New Article in the Wake Forest Law Review: Corpus Linguistics and Heller

James Phillips and I grade the four linguistic claims made in the Heller case using corpus linguistics.

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James Phillips and I are proud to announce our new article, Corpus Linguistics and Heller. It was published today in the Wake Forest Law Review. Here is the abstract:

In District of Columbia v. Heller, the Supreme Court sharply divided over the meaning of the twenty-seven words in the Second Amendment. Justice Scalia wrote the majority opinion. He concluded that the Second Amendment "protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home." In short, an "individual" right. Justice Stevens, in his dissent, contended that the Second Amendment "is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia." That is, a "collective" right.

Justice Scalia and Justice Stevens both made linguistic claims about four elements of the Second Amendment: "right of the people," "keep and bear arms," "keep arms," and "bear arms." Both the majority and the dissent used various textualist approaches to consider these four phrases, but their toolkit in 2008 was limited. They considered only a fairly narrow range of sources to interpret the text. Today, we can do better. In this Article, we will grade the four linguistic claims made in the Heller case using corpus linguistics.

We rely on the Corpus of Founding Era American English ("COFEA"). In 2015, one of us conceptualized and oversaw the initial development of COFEA. We performed five queries with COFEA. First, we queried right of the people. Second, we queried keep and bear arms (and synonyms). Third, we queried the word right within six words of arms. Fourth, we queried the word keep, and variants of keep, within six words of arms. Fifth, we queried the word bear, and variants of bear, within six words of arms. We used multiple coders who independently coded their results using a type of double-blind methodology.

Both the majority and the dissenting opinions erred with respect to some of their linguistic claims. Justices Scalia and Stevens should have expressed far more caution when reaching their textualist conclusions based on the narrow subset of founding-era sources they reviewed. Additionally, corpus linguistic theory reveals that there are inconsistencies in both Justice Scalia's and Stevens's descriptions of the Second Amendment's original public meaning.

This article is based on preliminary research we published in the Harvard Law Review Blog and The Atlantic.

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  1. "In short, the corpus linguistics methodology, at least with respect to the Second Amendment, over-emphasizes the elite and the newsworthy, with no way to fully account for the history and tradition of the longstanding and fundamental right of self-defense."
    https://www.supremecourt.gov/DocketPDF/20/20-843/184359/20210720122449938_NRACRDF%20Amicus%20NYSRPA%20v%20Bruen.pdf

    1. This is a touching effort by academics to make interpretation more reliable and scientific. They should understand, judges will decide based on biased, feelings, capricious, fleeting moods. Sentences were shorter after lunch, so the blood sugar of the judge seems relevant. A sandwich may be more influential than anything.

  2. Query—why did the Framers draft an amendment limited to citizens in federal territories and DC?? So if one believes “militia” refers to the “unorganized militia” and “state” refers to country…then the Framers drafted an amendment that only applied to the unorganized militia outside of states. Such a head scratcher. 😉

    1. "Query—why did the Framers draft an amendment limited to citizens in federal territories and DC??"

      They didn't. There, that was easy.

      1. So how were states able to ban concealed weapons during the lifetime of the Framers?? That seems like an infringement of the RKBA to me…such a head scratcher. 😉

        1. All ten amendments of the bill of Rights has always (since Dec 1791) applied to the Federal government in all states and all of DC.

          See Baltimore v Barron

          1. Then why did the Framers include the preamble to the 2A if the BoR only applied to Congress. The preamble states that a well trained to arms unorganized militia is necessary to the security of a free country…and so the RKBA shall not be infringed. Except the states started infringing the 2A while many of the Framers were still alive…such a head scratcher. 😉

            1. 14th Amendment didn't happen until after the Civil War, so incorporation against the states could not have happened before then. As you know. What's your point?

              1. Once again—why did the Framers include the preamble??

                1. Regarding the freedom to keep and bear arms, of particular concern to the Anti-federalists was that a central government would, over time, convert and model from the corpus of the general militia (traditionally meaning all able-bodied men between the ages of roughly 16 and 60) a "select" militia (men typically between the ages of 18 and 21, say, who would receive more training and be better equipped than the rest of the people).

                  As far as the Anti-federalists were concerned, such a skilled and select militia would, for all practical purposes, be the same as the standing army that they so feared and detested. They were aware that in 1783 George Washington, and a year later Baron Von Steuben (the Prussian expatriate who had served as Washington's inspector general), had proposed a "peace establishment," which at that time would have been the equivalent of a select militia; and that Alexander Hamilton, one of the leading Federalists, had advocated a select militia in The Federalist Papers, No. 29. (It is interesting to note, however, that Hamilton's proposal assumed that the general population would be armed.)

                  But if the people were not to maintain a standing army, whence would come their defense against armed aggression? It would come, the Anti-federalists understood, through the existence in each state of a general militia, in which every able-bodied man aged 16 to 60, keeping his own arms and ammunition and trained (e.g., well regulated or disciplined) in their use, could answer the call to muster in defense of life and property.

                  https://www.madisonbrigade.com/library_bor.htm

                  1. That’s the state militia referred to in the body of the Constitution. The 2A refers to the unorganized militia and examples of the unorganized militia are the KKK and Black Panthers.

                    1. The unorganized militia is directly referenced in federal law. They refer not to the KKK and Black Panthers, but to all able-bodied males between the ages of 17 and 45, who aren't part of the National Guard.

                      "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."

                      (b)The classes of the militia are—
                      (1)the organized militia, which consists of the National Guard and the Naval Militia; and
                      (2)the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia

                    2. and examples of the unorganized militia are the KKK and Black Panthers

                      Every time I think you couldn't give us reasons to take you even less seriously...you prove me wrong.

                    3. National Guard has nothing to do with the 2A. Once again, why the preamble?? Why did states ignore the preamble during the lifetimes of the Framers??

                2. The Supreme Court addressed that exact question in US v Miller in 1939. The court explains that the Article 1 Militia Clause gives Congress the responsibility of arming and training the militia, all able bodied men. So the prefatory clause references the federal responsibility to ensure the militia is armed to justify protecting a right that otherwise might be only a state or local interest.

                  1. Article 1, section 8, clauses 15&16:

                    "[The Congress shall have Power . . . ] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

                    To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."

                    But, of course, that's the organized militia. And the right belongs to the people, not the militia. (And, not incidentally, the National Guard isn't organized under the militia clauses. PERPICH v. DEPARTMENT OF DEFENSE; The national guard is organized as a reserve branch of the Army.)

                    Indeed, do look at US v Miller: Miller and Layton were not members of the organized militia, as criminals it was questionable that they qualified as members of the unorganized militia. Were the right limited to the militia, the Court could have ruled based on that, and never gotten to the question of whether a sawn off shotgun was suitable for military use.

                    The reason the right applied to them was that they were members of the People, not the militia.

                    The idea that the right belongs only to the militia is something only gun controllers take seriously; It does after all say, "right of the People".

                    1. So what does the preamble say?? Why did the states ignore it??

            2. Sebastin -
              A) only 1A has a limitation to acts of Concress
              B) What the states did to restrict the right to keep and bears is not relevent to whether 2A was an individual right , a collective right or both rights. The Bill of Rights was only a restriction on acts of the Federal government.

              1. So…why the preamble??

                1. To protect the right of the people to form organizations for the common defence

                  The historical writings of the times discussed
                  A) the right of communities to keep arms for the common defence (the collective right)
                  b) the right of the people to keep arms for the common defence and for self protection (the dual rights)
                  c) the right of the people to keep arms for personal safety. (the individual right)

                  Item A was the most common writings of the time, followed by item B, the followed by C

                  Stevens falsely claims in his dissent that the items B & C did not exist.

                  1. Except the states started infringing the RKBA during the lifetime of the Framers.

    2. None so blind as those that refuse to see.

      "So if one believes ... “state” refers to country…"

      Funny that the "State Department" was one of the original cabinet departments, and it has nothing to do with administering the states, but is totally absorbed with managing relationships with foreign states, other countries.

      Or Dr. Johnson's dictionary: "A republick; a government not monarchical."

      1. What does the “S” in USA stand for?? Such a head scratcher. 😉

  3. This is actually interesting and balanced. Good job.

    1. No it isn’t—because the key words are actually “state” and “militia”.

      1. Meh. It’s Blackman, so it’s good for him.

  4. From the introduction to the Atlantic article: The amendment itself contains 27 words: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” This provision references both the collective right of a militia and an individual right.

    Please point to the part which mentions the individual right.

    When you venture into a controversy, it is not promising to begin by pretending the basis for the other side of the controversy is not in evidence.

    1. Yes, you are right, naturally. "We the people" and every other instance of "people" refer to the collective, and only the collective, as represented by the Almighty State. Glory be the State!

      1. Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf, — Even the magic of pretend cannot transform a manifestly plural reference into a singular one. You can go on and on with far-fetched, context-distorting explanations (I have heard them all), but that won't serve the purpose of debunking an objection to the fact that a direct quote was cited to prove something, and actually shows the opposite. In short, before you announce your conclusion, you have to do the explaining, and suffer whatever embarrassment that visibly straining to get there inflicts.

        I will help you understand why the vague arguments you so desperately want to believe can never prove decisive. All the references in the Bill of Rights to, "the people," manifestly refer to, "We the People," the collective sovereign in the name of which the constitutional decree of rights was issued. "We the People," has a meaning which is at once singular, referring to the sovereign in whose name government is decreed and constrained, and also plural, referring to all citizens in their collectivity, as the governed. That is not a simple-to-interpret construction. But where in it do you see an unambiguous reference to any individual? Only in your imagination, I think.

        Of course, with specific reference to the 2A, we could turn to the historical record. There you could search for evidence not seen in Heller, that prior to the ratification of the Bill of Rights, some among the founders advocated the 2A specifically as a guarantee of an individual right to keep arms for self-defense. You will not find it. That reference was not in Heller because it does not exist. The historical record is replete with evidence for the militia purpose. The self-defense purpose goes unmentioned. So if you want it very badly, you have to make it up.

        1. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"

          Obviously, the 4th amendment only protects groups, right?

          1. The 4A initially applied to US Marshals and US Attorneys federal courts…which entities did the 2A limit upon ratification?? The 2A clearly applied to Congress but unfortunately the unorganized militia’s RKBA could still be infringed by the state governments which meant the vast majority of Americans didn’t live in a “free state”…I guess the slaves weren’t the only people in America that had it bad?? 🙁

          2. Similarly, "the right of the people peaceably to assemble" only refers to government councils. And rights "reserved to the states respectively, or to the people" are reserved to the states, or to the federal or state governments, respectively.

            1. Michael P, I don't know where the notion came up that collective rights are assertions of rights for government. That's nuts. The whole idea of a right is that it empowers ordinary people to stay the hand of government. On that basis, collective rights protect enumerated collective activities which ordinary people practice together, such as assemblies, or newspaper publishing.

              1. The aspect pro-Heller people ignore is that the Framers feared anarchy equally to tyranny. So you want to set a system of checks and balances that prevents both anarchy and tyranny. Another thing pro-Heller people inexplicably do is ignore the Civil War in which tyranny reared its ugly gaunt horse face and the CSA organized an army which included the state militias and their stores of arms. So Jefferson Davis didn’t blow a shofar to summon men with arms out of the woodwork…because that would have been dumb. Finally ignoring the Civil War also allows one to ignore the fact many federal military officers remained loyal to their respective states which shows that having states appoint militia officers would result in the state militias always remaining loyal to the states even if called forth by the federal government.

              2. "Michael P, I don't know where the notion came up that collective rights are assertions of rights for government. That's nuts."

                It is nuts, but where the notion came up, is from the gun control debate. Where defenders of this 'collective right' notion assert that the right can only be exercised in the context of being armed in the service of the government.

                I do agree that the idea of a "right" to be armed when the government wants you to be armed IS mad.

        2. :"Of course, with specific reference to the 2A, we could turn to the historical record. There you could search for evidence not seen in Heller, that prior to the ratification of the Bill of Rights, some among the founders advocated the 2A specifically as a guarantee of an individual right to keep arms for self-defense. You will not find it. That reference was not in Heller because it does not exist. The historical record is replete with evidence for the militia purpose. The self-defense purpose goes unmentioned. So if you want it very badly, you have to make it up."

          Lantrop - You fell for the same stunt Stevens tried to pull in his Heller dissent - pretending that the historical record made no mention of the individual right.

          Scalia blew that Stevens BS away, See Scalia's citations in Heller
          Stephen Holbrook historical reseach - blews that argument away.

            1. Brett, pick out the best quote you think you can find. Make sure it is not dated post-ratification of the 2A. That would disqualify it from consideration as historical evidence of what the founders intended. They could not intend anything based on time traveling information from a future of which they had no inkling.

              Then make sure it is a quote which specifically advocates self-defense as a protection to be guaranteed by the 2A, and says that in so many words. That will at least establish relevance for discussion.

              We can then try to figure out whether your one quote from one guy actually carried the day, and overcame the otherwise commonplace intent which was explicitly expressed repeatedly on behalf of a militia purpose.

              If you can't get over that bar—an ordinary test of relevance in historical analysis—then you have nothing.

              1. So, what you're saying is, you couldn't be bothered to read it?

                "Federalists cited the existing guarantees for personal rights in the state constitutions, [94] the presence of an armed populace, [95] and the lack of a granted power in the proposed Constitution to infringe upon individual liberties [96] as precluding the need for a bill of rights. In keeping with this approach, Coxe questioned the wisdom of considering amendments before the experiment had been tried. [97]

                In 1788 Coxe served as one of Pennsylvania's last delegates to the Continental Congress, which held its final session early the following year. [98] In the meantime, the requisite nine states ratified the Constitution. [99] As a compromise with the Constitution's opponents, who agreed not to oppose the Constitution further, many federalists reversed their opposition to a bill of rights in order to entice the remaining states to ratify. On June 8, 1789, in the newly formed U.S. House of Representatives, James Madison proposed a bill of rights that included the following:

                The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person. [100]

                Coxe was in an excellent position to know what Congress was doing; he was living in New York City (where the first Congress was meeting) and was serving as an unofficial policy advisor to several leading congressmen. [101] In this capacity, he helped shape the Judiciary Act of 1789, which created the lower federal courts; legislation regarding the President's power to remove his appointees; and the patent bill. [102]

                Perhaps alerted to Madison's proposals in advance of the general public, within ten days "A Pennsylvanian" again appeared in print, this time in the Philadelphia Federal Gazette with his Remarks on the First Part of the Amendments to the Federal Constitution. [103] Probably the most comprehensive section-by-section exposition on the Bill of Rights to be published during its ratification period, Coxe's Remarks included the following:

                As civil rulers, not having their duty to the people, duly before them, may attempt to tyrannize, and as the military forces which shall be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms. [104]

                Coxe sent a copy of his essay to Madison along with a letter of the same date. [105] Madison wrote back acknowledging "Your favor of the 18th instant. The printed remarks inclosed in it are already I find in the Gazettes here New York ." [106] Madison added approvingly that ratification of the amendments "will however be greatly favored by explanatory strictures of a healing tendency, and is therefore already indebted to the co-operation of your pen." [107]

                Madison apparently saw Coxe's defense of the amendments in the New York Packet the day before he wrote to Coxe. [108] The Coxe article also was displayed prominently on the first page of the July 4th celebration issue of the Massachusetts Centinel, [109] and was no doubt reprinted elsewhere. Just as Coxe had written energetically for the proposed Constitution, he now wrote with the same vigor for the proposed Bill of Rights. [110]"

                Ratification, of course, was in December of 1791, over two years later.

                1. Brett, on what basis, other than admitting you are cheerfully making it up, do you plan to assert that quotation shows explicit protection for an individual right of self-defense in the 2A? Hint: to qualify, it has to say something about personal self-defense.

                  I can see it's a bit murky, but the ambiguity seems to be distributed between alternatives of a claim to a constitutional right of insurrection at one end, and a militia interpretation at the other.

                  For now, you aren't over the bar.

                  1. We definitely have a right to insurrection…you just have to accept the consequences if said insurrection fails.

                    1. That is exactly right, and those are the only terms on which it would make any sense to have a right to insurrection. Because no government it was proper to revolt against would respect a right of revolt, be it ever so explicitly guaranteed, it would have been fatuous to write it into the Constitution.

                      What would not be fatuous would be to guarantee a right to the means to revolt, because in practice you'd have to accumulate those prior to revolt being justified, (No government it was proper to revolt against would allow you to accumulate them!) and the very fact that the government started violating it would be a big red flag telling you that the time for revolt was approaching.

                      This last is something many advocates of gun control just don't get: The very fact that they're trying to take guns away convinces the historically minded gun owner that it is vitally important not to give them up. And when you threaten to use the military to enforce gun control, (As Biden has done.) you just seal the deal.

                  2. Take what you can from Coxe. His review of what became the second amendment shoots a gaping hole in the "idiom" argument and plainly speaks of private arms. At minimum it supports an individual right to keep arms and use them to defend against military forces that might pervert their power to injure their fellow citizens. What else it may mean for individual and/or collect defense we will have to look elsewhere, but it sure is not a limited individual right to keep and bear arms only in service of the militia, nor is it a collective right to maintain a militia.

                  3. I didn't say right to self defense; You'd get that from the Declaration of Independence and 9th amendment. Likewise, the Declaration is an adequate source of a right to insurrection in extremity.

                    But it DOES say, "their private arms", which pretty clearly demonstrates that it's an individual right.

          1. Tom, Holbrook does not do historical research. He is a gun advocate, not a historian. Likewise Scalia in Heller. Neither one of them knows the first thing about historical reasoning, or about forthright use of the historical record.

            I framed my assertion specifically. If you want to respond you have to accept the challenge. Here it is again:

            Of course, with specific reference to the 2A, we could turn to the historical record. There you could search for evidence not seen in Heller, that prior to the ratification of the Bill of Rights, some among the founders advocated the 2A specifically as a guarantee of an individual right to keep arms for self-defense.

            If you think Holbrook or Scalia pointed the way, just go to them and quote what they said. See if you can find anything that responds directly to the challenge, instead of trying to evade it. If they already found it, it should be easy for you to quote it.

    2. "Please point to the part which mentions the individual right."
      "[T]he right of the people to keep and bear Arms...."

      1. Bingo—RKBA is necessary to the security of a free country…and yet the states almost immediately started infringing the right which meant only unorganized militia in federal territories and DC lived in a free country. I wonder why the Framers didn’t take action when the RKBA was infringed?!?

        1. Why don't you start showing some references for these violations? Assertions are easy. Citations are hard.

          1. Everyone here knows the early instances of states infringing the RKBA…I’ve been here for over a decade and we’ve gone over it numerous times.

            1. Yes. You don't write a bill of rights to protect rights you expect will never be violated. You write one to protect rights you think are threatened. And bills of rights are, famously, mere parchment barriers, not stopping anything if not enforced.

              So the fact that the states, despite having their own RKBA provisions in their own constitutions, occasionally violated that right, no more establishes that the right wasn't individual, than the Alien and Sedition acts establish that the 1st amendment wasn't.

              Governments violate their constitutions occasionally, news at 11.

              1. Was there equal uproar over states infringing the RKBA?? Because in the 1990s a movement was necessary to make concealed carry legal in pro-2A states…that’s 200 years after ratification. Such a head scratcher. 😉

            2. Everyone here knows the early instances of states infringing the RKBA…I’ve been here for over a decade and we’ve gone over it numerous times.

              So you have no excuse for continuing to parrot the same bullshit that has been so repeatedly and thoroughly debunked over the course of those 10+ years.

              1. Blah blah blah

                1. I think you meant "neener, neener, neener", but traditionally you're supposed to recite it with your pinkies stuffed into your ears, to indicate that you're not listening.

    3. In the OP we're talking about comparing with other uses. Here are the uses of "the people" in the Bill of Rights. Seems like the appropriate context to start with in judging what was meant by "the people".
      Am 1
      ...the right of the people peaceably to assemble, and to petition
      Am 2
      ...the right of the people to keep and bear arms...
      Am 4
      The right of the people to be secure ...
      Am 9
      ...to deny or disparage others retained by the people.
      Am 10.
      ...are reserved to the states respectively, or to the people.

      So within the Bill of Rights alone there are 4 other references to "the people" which seem pretty clearly to refer not the any polity, but people themselves. Two of these very specifically enumerate individual rights using the phrase "the right of the people" just as the second amendment does. Perhaps in the interests of consistency does Stephen does not believe that the first and fourth amendments provide protection for individual rights.

      1. But why limit this particular right to unorganized militia in federal territories and DC??? Such a head scratcher. 😉

        1. It doesn't.

          1. So upon ratification the 2A protected the RKBA from infringement by state and municipal governments??

            1. No. Why are you seemingly unable to understand the distinction between which government the amendment applied to, and where the amendment applied?

              It protected the RKBA of all people, regardless of where in the U.S. they lived, but only from infringement by the federal government.

              1. But if the states could infringe the RKBA then the preamble was undermined because the unorganized militia in those states didn’t live in a “free state”. Such a head scratcher. 😉

                1. Most of the states had their own parallel amendments, which the federal 2nd amendment had been modeled off of.

                  1. So? You still can’t explain why the preamble is so sweeping when the 2A initially only applied to the federal government. Perhaps Scalia is wrong about what the words “state” and “militia” refer to in the 2A?? Such a head scratcher. 😉

    4. Where it says 'the right of the people...'

      Does the right of the people to peaceably assemble recognize an individual right?

      How about the right of the people to be secure in their persons an individual right?

      1. "Does the right of the people to peaceably assemble recognize an individual right?"

        How does one person peaceably assemble?

        1. How does one person assemble any way but peaceably?

          1. Disorderly conduct. Assault upon bystanders. Chaotic ambling, a la the drunkard's walk. (The mathematical concept, not the book, for those who look that up on Google's search engine.)

        2. When two individuals assemble, do they then merge and create a collective Borg and this Borg has the constitutional right?

          If this Borg stops remaining peaceful and engages in a "mostly peaceful" protest, is the Borg charged with the subsequent crimes? Or individual persons?

          1. Presumably assimilation would not be considered a peaceable assembly, and is therefore not Constitutionally protected. 😉

            Resistance is not always futile.

        3. How can you have a forest without any trees?

  5. I urge everyone to read the brief Atlantic article. It is as good an example as you could hope to find of what happens when non-historians with present-minded agendas attempt history.

    Sometimes the article sounds almost like historical analysis, but then quickly lapses into cardinal sins of historiography. For instance:

    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.

    We conducted another search in COFEA for documents that referenced arms in the context of rights. About 40 percent of the results had a militia sense, about 25 percent used an individual sense, and about 30 percent referred to both militia and individual senses. The remainder were ambiguous. With respect to rights, there was not a dominant sense for keeping and bearing arms. Here, too, an “ordinary citizen” at the time of the founding likely would have understood that the phrase arms, in the context of rights, referred to both militia-based and individual rights.

    Note the, "would have," construction in both examples. That one gets you laughed at in graduate history seminars. It tends to be the brightest field mark of present-minded, agenda-driven historical interpretation. And that is true even if the evidence cited for the, "would have," construction is apparently strong. In these instances the evidence cited is not only not strong, but actually seems to point the other way.

    (As I said, read the (short) Atlantic article for full context.)

    Also unclear, the linguistic samples cited encompass post-founding dates. There is no discussion to show what portion of the total database was from post-founding time. There is one small hint that maybe these authors had the good sense to exclude from their consideration any references later than the ratification of the Bill of Rights. If not, then they need to go back and get rid of all the time-traveling citations from the future which purportedly illuminate the meaning of a past that could not have had any inkling of what was yet to happen. If that did not happen, we have to wonder what the relative balance of citations would look like if it had.

    I will not discuss other problems inherent in the corpus linguistics method, despite the fact that the Atlantic article suggests some of them were at work in reaching these conclusions. Maybe in a later comment.

    For now, pro-gun advocates alarmed by news that this high-tech method tends to debunk Scalia's take in Heller can relax. You are entitled to dismiss the whole thing as historical crap. Just don't get too relaxed. Better history could make it look much worse for you.

    1. "We conducted another search in COFEA for documents that referenced arms in the context of rights. About 40 percent of the results had a militia sense, about 25 percent used an individual sense, and about 30 percent referred to both militia and individual senses. The remainder were ambiguous. With respect to rights, there was not a dominant sense for keeping and bearing arms. Here, too, an “ordinary citizen” at the time of the founding likely would have understood that the phrase arms, in the context of rights, referred to both militia-based and individual rights."

      Lathrop - let me know how many of those historical writings that discussed the right to keep and bear arms only when used in the militia -

      1. Lathrop – let me know how many of those historical writings that discussed the right to keep and bear arms only when used in the militia –

        Tom — All the ones which did not mention anything else. Which among the historically relevant ones, is essentially 100%.

        I sense behind your query there may be an error in historical reasoning. Most gun advocates are of course chock-a-block with historical-type information which seems to them to validate today's most expansive gun policies. Problem is, if you cite, for instance, the Pennsylvania state constitution, you are already off track. From a historical standpoint, that is irrelevant to the 2A discussion at best, and at worst tends to make a point the opposite of the one you want.

        By roaming far afield, would-be gun historians—including most of the alleged guest experts commenting on this blog, (and also Scalia, by the way)—commit the same amateur-historian reasoning error. They presume that if they prove founding-era gun uses, (and especially legally approved gun uses), other than militia uses, they have demonstrated a broad scope for the 2A. However well that has worked in the Supreme Court, as a matter of historical reasoning that is not even slightly correct.

        Thinking that way forgets completely the narrow historical point you set out to prove. The question under debate is only whether the founders intended the 2A to protect anything (or everything) in addition to militia use of arms. The question is not, "What do you find if you survey the status of arms in America at the time of the founding?"

        You cannot answer relevant 2A question by showing other documents adopted at other times and in other places protected other-than-militia uses. In fact, proving that happened, and was done explicitly, tends to raise the question why the federal constitution, if it intended the same, was not likewise explicit.

        There are plenty of good (albeit speculative) answers to that question. The most reasonable interpretation is that with other kinds of gun uses under state protection (and variously so in different states), the founders addressed themselves to a narrower question, which was the militia question.

        That left states free to continue to regulate arms according to the widely varying political agendas among them. It freed the founders from the impossible burden to reconcile all those state differences at the federal level, with a possible threat to ratification as penalty for getting it wrong.

        For instance, what hope do you suppose anyone entertained that the slave states would have ratified federally the arms provisions in the Pennsylvania constitution? How would risk of creating a controversy with abolitionists over arming slaves have gone down? But acknowledging that in the absence of apparently unavailable citations from the historical record, such questions must lead to speculative answers, perhaps it is best to narrow the question.

        Face the challenge squarely. The subject is the history of the federal convention, and of subsequent efforts to draft and ratify the 2A. Within that subject scope, and within that time interval, you are challenged to do 2 jobs of historical research:

        1. Find and evaluate historical references to a militia use of arms as the intended purpose of the 2A. There you will have no trouble. There are many.

        2. Find likewise historical references to use of arms for self-defense as an intended purpose of the 2A. Then compare what you found, and show how your historical evidence makes the case you have been trying to make.

        Just remember, the only records which count relate directly to federal regulation of the militia, and to the creation of the 2A. Also, no references to times subsequent to ratification of the Bill of Rights are admissible. Backwards time travel is not permitted in historical reasoning.

        Fairly obviously, your best hope would lie among the records of the anti-federalists, and center on advocacy for addition of the Bill of Rights. That, however, is pretty thoroughly sifted stuff. It seems unlikely you could turn up anything there which is not already well known, and already judged insufficient to make the case. Not that you won't find anti-federalists extolling the virtues of guns, and the advantages of arming citizens.

        But remember, that kind of thing is beside the point. You have to find them saying explicitly to put guns for self-defense in the federal Bill of Rights. And you have to show also that any such advocacy was not rejected in favor of a militia clause standing alone.

        Good luck. If you can do it, many will celebrate your historical breakthrough.

        1. Stephen Holbrook has several good historical books on the subject of 2A.

          Read anyone of his books with an open mind - it answers all your objections

        2. Stephen Lathrop
          October.25.2021 at 11:36 pm
          Flag Comment Mute User
          Lathrop – let me know how many of those historical writings that discussed the right to keep and bear arms only when used in the militia –

          Tom — All the ones which did not mention anything else. Which among the historically relevant ones, is essentially 100%."

          Lanthrop - it was a rhetorical question

          The answer is that there was zero historical writings that would limit the the right to keep and bear arms only to times when serving in a militia.

          The absense of any historical writings limiting the right only to times when serving in a militia destroys any claim that 2A was limited to a collective right.

        3. The question under debate is only whether the founders intended the 2A to protect anything (or everything) in addition to militia use of arms.

          Wrong. And starting from that mistaken premise, you run entirely off the rails. When the concept of originalism was first formulated, people talked about original intent. But as the idea was developed, people realized that this was the wrong way to go about it; the correct inquiry is how a particular provision was generally understood at the time. The 2A was not drafted in a vacuum; it was written against the backdrop of established firearms regulation. It same reason that interpreting "no law… abridging the freedom of speech" requires an understanding of how speech was regulated at the time, so that you can understand that the categorical language was not interpreted to ban laws against threats.

          Also, no references to times subsequent to ratification of the Bill of Rights are admissible. Backwards time travel is not permitted in historical reasoning.

          Then historians are really stupid. But I don't think they are; I think you don't understand how historyizing works. Or logic. You yourself argue that to be a historian requires that one immerse oneself in the era and understand how people thought and how people used words. Guess what? How people thought and how they used words in 2020 is evidence of how people thought and how they used words in 2019. It's not dispositive; it's possible that there was a change as the ball dropped on New Year's Eve. But it's evidence.

          1. Nieporent, historians do reason that way, and historians are not stupid. They are specialists in a kind of reasoning which is unlike every other kind of reasoning you are accustomed to. It is a kind which does not admit counter-factuals. In the activity of studying history, everything that can legitimately be considered has already happened, so a counter factual is not only pointless, but already proved false.

            Learning the discipline to stick to the constraints of a known record is for most people a novel experience, and for some becomes one of the chief benefits of practicing the activity of historical study. I don't expect you to understand that. It is always frustrating for present-minded thinkers—which is to say almost everyone but trained historians—to be told there are rules for thinking systematically about the past. And those rules exclude a great deal of the reasoning routinely applied to discussing the present, and speculating about the future.

            Present minded people tend to want a usable past, from which citations get chosen at pleasure, with an eye to coming out with a conclusion useful in some present discussion. So unstudied remarks said in 2020 about 2019 may actually be good evidence . . . about 2020 and what someone then thought about 2019—but only slight evidence about 2019. The longer the interval, the slighter the retrospective evidence.

            Many decades ago it was at least acceptable in historical study to credit post-event sources as especially good sources about their own recent pasts. They were closer in time to the events than we are. Why wouldn't they know more, and have better insights?

            It turns out that question has an answer, and when research turned it up, it discouraged that kind of historical reasoning. When things happen, then or now, they tend to leave diverse bits of recorded evidence in the records of participants and bystanders. Very little of that evidence becomes available quickly. So the guy commenting about 2019 from 2020—compared to a researcher commenting from the vantage of the much more complete record available in 2090—will likely be very poorly informed, or actually misinformed about what recently happened.

            Historians who got to collate records systematically for decades and centuries discovered that even folks esteemed as preeminent chroniclers of their times turned out to be badly informed. Even actual participants in events under study have little chance of being as well informed about what recently happened as do later scholars who can with the passage of time collate more complete records from more vantage points.

            Of course, any misinformation which follows transformative events does take on a life of its own, and becomes its own legitimate history. But that is a history dating from a later time, and should not be confused with the meaning of what happened during the earlier interval in question, which in this hypothetical is the interval actually under study. Hence the historians' prejudice against hypothesizing explanatory power from the events caused, instead of from the causative events.

            Long story short, if you are ransacking the early 19th century for historical evidence of what the 2A meant in the founding era, you are doing it wrong.

            1. The individual RKBA exists…it just has nothing to do with the 2A. So Stevens’ Heller dissent is equally as absurd as the majority because liberals tend to want to expand liberties instead of contract them. Stevens’ McDonald dissent is the best of the bunch except Stevens’ partisanship undermines his analysis at the end. But in Heller the liberals should have got ahead of the Scalia by expanding the right to privacy to include a right to self defense in the home and that way guns outside the home wouldn’t be an issue now.

            2. I did not, of course, say that historians were stupid; I said that you misunderstood what historians do.

              Very little of that evidence becomes available quickly. So the guy commenting about 2019 from 2020—compared to a researcher commenting from the vantage of the much more complete record available in 2090—will likely be very poorly informed, or actually misinformed about what recently happened.

              You as always miss the point. I wasn't talking about people in 2020 discussing historical facts about what happened in 2019. I was talking about how people in 2020 used words and ideas that were also used in 2019.

              (Although it's obviously a curve rather than a linear relationship; it's not the case that the farther in the future one goes from a historical event the more "complete records" one has. At least historically, at some point information starts to disappear. Records get lost or destroyed. Perhaps in the digital era that will no longer be true.)

    2. All those words, and you didn't explain a thing.

  6. I got about 1/3 of the way through the article and quit for the same reason I always do. English is a context based language. It does not do to tell me how people generally use words. Many words's meaning is derived from their context. There are a whole lot of words that can even mean their opposite depending on the context (https://www.dailywritingtips.com/75-contronyms-words-with-contradictory-meanings/).

    There is no single definition of many words. "Bear arms" can mean a number of things, depending on context. Corpus linguistics cannot answer the question definitively, only give a range of plausible meanings. Corpus linguistics seems like a lot of academic intellectual masturbation to me. Messy and doesnt produce anything. Except its not even fun to watch.

  7. RE: "Justice Scalia and Justice Stevens both made linguistic claims about four elements of the Second Amendment: "right of the people," "keep and bear arms," "keep arms," and "bear arms.""

    Why no linguistic claims about "being"? To me the meaning of "being" seems more important than any other word in the Amendment, so I'll make a linguistic claim about it which may illustrate what I mean. Here goes:

    Consider the following imperative sentence:

    C1: The weather being nasty, you must not leave the house without your umbrella.

    That does not mean

    C2: You must not leave the house without your umbrella, and by the way, just as a non-prescriptive side comment, not in any way meant to affect the content of the command or instruction I'm giving you, I note that the weather is nasty.

    C1 also does not mean

    C3: The weather is always nasty and always will be nasty, so, for that reason, you must never leave the house without your umbrella.

    It (C1) means something more like:

    C4: The weather is nasty now, so you must not leave the house without your umbrella, unless and until circumstances change and the weather isn't nasty any more.

    Or, it could mean the following interpretation, which reads "being" according to a construction which we don't often use today, but which was very common in the 1790s and early 1800s:

    C5: Whenever the weather is nasty, you must not leave the house without your umbrella. When the weather is not nasty, you may leave the house without your umbrella if you wish, or not; that's up to you.

    To me it seems very obvious that in Heller, Scalia's interpretation of "being" in the Second Amendment was most like the error in C2, or C3. His reading seems to violate the meaning and grammar of the word "being", as it is today and as it was in the 1790s or early 1800s. (Also, the idea that the first clause could be meant only as an explanation or comment, devoid of prescriptive content, seems preposterous. There's no other non-prescriptive writing in the Bill of Rights, except for the Preamble. Except for the Preamble, is there any purely descriptive writing in the entire Constitution?)

    This doesn't mean that the Second Amendment should only guarantee the right to keep and bear arms for members of a state militia, which is what some anti-gun folks say. The first clause "A well-regulated militia being necessary to the security of a free state" doesn't (IMHO) say WHO gets the guarantee of the right described the second clause (to keep and bear arms); it (the first clause) says WHEN that right applies, to anyone at all. That means the most correct ordinary-speech rephrasing would be "When [or so long as] a well-regulated militia is necessary to the security of a free state, the government may not infringe the people's right to keep and bear arms; however, if/when the well-regulated militia stops being necessary to the security of a free state, then the government may infringe the people's right to keep and bear arms as much, or as little, as it wants."

    1. Or, it could actually mean C3 and the rest of your argument is wrong. You picked an example that seems silly because it's generally understood that weather routinely changes from day to day, so we would not expect someone to make a statement about what the weather always is. If you picked a different example that stated something generally understood to be a universal truth, then C3 would seem entirely reasonable.

      1. What is a "well regulated militia" in the modern United States and how is it relevant, let alone necessary, to the "security of a free state"?

        To me, the militia, as the Founders understood it, simply isn't something that exists anymore and the whole concept isn't relevant to securing our rights and freedoms any longer. That is why I think Scalia went so far to basically ignore the whole militia part of the 2A as "preamble" that didn't have any effect. Because if you acknowledge this fact about the militia, then the whole justification for the 2A, as stated in its own text, evaporates.

        1. Justifications for provisions of the Constitution can evaporate, in your opinion, or anybody else's, and that doesn't actually repeal them.

          1. So you agree with Scalia and the Heller majority then? The militia part of the 2A should just be ignored and the remaining statement that "the right of the people to keep and bear arms shall not be infringed" should be interpreted entirely without any regard to whether the militia has anything to do with it? As Intelligent Mr Toad asks, where else in the Constitution is something written just to be ignored like that?

            1. But remember Scalia didn’t ignore the preamble. Instead Scalia employed liberal constructionism to make the preamble so broad that it ends up meaningless…except by doing that he ended up undermining the rest of his analysis because to believe Scalia’s interpretation of the preamble one would have to believe that only Americans living in federal territories and DC truly lived in a “free state”…because the states quickly started infringing the RKBA and so the unorganized militia was not properly armed in the states and thus a component necessary to the security of a free state was quickly undermined. Although to correct that Scalia could have said the 2A didn’t have to be incorporated and that it was a mistake from the beginning to believe it didn’t apply to the states.

            2. Scalia did not argue that it should be "ignored." He simply said that, grammatically, it does not serve to circumscribe the scope of the right in question, which is in the operative clause.

              Article I, Section 8, Paragraph 8 doesn't use the exact same construction as the 2A, but it also contains a prefatory purpose.

              1. Except the preamble clearly “circumscribes” the scope—logically to the entire country of America…what really circumscribes the 2A is the fact the BoR only applied to the federal government initially. So how do you square the circle of the sweeping preamble with the limited nature of the BoR?? Such a head scratcher. 😉

                1. There's nothing to square. There's no contradiction. If you find yourself scratching your head, maybe it's because you're not very bright?

                  1. Sure…the Framers crafted the 2A to protect the unorganized militia in federal territories and DC. Such a head scratcher. 😉

              2. Scalia did not argue that it should be “ignored.” He simply said that, grammatically, it does not serve to circumscribe the scope of the right in question, which is in the operative clause.

                Ah, I see. He didn't ignore it, he just said it shouldn't have any effect on anything.

                1. Of course it has a meaning, and the Miller Court correctly identified that meaning: Not that only the militia had the right, but rather, that it was a right to militarily useful arms, such as a militia would need.

                  Scalia found it uncongenial to acknowledge that part of Miller, though, because he didn't want to protect the full 2nd amendment, just a neutered version, a right to own guns people like Scalia wouldn't be scared by you owning.

                  That's why I say that, while Stevens was practicing fake originalism in his dissent, Scalia wasn't actually much better in drafting the opinion. Neither of them particularly liked the 2nd amendment the founders had given us, they just disagreed about how much of it to destroy.

                  1. Of course it has a meaning, and the Miller Court correctly identified that meaning: Not that only the militia had the right, but rather, that it was a right to militarily useful arms, such as a militia would need.

                    There was little significant difference to what arms would be "militarily useful" and anything else a civilian might want for hunting or personal protection at the time of the Founding. That is hardly the case now, and it wasn't at the time of Miller, either, for that matter. Besides, if keeping and bearing arms that are "militarily useful" because that is what members of a militia would need, wouldn't the existence of such a militia be a prerequisite for a 2A right?

        2. To me, the militia, as the Founders understood it, simply isn’t something that exists anymore and the whole concept isn’t relevant to securing our rights and freedoms any longer. That is why I think Scalia went so far to basically ignore the whole militia part of the 2A as “preamble” that didn’t have any effect. Because if you acknowledge this fact about the militia, then the whole justification for the 2A, as stated in its own text, evaporates.

          While one might argue that the reason the founders felt the need to explicitly enumerate a protection of the right has evaporated over time is in no way a valid argument that the right itself has also evaporated. Recall the debate over whether or not a BoR was necessary, or even a good idea, when it came to rights that were already understood to be possessed by "the people" simply by virtue of them being "the people". The BoR created explicit legal protections for those rights, it did not create the foundation for recognition of the existence of those rights.

  8. People coded the search parameters. As such, bias is inevitable. Also, it is difficult to draw any conclusions without a clear understanding of what the subject was of these underlying "documents".

  9. I am putting this out here, not as a lawyer, but as someone who has read a fair amount of American history. As I understand it, the first 10 amendments were insisted upon because many contemporaries believed the Constitution, as written, gave too much power to the federal government. And one of these concerns related to military power. Could the federal government claim exclusive right to organize and maintain an army? That is something Alexander Hamilton could have liked. So guaranteeing the right of States to organize and maintain militias was both a practical necessity for a country as large and as sparkly populated as 18th Century America and as confirmation of a right States had before the adoption of the Constitution. With regard to the keeping of arms by private citizens, 18th Century militias were organized under the assumption that members of the militia would show up for drill with an appropriate firearm and with the knowledge of how to use it. As for an individual right to keep firearms for personal protection or for obtaining food, I suspect it was assumed to be a given that did not need constitutional protection any more that the right to keep and bear axes.

    1. Why not then state: “the power of the states to keep and arm militias shall not be infringed”?

      1. Of course the 2nd Amendment could also have been worded "The right of the people to keep and bear Arms shall not be infringed," without all the militia rigamarole.

        1. Gun-freaks (oops I mean, of course, my friends who support a very permissive reading of the Second Amendment) often tell me "The second clause says what it demands ("the right of the people to keep and bear arms shall not be infringed") and the first clause says why." But where else in the Bill of Rights, except for the Preamble to the Bill of Rights, is there any non-prescriptive content to say "why"? The Third Amendment doesn't say why the author(s) want to disallow the Federal government from forcing citizens to quarter troops in peacetime in a way other than as prescribed by Congress. The Eight Amendment doesn't say why we're not allowed to impose cruel and unusual punishment.

          As far as I know, the same is true of the Constitution itself. Where, other than in the Preamble, does the Constitution include any text which has no prescriptive meaning and only explains why some of the prescriptive content is included? If I'm right and there is none, why would the Second Amendment, uniquely, contain some?

          1. The entire Ninth Amendment has been treated as superfluous. Why worry about a prefatory clause elsewhere?

          2. Speaking of justification clauses:

            In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . .

            New Hampshire Const. pt. I, art. XVII (1784). Source: The Commonplace Second Amendment http://www2.law.ucla.edu/volokh/common.htm

            Question: In New Hampshire, can a crime be tried in a county other than which it was committed? Even when it might actually move the trial closer to the scene of the crime, depending on the location of the county courthouse?

            And if not, how does this illuminate the justification clause of the Second Amendment?

          3. You might want to read Prof. Volokh's "Commonplace Second Amendment" article. He addresses the issue of the phrasing of the 2A, and shows that such phrasing was, well, commonplace.

          4. But where else in the Bill of Rights, except for the Preamble to the Bill of Rights, is there any non-prescriptive content to say “why”?

            Where is in the BoR is there a use of "the people" to refer to a right not possessed by individuals?

            1. "Where else", not "Where is".

  10. I read the paper...interesting read. It was a good read to understand the methodology, and the discussions of prior analyses (and their flaws). That I appreciated as a layperson. I appreciated somewhat less the assignment of letter grades to various parts of the Heller opinions (e.g. Justices Stevens & Scalia).

    I hope that Professor Blackman makes his database public so that it is available for public scrutiny. Goldfarb did, and Professor Blackman positively discusses his findings at some length. Professor Blackman made a point of praising Goldfarb for posting his data. Will Professor Blackman post his (raw) data for scrutiny?

    To me, the biggest issue is that a significantly larger corpus is needed. You need much bigger 'instance' numbers. I'd wager there is a huge amount of writing and documents like newspapers or legal proceedings from that time period not yet digitized.

  11. Novice in this area - a mere flintlock bore among the rhetorical assault rifles, but: it strikes me that "keep and bear" might also mirror the two conditions in the English Bill of Rights, which constrained the liberty according to station in life (cf. "bear") and the limitations of parliamentary law (cf. "keep"). Also, since it could always be altered of abridged by statute (Northampton, etc.), it's not really a "right" in the enumerated sense. More of an assertion that the people were to govern its limitations, as opposed to the fellow wearing the hat with all of the shiny rocks in it.

    Mr. D.

  12. What is a collective right exactly? Can anyone name a collective right that is somehow held by a group but not its individual members?

    1. Three come to mind pretty easily. But all have purely individual corollary expressions.

      1. The right of petition was written while memories of British contempt for petitions from colonial legislatures were still fresh. Franklin remarked that the British rejection of those collective petitions—which Franklin was personally charged to deliver—was the most important among the various causes of the revolution.

      Knowing that does not mean an individual right of petition does not exist alongside it. It does show that claims seem implausible that no collective rights were intended.

      2. Press freedom, interpreted as a right to publish, tends strongly toward being a collective power. The practicalities of publishing, even in the colonial era, tended to require collective address. Absent protection as a collective right, that dependency on collective action could have become a point of attack to severely limit or destroy press freedom. The colonial free press would have been rendered a nullity by limiting it to individual action.

      Saying that does not mean that Franklin's cooperative and collaborative activities to organize newspapers in various places were all that press freedom protected. It does mean that activity of that sort cannot be protected as a purely individual right. And of course a purely individual right to practice publishing otherwise—typically by accessing resources made available by prior collective activity by established publishers—is also protected.

      3. The right to peaceably assemble would obviously be pretty meaningless if it did not protect a collective right. At a minimum, individual ambitions toward assembly cannot find agency without a protected collective right to agree on times and places of assembly.

      I don't doubt there are purely collective aspects to other rights as well, probably shadowed in each case by an analogous but differently-empowered individual right.

      As a general thing, I suggest consideration of collective vs. individual rights ought to take notice of differences in kinds of activities which collectives can perform jointly, vs. kind of activities which individuals can perform on their own. For any right encompassing both kinds of activities, full protection of the right must bar government interference with classes of activities viewed separately. It will not do to say only individual rights exist, therefore any activity which requires collective action cannot be protected as a right.

      1. None of your examples are persuasive. What is a petition if not signed by individual persons? And the right to peaceably assemble is a right of individual persons to gather together, not some amorphous collective person.

        1. KevinP, why do you care whether collective rights exist or not as a thing in American constitutionalism?

          And by the way, your argument seems to be skating toward a conclusion that collective rights are an impossibility, because individual persons are always around.

          1. Yes, exactly, every "collective right" I find would collapse if the individuals involved did not also have the right.

            You seem to be saying that the "freedom of the press" applies to only large institutions with numbers of people, and it doesn't apply to the lone journalist.

            1. Collapsing the right is the actual purpose of declaring it "collective", in practice.

            2. No, I specifically did not say that. I said this, "And of course a purely individual right to practice publishing otherwise—typically by accessing resources made available by prior collective activity by established publishers—is also protected."

              I'm a great respecter of the lone journalist, by the way.

        2. KevinP, how is it a petition from the people of the colony of South Carolina if it is nothing but a few signatures speaking individually?

          1. If one interprets the word "people" as a collective, how is it a petition from the people of the colony of South Carolina unless 100% of the people of South Carolina sign it?

          2. KevinP, how is it a petition from the people of the colony of South Carolina if it is nothing but a few signatures speaking individually?

            I would be surprised if something that ridiculous had come from almost anyone else.

      2. But, in modern parlance, that's not what a "collective" right is supposed to mean. It means a "right" that has to be exercised through the government. NOT a right which, as a practical matter, requires more than one person acting together to effectuate, like the right of assembly.

        Otherwise the whole point of asserting that the 2nd amendment guarantees a 'collective' right could be defeated by simply forming gun clubs, and calling them "militia". In fact, the militia movement was a response to your 'collective' right argument!

        1. Perhaps Stephen Lathrop will clarify that he sees the Second Amendment as only protecting a right to create private militias.

          That would be a rather novel position, but at least it would be consistent with what he claims.

          1. The 2A is a federalism provision crafted to prevent another Lexington and Concord. Properly interpreted the states have to meet the minimum standards the federal government sets for militias but a state is free to go over the minimum requirements. So the federal government can’t disarm the state militias AND the states appoint officers which means the state militias will always remain loyal to the states even when called forth by the federal government. It’s actually pretty simple and logical as long as one rejects the right wing appeal to authority to get a RKBA while staying true to their judicial philosophy—don’t fall victim to their razzle dazzle.

      3. Mr. Lathrop asserts that the right to petition is a collective, not individual right.

        I disagree. I frequently petition the government as an individual. I call it 'writing my congresscritter'. I strongly disagree that the notion that the 1A offers no barrier to the government criminalizing individuals doing so.

        1. Mr. Lathrop asserts that the right to petition is a collective, not individual right.

          Show where I said that. If I did say it, I must have been drunk and now deny it. But actually, I didn't say it.

          May argument here on this thread has been that some rights rights are protected variously, with a set of protections for the activities which individuals can do on their own, and another set of protections for activities which typically require group collaboration.

          I also do not say there can be no overlap among the various protections, or that individuals cannot avail themselves of the collective protections if the individuals can manage to perform the collective activities by themselves.

          I do say you could not adequately implement some rights, like assembly or press freedom, without constitutional protection for group activities which are never, or almost never, undertaken by individuals on their own. Dogmatic assertions that all rights must be individual would narrow liberty, not expand it or defend it.

          1. Indeed, my apologies. You did say "Knowing that does not mean an individual right of petition does not exist alongside it.". My bad.

            So the First amendment is like the Second, securing a right that may be exercised by individuals, alone or in concert.

    2. RE: "Can anyone name a collective right that is somehow held by a group but not its individual members?"

      How about the right to form a union and engage in collective bargaining?

      1. Well, that's just freedom of assembly, until you reach the statutory obligation of the employer to not ignore the union and fire everybody who fails to show up for work when it calls a strike.

        Unions are an existing right, freedom of assembly. Unions people can't ignore are a statutory privilege extended to people at the expense of other people's rights.

      2. Collective bargaining is not a constitutional right. Union members, as individuals certainly have a personal right to assemble together and bargain with their employer.

  13. Originalism is to the academic study of history as the TV show "Barney" was to popular music.

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