastian Cremmington]

No, just no. You are playing fast and loose with the facts. The militias involved in Lexington and Concord were sanctioned by what the colonists saw as lawful governing bodies and they had officers trained in armies and the men in the militias were trained (well regulated). Furthermore, you seem to know that the battles involved central stores of weapons and powder but you play fast and loose with that fact by not writing it out explicitly because you understand it would undermine your argument.

Furthermore, in 1861 Jefferson Davis organized an army and didn’t depend on individuals with guns when tyranny reared its ugly gaunt horse face. The KKK did exist and that is the best example of an unorganized militia but you refuse to acknowledge that because you know the KKK created anarchy and not law and order and were a negative force in American history. Dudes with huge estates like Washington and Jefferson and Madison didn’t like anarchy…they liked law and order!!!

[Toranth]

Actually, the primary reason Pitcarn's troops marched out was that a British spy had reported that four stolen British cannons were spotted in Concord.
While the British were also going to seize or destroy any powder or weapons they found - as they'd attempted in previous expeditions over the previous two years - they were not aimed at any formal store of military arms or ammo.

Incidentally, the British never found the four cannons they were looking for. However, they considered the mission a success because they instead found three privately owned siege weapons and destroyed them.
That's right, not little cannon - 24-pound siege cannon useless on the battlefield, but specialized in knocking down fortifications... like the walls around Boston.

And I don't know why you keep claiming the KKK was a militia. It was not, and it doesn't look like any research or even anti-gun activists are willing to make that claim. Do you actually have any evidence for that, or you just trying another guilt-by-association attack?

[Sebastian Cremmington]

The KKK are unorganized militia. By not understanding the difference between the unorganized militia and the organized militia you are correctly implying that the “unorganized militia” is something made up.

And the militia had been moving their weapons and powder around because they knew the British were attempting to confiscate it. So the key facts here are: the militia was sanctioned by a lawful governing body, the militia had officers with military training, the men in the militia also received military training, and the weapons and powder belonged to the militia and the governing body and not to the individuals in the militia…that’s the ORGANIZED MILITIA!

[Toranth]

"Unorganized militia" is something defined only in law, and in the US it is currently defined as "every able-bodied man of at least 17 and under 45 years of age, not a member of the State Defense Forces, National Guard, or Naval Militia" at the Federal level.
I believe some states also define "unorganized militia", but you'd need to look up those laws yourself.
Under none of those definitions is the KKK an "unorganized militia".

As for the American Revolution bit, you're suddenly ascribing the actions of individuals to government, and ignoring the well documented records that much of the arms involved in these groups actions were private.
The stores of powder and weapons that the rebels kept using we not government owned, government controlled, or handled by the government.
Unless, of course, you define the "government" as all able-bodied men age 17 or older, in which case you've defined almost every activity (military, commercial, or private) as "government".

[Sebastian Cremmington]

Once again, by incorporating via McDonald Scalia is asserting the 2A creates a right only for citizens in federal territories and DC!!! So the federal territories were “free states”…but they weren’t actually states. I think that also means you have to support statehood for DC because the Framers believed it was a free state due to the fact the unorganized militia in DC had the RKBA??

[Toranth]

What are you talking about? No one mentioned Scalia or McDonald in this subthread.
Also, why the hell would you think "free state" (if the phrase even had a legal meaning, considering it's placement in the prefatory clause) in the 2nd restricted the right to things that called themselves "states"? Do you think Virginia, Pennsylvania, Massachusetts, and Kentucky don't have any "states rights" because they aren't "states"?

[Bruce Hayden]

Not sure of your latter point - that the British were trying to seize their central store of cannon, powder, and shot. Of course they were. But keep in mind that while a central armory might store some powder and shot for personal weapons, they were required to maintain a specified minimum load out, that included their own firearm, plus specified quantities of appropriate shot and powder for their personal rifles or muskets.

Doesn’t it sound a bit odd your suggestion that the Crown Colonies could authorize local militias, counter to the laws and regulations of the Crown itself. But, even if they could, they still were not considered legitimate, in 1775, but the equivalent of the national government at that time, the British monarchy. Maybe, at one time, te Crown or it’s colonial Governors, authorized these militias for, for example, protection from Indian raids. But by 1775, they were in almost open revolt from their legal sovereign. If these militias had been legally legitimate, their governor could have demanded that they turn over their crew served weapons and extra powder and shot, and they would have been peaceably surrendered. Instead, the British commander in the area sent out a sizable expedition of soldiers and marines to seize them by surprise, and if that failed, by force.

[Sebastian Cremmington]

Ipso facto—FREE STATE! The colonies weren’t a “free state” in 1775…except you believe the unorganized militia existed so by your “logic” they were free state!?! What the colonists believed was a lawful governing body organized the militia and the British were attempting to undermine the militia—so the colonists were fighting to become a free state using the organized militia in that fight. So the existence of an unorganized militia doesn’t mean you have a free state because the goal is law and order and a republic…not anarchy.

[Bruce Hayden]

What the Whig colonists believed was really irrelevant. The relevant legality is that MA was still legally a colony of Great Britain, and the military Governor installed by the legal authority (GB government in London) was the legal authority in determining whether or not the militias were sanctioned. They no longer were.

Under your interpretation, skin heads here in MT (they got priced out of N ID) could declare their independence, and then their otherwise unofficial militias would become officially sanctioned militias, and thus protected by the 2nd Amdt.

[Bruce Hayden]

Let me go on. Yes, the local militias were apparently authorized by the British government in defense against Indian attacks, and fought alongside the British in the French and Indian war between 1754 and 1763. This is where George Washington apparently got much of his military training. Under the laws of each New England colony, all towns were obligated to form militia companies composed of all males 16 years of age and older (there were exemptions for some categories) and to ensure that the members were properly armed. The Massachusetts militias were formally under the jurisdiction of the provincial government, but militia companies throughout New England elected their own officers. In 1774, Gen. Gage effectively dissolved the MA provincial government under the terms of the Massachusetts Government Act, becoming effectively the colonial Governor, and these existing connections were employed by the colonists under the Massachusetts Provincial Congress for the purpose of resistance to the military threat from Britain. At that point, the town militias were in open rebellion against their lawful sovereign. Which is to say that the MA Bay Colony, with powers granted it by the British monarch, formed these local militias. This authorization was revoked by Gen Gage in 1774, as the de facto Colonial Governor, the year before the British attacks on Lexington and Concord. The town militias were, then, operating ultra vires.

[Sebastian Cremmington]

Correct—the tyrant attempted to disarm the organized militia and so at that point a free state can either fight back or cower and succumb to tyranny. The American Revolution was not “revolutionary” because the British ignored the American colonies for decades and the colonies developed a republican form of government with everything that entails such as legislative bodies and organized militias. So what instigated the discontent was the British getting more involved in the colonies and then doing away with the institutions they had developed over decades. So a free state has institutions like a legislative body and an executive accountable to the people and an organized militia.

Unorganized militia has nothing to do with a free state because in the eyes of the Founders a free state consisted of representative democracy and law and order and free commerce. Once again—the KKK is the best example of the “unorganized militia” which is a dumb name for it when better names exist such as “terrorist organization”. Terrorist organizations foment anarchy which wealthy landowners such as Washington and Jefferson and Madison aren’t big fans of.

[Toranth]

You are wrong, again.
The Founders knew the 'militia' consisted of all able-bodied men, even those not formally in service. And yes, militia service was a formal duty different than army employment.
There is discussion proving this that predated the 2nd Amendment and the Constitution - and many colonial laws said the same thing. So, no, the Founders like Washington and Jefferson and Madison did not think an "unorganized militia" was anarchy or undesirable. Quite the opposite, actually.

And, again, the KKK was not an "unorganized militia".

[MaverickNH]

More interesting, is the timely LCL finding that "bear arms" relates to militia membership only, with most, if not all, other aspects of Heller ceded as lost. Points not irrevocably lost yet are a reasonable focus, of course, but deserve shrewd consideration. When is a tactical withdrawal more than an orderly retreat? When troops are abandoning arms in flight…

[Dan Schiavetta]

So now it’s “corpus linguistics”.

Why do you keep refusing to consult actual historians of the period? Well we know why not of course.

[Titus PUllo]

Funny how the Vietcong and Taliban beat a modern army/air force with attack helos, artillery, F15's, A10s, smart bombs, drones, GPS and so on...all with AK-47s...so old Corn Pop is wrong..if the Federal Govt ever decides to shut down the Bill of Rights (some could say the NSA/CIA are already doing it), M1 tanks won't matter...

[Sebastian Cremmington]

That’s anarchy…Washington and Jefferson and Madison were big landowners and didn’t want anarchy.

[DaveM]

Surely the war was lost as much because it lost the support of the US public as because of the actual fighting. History is complex.

[Brett Bellmore]

An additional problem with Heller's "in common use" test, is that it's irrationally path dependent: If a firearm is banned at it's inception, it loses, because it hasn't had a chance to be in common use.

The sort of arms that are in common use today are, in fact, a product of the Court's refusal to uphold the 2nd amendment prior to Heller, allowing violations to shape what arms were commonly owned. It's quite possible, likely even, that if the 2nd amendment had been in force all along, short barreled shotguns would be common home defense weapons, and most rifles would be select fire.

[Kazinski]

I especially liked how Judge Benitez' opinion striking down California's assault weapon ban cites Miller, that weapons suitable to the militia are protected. Calling a gun a "weapon of war" enhances it's protected status rather than distracts from it.

The AR platform is a standardized platform, most use a common cartridge, is easily repaired or refurbished, and is easy to enhance for special purposes using standardized add-ons.

Exactly what you would want for a weapon used by a militia.

[Gospace]

NY has the New York Guard and the NY Naval Militia, which are NOT federal forces and cannot be called into federal duty- except for the fact that under federal law 10 U.S. Code § 246 The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard which pretty much encompasses almost everyone in the USA at some point in their life. Then, or course, 2 classes, the organized and unorganized militia. The unorganized is still called out today by local authorities for things like search and rescue when people go missing in a wilderness area or park, for example. The searchers may not think of themselves as militia, but that's what they are.

The NT definition is pretty much the same, but from a quick search hasn't been updated to included females....

On a note- Kyle Rittenhouse was 17. Declaring a 17 year old a legal member of the state and federal militia, cannot be armed during a riot seems like an unsustainable proposition, regardless of laws saying so. Shows the weakness of the laws saying citizens under 21 can't be armed when other older laws still in effect seem to say something quite different.

IMHO, every citizen should be able to buy over the counter the standard weapon issued to infantry if they desire to do so. The government has the power to mandate such ownership- and state governments did at our founding, with various penalties (or in Justice Robert's words "taxes) if they chose not to be armed. But not the power to prohibit citizens from being equally armed as the organized militia.

[Sebastian Cremmington]

Wrong, pursuant the 2A and Militia Clauses the federal government merely regulates the minimum requirements for the state militias (in order to remedy the suboptimal situation under the AoC). The states are free to go over and above the minimum requirements and the federal government can’t take their arms like the British did in Lexington and Concord. The federal government can call forth the state militias BUT the fact the states appoint militia officers means the militias will remain loyal to their respective states.

[Sebastian Cremmington]

The purpose is for the states to have militias that can challenge the federal government if necessary—see Civil War to see it worked out exactly as the Framers thought it would with federal military officers remaining loyal to their respective states—which is why the states were given the power to appoint militia officers.

[Kazinski]

In any case Riitenhouse can only be charged with a misdemeanor for carrying a rifle at 17. The first guy he shot, a convicted felon was committing another felony by trying to take his gun.

[Sebastian Cremmington]

The pro-2A people that want the SCOTUS to take on guns outside the home are very similar to the US women’s soccer team in that they sort of beat around the bush about what they really want because what they really want is so outrageous that most Americans would laugh them out of the room if they said it out loud. Just admit you want a nuclear missile…just like the USWNT should admit they want access to the men’s World Cup $400 million pot.

[Toranth]

Who wants a nuke?
Proper storage is a bitch, it goes bad quickly, and there's almost no use for one. Even just trying to enjoy the bang is difficult to do without killing yourself.

Now, you could find some usage for nukes in commercial mining, but even there usage is limited.

But hey, that is a nice delusion you've got there. Be a shame if reality and talking to 2A activists smashed it all up.

[perlhaqr]

Hey, if they can beat the other teams, they should go for it...

[Bruce Hayden]

Plus 60 years of military veterans know it’s manual of arms. If they could disassemble and reassemble their M16 or M4 in the dark, they can probable still do it with their AR-15 with some dexterity, though probably not quite as quickly.

[Hank Ferrous]

If this were the case, then it would have been written out in the Constitution proper, not the amendments dealing with individual rights.

[Sebastian Cremmington]

The Militia Clauses are in the body of the Constitution.

[Miles Fortis]

And the 2nd amendment LIMITS the federal government, not the people, you state worshipping fool

[Miles Fortis]

Still trying to make the case that the 2nd amendment is a restriction on the people when even the BoR itself states the articles are restriction ON GOVERNMENT.

[Sebastian Cremmington]

Nope, Scalia asserts the 2A created a right to keep guns in the home for Americans that lives in DC and federal territories.