corpus linguistics

Corpus Linguistics and the Second Amendment

Support for the right to bear arms for all purposes

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Corpus linguistics is the scholarly technique of searching historic databases to gather information on the use of important words or phrases. In the pending U.S. Supreme Court on the Second Amendment to right to bear arms, New York State Rifle & Pistol Association v. Bruen, a pair of amicus briefs purport to apply corpus linguistics to the Second Amendment. The briefs say that they prove that individuals have no right to bear arms, and that even if such a right exists, it is tiny. This post examines the claims in the briefs.

This post is co-authored by Campbell University law professor Gregory Wallace. Professor Wallace and I are two of the five co-authors of the just-published third edition of the textbook Firearms Law and the Second Amendment: Regulation, Rights, and Policy (Aspen, Wolters Kluwer). Professor Wallace wrote the textbook's section on corpus linguistics and spoke at a colloquium on the subject at the Duke Center for Firearms Law.

One of the amicus briefs is on behalf of three professors of linguistics—Dennis Baron (U. Illinois), Stefan Th. Gries (U. Cal. Santa Barbara), and Jason Merchant (U. Chicago)—and one law professor, Alison LaCroix (U. Chicago), who has written about corpus linguistics and founding era documents. It was filed by attorneys for Morrison & Foerster. The other brief is by and for Washington, D.C., attorney Neal Goldfarb. Goldfarb describes himself as "an attorney with an interest and expertise in linguistics, and in applying the insights and methodologies of linguistics to legal interpretation." His brief asks the Supreme Court to call for supplemental briefing on the corpus linguistics issues and to hold the Bruen case over to the next Term for argument on those issues. The arguments in both briefs are similar.

To be clear, we do not criticize corpus linguistics as a methodology. Volokh Conspiracy Professor Randy Barnett is, according to both the Goldfarb and Professors briefs, a pioneer in the field of corpus linguistics. But at the time, he did not identify as a corpus linguist; he just thought he was doing legal research.

Professor Barnett believes that the original meaning of the Second Amendment includes a right to bear arms for personal defense. In the New York State Rifle & Pistol Association case, he joined an amicus brief to that effect, filed by Kopel and other lawyers.

The persuasiveness of corpus linguistics claims depends on understanding words in context, considering all relevant sources, and classifying usages accurately. Some corpus linguists do so better than others.

James Madison's meanings of "bear arms"

Goldfarb accurately cites an essay by an eminent etymologist showing that by the end of the 1600s, the French import carry largely had supplanted bear as word for personally transporting an object. Philip Durkin, Borrowed Words: A History of Loanwords in English 408 (2014).

The Goldfarb and Professors briefs report the results of their searches for the phrase "bear arms." They say that most often, the phrase was used in some sort of military context.

According to the Professors, no evidence from the Founding Era shows an "individualized connotation" such as "bear a rifle," "bear a musket, "bear rifles," or "bear muskets." They overlooked an obvious example—an example from the man who wrote the Second Amendment. In 1785, James Madison, serving as a member of the Virginia House of Delegates, introduced an anti-poaching "Bill for Preservation of Deer." The bill had been drafted by a Committee of Revisors, whose members included Thomas Jefferson, George Wythe (signer of the Declaration of Independence and the Constitution; Chancellor of Virginia; distinguished law professor who taught Jefferson, John Marshall, and St. George Tucker), and Edmund Pendleton (previously Speaker of the House of Delegates and later first President of the Virginia Supreme Court of Appeals). The bill can be found in volume 2 of The Papers of Thomas Jefferson 443-44 (Julian P. Boyd ed., 1950).

While allowing unlimited hunting on one's own land, the bill established seasons for deer hunting elsewhere. Upon conviction, the poacher would have to pay a fine and to post bond for good behavior. And for the next year, he would be forbidden to carry a long gun outside his property. If he did carry a long gun off his property, the bond would be forfeit, and he would have to post a new bond:

Whosoever shall offend against this act, shall forfeit and pay, for every deer by him unlawfully killed, twenty shillings, one half thereof to the use of the commonwealth, and the other half to the informer; and moreover, shall be bound to their good behavior; and, if within twelve months after the date of the recognizance he shall bear a gun out of his inclosed ground, unless whilst performing military duty, shall be deemed a breach of the recognizance, and be good cause to bind him anew, and every such bearing of a gun shall be a breach of the new recognizance and cause to bind him again. (emphases added).

At the time, "gun" meant a long gun, as distinct from a "pistol." Noah Webster, An American Dictionary of the English Language (1828) (defining gun, and explaining, "But one species of firearms, the pistol, is never called a gun"). So the bill would not have forbidden convicted poachers to carry handguns in public.

In the poaching bill, we see how the Father of the Constitution and author of the Bill of Rights (Madison), the author of the document that created the United States (Jefferson), America's leading law professor (Wythe), and a future chief justice of Virginia (Pendleton) understood the word "bear." The word could mean to carry a gun for personal reasons, such as hunting. It could also mean to carry a gun while serving in the militia ("whilst performing military duty"). And it could encompass both meanings in the very same sentence.

No wonder Madison chose the word "bear" when he wrote the Second Amendment. It was the perfect word to express the right to arms for all personal use and for community service in the militia.

The Goldfarb and Professors briefs are based on the faulty premise that "bear" can only mean one thing at a time. Either it means personal use or it means community military use; it can't mean both at once. James Madison didn't accept the false dichotomy, and neither did the Virginia Committee of Revisors.

Counting wrong

Having created the dichotomy, the two briefs announce their quantitative results for uses of "bear arms." The military uses are the more common. The professors classify their dichotomy as "individual" versus "collective." In their system, plurals go into the "collective" category. An example from their brief is "Slaves were not permitted to bear arms." This is the sort of evidence from which they conclude that "the right to keep and bear arms" is solely a "collective" right, and not an "individual" right. In fact, collectives are not exclusively militaristic, and plurals often are used to describe two or more individuals. The quoted sentence tells us that slaves, as individuals, were forbidden to bear arms, and that slaves, as a class, were forbidden to bear arms. That sentence, like the Second Amendment, is not only about collectives or only about individuals. It is about both.

The Alleged Ambiguities

We examined the four quotes from the Professors brief that they showcased as examples of ambiguity. The Professors summarize the meaning of their four quotes:

Even examples that were "at best ambiguous" still "suggest[ ] a military or quasi-military sense of bearing arms."  Id. [Baron's Hasting Const. L.Q. article] at 512.  More importantly, these examples show  that  the  bearing  of  arms  was  subject  to  regulation, including limitations on where those arms might be carried. (second brackets added).

From the renowned philosopher Samuel Clarke's A New Description of the World (1689), the Professors brief quotes the line: "'A Peasant in this Country (unless in time of great Danger or Invasion) is not suffered to bear Arms.'[1689]." Here's the longer version of what Clarke wrote, describing conditions in Poland:

Towns are very scarce, the People dwell in Hutts of Straw and Loam, with Holes at the top of them to let in the Light, and give vent to the Smoak, living in miserable Poverty, as do (for the major part) the Peasants or inferiour People, being in a manner Slaves to the great ones, whose Tenants they are, though the Richer Sort are very Profuse and Expensive, rather Prodigal than Liberal, Impatient of Injuries, Delicious in Diet, and costly in Attire, often shaving their Heads, except one Lock, which they preserve with great care, being generally good Soldiers, and much Glory if they can kill a Turk in Battle, and bring off his Head, in Token of which, they wear Feathers in their Caps.

Theft in these Parts is very rare, especially to be committed by a Native Polander, and all Crimes are severely punished: As for the Religion they Profess, in Relation to the Government, it is that of the Romish Church, though the Reformed way of Worship is allowed and tolerated; and the King is of late Elective; the Women are tolerably Fair and well Proportioned, very Witty and Ingenious, great admirers, and observers, of their Husbands, and very neat in their Houses. A Peasant in this Country (unless in time of great Danger or Invasion) is not suffered to bear Arms; and when the Gospel is Read in the Churches, the Gentry and Nobility draw their Swords, in token that they are ready to defend it with their Lives.

Clarke, at 77.

According to Clarke, Polish peasants cannot bear arms in ordinary life. They only bear arms during wartime. The gentry and nobility, however, do carry swords, and show them off in church. Accustomed to routine arms bearing, the upper classes are good fighters. The tenant farmers live in squalor while their armed landlords are hot-tempered and spend their wealth ostentatiously. The peasants are "in a manner Slaves to the great ones."

Unambiguously, Clarke uses "bear arms" for personal carry in ordinary situations, and carry during wartime. The people who cannot ordinarily bear arms are the slaves of those who do.

In the Professors brief, the Clarke quote is said to show that "bear arms" connotes lots of government control. And so it does, in an unfree nation like Poland, where most of the people are forbidden to bear arms. The Second Amendment adopts the opposite policy for the intended opposite result: When "the people" can "bear arms," there can be "a free State."

Here is a decree from about 1330 by King Edward III, which the Professors brief labels "ambiguous":

"That no person shall use or bear any Arms within London, and the Suburbs, or in any place between the said City and Pallace of Westminster, nor in no other part of the Pallace by Land or by Water, except such of the Kings people, as he shall appoint to keep the Kings peace." [1657].

The brief's "1657" cite is misleading. The quote is from King Edward III in the third year of his reign, which began in 1327. It was reprinted in a 1657 book that collected royal historical documents. King Edward's decree clearly tells people, as individuals, not to walk around London carrying swords or other weapons.

Again, "bear arms" includes personal carrying, and carrying while in government service. That is why the king's broad language against "bear any Arms" needed to state an exception for people in government service.

In the purported dichotomy between personal self-defense and collective self-defense, the phrase "defence of his Family" would seem unambiguously about the former. But the Professors brief says that the next quote is ambiguous:

"That every Person who will go for Ireland on these Conditions, shall out of his first share of Money, buy for himself and every Relation and Servant that he carries with him (who are able to bear Arms,) a good Musket, or Case of Pistols for the defence of his Family." [1690].

This comes from Sir Richard Buckley, The Proposal For Sending Back The Nobility And Gentry Of Ireland. Buckley proposed that Irish nobility living in England should move back to Ireland. They would receive enormous financial grants from the English government, if they brought certain quantities of Irish land under cultivation. Pursuant to the rest of the sentence (not quoted in the brief), the Irish nobles moving back to Ireland had to acquire their guns in England, not in Ireland:

without the producing of which Arms in Ireland, and the making Oath that he himself bought the same in England, he shall have no Right to receive any of the said Forty Five Thousand Pounds in Ireland.

Buckley also proposed inducements for ordinary English farmers to move to Ireland. Besides a financial bonus, they would receive "a good Musket or Case [matching pair] of Pistols at Chester and Bristol."

The Buckley proposal plainly promotes the bearing of arms for personal defense. In 1689-90, the people of Ireland revolted against English control, in the Jacobite Rebellion. In Ireland, English immigrant farmers and English-allied nobles were not exactly popular, so of course they would need arms for personal defense. All their guns should come from England; the ruling country could have gun commerce, but not the colonized country.

The final example of ambiguity in the Professors brief is the 1776 Pennsylvania Constitution:

That the People have a Right to bear Arms for the Defence of themselves and the State, and as standing Armies in the Time of Peace are dangerous to Liberty, they ought not to be kept up: And that the Military should be kept under strict Subordination to, and governed by, the Civil Power." [1776].

Justice Stevens did not think the Pennsylvania Constitution was ambiguous. In his Heller dissent, he wrote that if the Second Amendment had copied the Pennsylvania text, the Second Amendment clearly would have included personal defense, as well as a militia right. 554 U.S. 570, 647 (2008) (Stevens, J., dissenting).

The four "ambiguous" quotes discussed above were the four that the Professors brief selected to showcase their methodology. None of the quotes is ambiguous. Every one recognizes individual bearing of arms, and three of the four also recognize collective bearing of arms. If all the Professors star examples are inaccurate, can one trust the accuracy of their other classifications?

The literal Second Amendment

The Neal Goldfarb brief acknowledges that Goldfarb's claims were criticized in Josh Jones, Comment, The "Weaponization" of Corpus Linguistics: Testing Heller's Linguistic Claims, 34 BYU J. Pub. L. 135, 171 (2019). However, writes Goldfarb, "when one puts aside the uses categorized by this researcher as ambiguous, one sees that he categorized only 21% of the relevant uses as unambiguously literal."

By "unambiguously literal," Goldfarb means individuals carrying weapons for personal reasons. This is contrasted with what Goldfarb calls the "idiomatic" use of "bear arms" to connote a military situation. Because military 79% is more than individual 21%, Goldfarb argues that the former is the sole meaning of "bear arms" in the Second Amendment.

On the other hand, it is usually reasonable in constitutional interpretation to read the text as including at least its literal meaning. The First Amendment guarantees "the freedom…of the press." Literally, it is the freedom to own a printing press, and a rejection of earlier English law that individuals could only own a printing press if the government granted them a license. Edward  Lee,  Guns  and  Speech  Technologies:  How  the  Right  to  Bear Arms  Affects  Copyright  Regulations  of  Speech  Technologies,  17  Wm.  &  Mary  Bill of  Rts. J. 1037, 1059–64 (2009). In addition to the literal meaning, freedom of the press includes protection of many forms of communication, not only those that involve printing. For example, the First Amendment severely limits prior restraints on the distribution of all publications, including those written by hand, even though prior restraints do not interfere with people buying and using presses. Kopel, The First Amendment Guide to the Second Amendment, 81 Tenn. L. Rev. 417 (2014)

The Fourth Amendment guarantees "The right of the people to be secure in their…houses…" Literally, the guarantee applies to houses. Additionally, the guarantee applies to places that are "houses" in a more figurative sense—such as camping tents, apartment buildings, and hotel rooms.

The unambiguously literal meaning of "the right of the people peaceably to assemble" is individuals gathering in a single location. But "assembly" also has other meanings, such as association in many locations. The millions of members of the worldwide Christian denomination known as "The Assembly of God" never all literally assemble in the same place. As members of a common faith, they are an "assembly" in a figurative sense. The U.S. Supreme Court has accurately recognized that the right of association is a necessary implication of the literal right of assembly. See NAACP v. Patterson, 357 U.S. 449, 460 (1958).

Constitutional rights language can encompass both the literal and the figurative. Scholars could search the historic databases and count how many times "press" is used literally, to refer to printing presses. Then the scholars could count how many times "press" is used figuratively, to refer to diverse forms of oral or written communication. The scholars could then announce that whichever usage comes in first is the only meaning of "press" in the First Amendment. These First Amendment scholars would be following the example set for the Second Amendment by the Goldfarb and Professors briefs.

The correct use of frequency data in corpus linguistics is different from the simplistic Professors and Goldfarb briefs. It is not just a matter of counting up uses and announcing that whatever use comes in first is the exclusive meaning. Frequency data can show the range of possible candidates for the ordinary meaning of the term, and perhaps even suggest a presumptive meaning if one sense is overwhelmingly predominant, and that sense necessarily excludes other senses. Frequency data by itself is not conclusive. Frequency data must be supplemented by relevant legal context.

Legal context

The most relevant context for the meaning of "bear arms" in the Second Amendment is contemporary state constitutions and proposals for constitutional revision. Founding Era constitutional sources used the phrase "bear arms" to describe the right to carry weapons for non-military purposes.

The Anti-Federalist dissenters report from the Pennsylvania constitutional ratifying convention in 1788 proposed an amendment to the Constitution protecting the people's "right to bear arms for the defence of themselves and their own state or the United States, or for the purpose of killing game." Three state constitutions—Pennsylvania, Vermont, Kentucky—written during the Founding period protected the people's right to "bear arms in defense of themselves and the state." Six additional state constitutions written prior to 1820 (Ohio, Indiana, Mississippi, Connecticut, Alabama, Missouri) contained protections for the right of the people to "bear arms in defense of themselves and the state" or the right of every citizen to "bear arms in defense of himself and the state." All of these plainly understood the right to bear arms to include civilian self-defense as well as to service in the militia.

Note the difference between the state constitutions and the 1788 Pennsylvania proposal. All of them list reasons for the exercise of the right. All of them name the personal reason of personal defense, and the community reason of collective military defense. Only the 1788 Pennsylvania proposal enumerates an additional personal reason, namely hunting. So it as least plausible that in the nine states, the state constitutional right to bear arms did not include hunting. Vermont and Pennsylvania had separate constitutional provisions for the right to hunt.

Suppose you wanted to write a constitution that protected the right to bear arms for all purposes: self-defense, militia service, hunting, other shooting sports, and so on? Then you would just write "bear arms," without any subsequent words of limitation. That is exactly how James Madison and the Committee used "bear" in their anti-poaching bill. Convicted poachers lost their right to bear long guns anywhere off their lands, for all purposes, including hunting, target shooting, and personal defense. The ability of the convicts to bear arms in the militia was saved only because the bill included an express exemption for military service.

When the Second Amendment was being debated in the U.S. Senate, Congress rejected a proposal to add a narrowing modifier: "for the common defence." If Congress had added the modifier, then interpretation of the Second Amendment would be more complex. Two state constitutions had similar qualifiers: Massachusetts ("for the common defence") and North Carolina ("for the defence of the state"). Later, some new states included similar language. The main line of 19th century state interpretation of such clauses recognized an individual right of all citizens to own and carry firearms. Several cases, especially in the latter 19th century, said that the right was only for militia-suitable arms—such as large handguns, rifles, swords, or cannons—and not for arms that (in the courts' understanding) would not be used in a militia—such as small handguns or Bowie knives. A minority of courts, such as Tennessee in Aymette v. State, said that the right to keep and bear arms for the common defense included everyone keeping arms, but bearing arms was only for the militia. See Kopel, What State Constitutions Teach about the Second Amendment, 29 N. Ky. L. Rev. 827 (2002); Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU Law Review 1359.

The various state constitutions show different ways to limit, or not limit, the right to bear arms. The Second Amendment, with no qualifiers, takes the broadest approach.

Neal Goldfarb states that at least 95 percent of all uses of "bear arms" between 1760 and 1799 conveyed the idiomatic sense relating serving in the military. But Goldfarb excluded from his analysis all uses of "bear arms" when the phrase appeared in the text of a proposed or ratified constitutional provision at the federal or state level protecting that right, because he believed these uses irrelevant to his analysis.

He concedes that "[w]ith respect to the Second Amendment, the most contextually similar uses of bear arms are the state constitutional provisions." But he goes on to say that "those uses can't offer us much guidance" because the term "right of the people" used in those provisions may refer to a collective right, thus "in defense of themselves" could be understood as "the right of collective self-defense through service in the militia," rather than an individual right to keep and bear arms for self-defense. However, not a single court in any state with constitutional language like "bear arms in defense of themselves and the state" interpreted the right as encompassing only militiamen.

Goldfarb's retreat into a thinly-conceived ambiguity to dismiss the Second Amendment's most precise context—use in constitutions—suggests that his research may be skewed toward a particular result.

Private war

There is a final reason we doubt the accuracy of the briefs' claims about the numbers of usages in the supposedly mutually exclusive categories of personal self-defense and collective self-defense—with the latter based on a context of war: In the usage of the time, "war" included personal self-defense.

John Locke wrote that a criminal who attempts to murder, rob, or put an individual under the criminal's "Absolute Power, does thereby put himself into a State of War with him." In response, the defender "may destroy a Man who makes War upon him…for the same Reason, that he may kill a Wolf or a Lion." John Locke, Second Treatise of Government §§16-18 (1690).

In the most influential international law treatise of all time, Hugo Grotius explained:

if a Man is assaulted in such a Manner, that his Life shall appear in inevitable Danger, he may not only make War upon, but very justly destroy the Aggressor; and from this Instance which every one must allow us, it appears that such a private War may be just and lawful.

Hugo Grotius, 2 The Rights of War and Peace 397 (Richard Tuck ed., 2005, reprint of 1737 English translation) (1625). Likewise, "What we have hitherto said, concerning the Right of defending our Persons and Estates, principally regards private Wars; but we may likewise apply it to publick Wars, with some Difference." Id. at 416 (defensive private and public war are both morally permissible; public war may be undertaken for "revenging and punishing Injuries," but private war may not).

Swiss professor Jean-Jacques Burlamaqui was the first to declare a natural right to pursue happiness. His writings much influenced the American Founders. Burlamaqui argued that personal defense is essential to preservation of peaceful society, "otherwise the human species would become the victims of robbery and licentiousness: for the right of making war is, properly speaking, the most powerful means of maintaining peace." Jean-Jacques Burlamaqui, 2 The Principles of Natural and Politic Law 224 (Thomas Nugent trans., 2d ed. 1763) (1747 & 1751) (Pt. IV, ch. 1, ¶11).

Thus, to keep and bear arms for personal defense meant being prepared for a type of "war." The Goldfarb and Professors briefs give no indication that the authors have any awareness of the fact.

Corpus linguistics can be a valuable tool for legal scholars. Future scholars intending to employ corpus linguistics can usefully study the New York State Rifle & Pistol Association amicus briefs as models of errors to avoid: ignoring usages that don't support an author's theory, failure to understand that a words can have multiple meanings at once, separating phrases from context that clearly shows their meaning, not considering the most precisely relevant context (here, the use of words in constitutions), and imposing twenty-first century usage (e.g., "war" is national defense but not personal defense) on earlier generations who used words differently from how modern Americans do.

NEXT: The Key Precedent in United States v. Texas

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  1. One would almost think that these professors' predisposition against firearms is coloring their supposedly scholarly research.

    1. Are 'shoot-em-up' advocates immune to that influence?

      If so, is that because they walk with the Lord?

      Which gun would Jesus choose for attending a Little League game?

  2. Am I the only one who remembers when Republicans (pre-Trump Republicans) excoriated Ruth Bader Ginsburg for willing to interpret the words of the Constitution according to their definitions in other countries, currently and historically? "Foreign law shouldn't have any effect on our law. Yap yap yap!"

    1. No one imagines that that applies to English Common Law, though the effects should be conditioned by insight (not, e.g., as misused in Wong Kim Ark).

    2. If you thought you had a point, you should probably think again. If you finished that thought, you will probably see why it actually supports what Kopel wrote.

  3. Once again, the article examines the meaning of several words in 2A, and omits the one which really matters, which is "being".

    The form of the Amendment is "[A] being [B], [C] must not be done." Whatever that formulation may mean, according to the grammar of "being", it does NOT mean

    "[C] must not be done, and, just as an incidental observation, not meant to have any affect on the meaning of the injunction against doing [C], we (the authors) note that [A] happens to be [B]."

    Someone needs to dig up Antonin Scalia and explain this to him.

    1. Oh dear, how embarrassing. I should have written "... not to have any effect ...", not "... affect ...". I know the difference quite well, but I initially wrote the sentence with the verb "affect" but changed the wording to include the noun, but forgot to change the word itself. Sheesh. Well, enjoy the comical error: mixing up "affect" and "effect" in a comment about grammar.

      1. What "[A] being [B], [C] must not be done." REALLY doesn't mean is "If WE decide [A] being [B] is no longer true, [C] can be done at our pleasure."

    2. "Once again, the article examines the meaning of several words in 2A, and omits the one which really matters, which is "being"."

      That's probably because that word doesn't actually occur in the 2nd amendment.

      1. Um... yes it does? It's right there after the first comma.

        I'd argue that the most important words are either "not" or "infringed", though. I mean, if it said "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" that would make the whole thing worse.

        1. I'm probably going to be saying this a lot in coming years: I'm getting on in years... How depressing.

    3. US v Miller 1939, adequately explains the purpose of the predatory clause. It refers back to the militia clause of Article 1:
      “ The Constitution, as originally adopted, granted to the Congress 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.’

      With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”

      and:

      These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

      Miller is still good law, and while dicta the explanation coupled with the holding, which while upholding the NFA, clearly recognizes an individual right:
      “ The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”

      1. Damn spell checker, that’s ‘prefatory’ not ‘predatory’.

      2. By the reasoning in Miller, private citizens *do* have a 2A right to own M-16s, since they are clearly adapted to militia purposes.

    4. Once again, your reading of this word is not rational. "You can't do this unless you decide that it's okay to do this" is not something that they would have written.

  4. This is getting ridiculous. The purpose of the Bill of Rights was to set limits on the federal government. But you’re relying on a local 1785 law about deer hunting.

    Was deer hunting a point of contention between the supporters and opponents of ratification?

    Was deer hunting one of the issues that caused those brave men to risk death by hanging by signing the Declaration of Independence? Was it mentioned in that document?

    1. Don't be determinedly dumber than you can help. The local 1785 law about deer hunting is perfectly on point as to the meaning of "bear arms" precisely because deer huniting is not a military exercise. That no one on either side of ratification imagined thart the Federal government ought to regulate hunting weaponry is neither here nor there.

      1. There are a number of rights men no longer have. For example, the right to beat his wife, or marry a 12-year-old. That a right existed in 1791 does not mean that it exists today. With the 2A, the right was basic to a system of law enforcement and military defense which no longer exists.

    2. Presumably the words you wrote in your comment are only valid in so far as their meaning can be taken from other similar comments.

      "This is getting ridiculous" for instance: can you show some other comments with that same meaning of "getting", and "ridiculous", and even "this", and of course "is" as used by Bill Clinton? After all, Bill's use of "is" was to debate what it meant, just as you seem to be debating what ordinary words mean, so perhaps you too are only using "is" to confuse the issue.

  5. The Goldfarb argument is of course pure gaslighting. It's a shame that anyone needs to debunk it rather than merely deride it, but of course we know the three (D) Justices will eagerly promote incredible nonsense if it will get the right result, and we have reason to fear that some (R) Justices will play along if a brainstorm strikes or they get out on the wrong side of bed, because they regularly do that sort of thing.

  6. I have a stylistic and formatting question, rather than one re the topic at hand. Sometimes, I see posts where there is a bit, and then you click on "see more" to expand the OP. Here, it just went on and on...it took 19 scrolls of my scroll wheel on my desktop's mouse to get to the end of the OP.

    I gather that each conspirator makes his (normally, I add "or her", but the VC doesn't have any female conspirators, right?) own decision about this. I'll just observe that for the few of us who are relatively uninterested in 2nd Amendment topics, 19 scrolls is A LOT of scrolling merely to get to the next topic. 🙂

    1. No Edit button. So, I'll add that I guess I was making a formatting-related observation, and not asking a formatting-related question.

    2. Was that a very long-winded way to suggest that most of the post should have been "before the fold", and not visible on the main page?

      I've had a similar complaint about other posts, although I haven't written it. The most recent one I recall was about a moot court, with screens and screens of photos and steps listed. All for something that is irrelevant to most readers!

      1. * "before the fold" "after the jump"

        1. Got the slash-s in the wrong place obviously. Why doesn't Reason's software have buttons for tags?

          You anyway presumably meant "below the fold", but "cont'd on p.2" is closer to the intended meaning, I think.

          Been awhile since I've seen a newspaper, except one mailed-out copy of The Epoch Times that a neighbor got.

          1. Yes, I meant below the fold, thanks. My phone keyboard is often hateful in its "corrections", and I don't think to proof-read as often as I should.

    3. I forgot to insert the break last night. I fixed it this morning.

      1. Thanks. Okay, good to know I'm not crazy. 🙂

  7. “State” and “militia” are the most important words with respect to Heller. Do a corpus linguistics search of all of the 2A scholarship before Heller and see how many times the Scalia’s definitions of the words are used. Such a head scratcher. 😉

    1. No one feels any need to jump through your hoops. Do it yourself or get over it.

      1. Imagine priding yourself on being ignorant and refusing to look things up.

        1. Imagine thinking you have a point in defending the laziness of someone who refused to make the point he wants someone to make.

          1. No, he is refusing to look things up because he fears where they might lead.

    2. Scalia obviously found himself bound by US v Miller, he followed that decision faithfully, most notably when he said weapons in “common use” were protected.

      Of course Miller was narrower decision because it dealt with the NFA which is a very narrow statute, and of course still in force, and obviously does not more than modestly infringe on a robust right to keep and bear arms.

      Corpus Linguistics is useful, but should hardly be used to overrule existing long standing precedent, which also happens to reflect common understanding of the law.

  8. There is another linguistic issue. If "Bear Arms" is a term of art meaning, say, "participate in the common defense" then how does one parse the phrase "keep and participate in the common defense"?

    Isn't that a bit like saying "fill and kick the bucket"?

  9. Kopel is a gun advocate, without scholarly qualifications to critique or explain history, or to explain the meanings of language excerpts from remote locations and bygone eras.

    Corpus linguistics is a novel, essentially unproven push-button data machine, purporting to deliver historical insight. The OP suffers one notable disability which casts doubt that any such insight has been delivered. Interpretation of corpus linguistics results needs historical context, not present-minded context. But all the corpus linguistics interpreters mentioned in the OP are uneducated in history, apparently know little or nothing about the methods of historical scholarship, and are thus present-minded by default.

    What these interpreters conclude from their corpus linguistics analyses—whether pro-gun or anti-gun—is no more reliable than if they had just made the conclusions up out of whole cloth. The corpus linguistics machine here serves the purpose of a film-flam artist's distractions. It delivers a simulacrum of historical probity to impress historically innocent judges—who might otherwise be at least alert enough to wonder whether those pleading historical evidence before them have any ability to demonstrate they know what they are talking about.

    I remain at a loss to understand why repetitive shallow dives into historical speculation are such a popular activity for gun advocates. They disdain professionally-practiced history, and routinely deride it. Yet gun advocates return again and again to a pretense of history. Why?

    Whatever the explanation, the phenomenon is commonplace, and by now cries out for judicial policy to rein it in. Kopel and other historically pretentious gun advocates come to court in a posture like that of "expert" witnesses relying on junk-science, whom the courts were eventually forced to rule out of bounds. It is past time for courts to rule likewise that potentially consequential historical evidence can only be considered from witnesses who can demonstrate qualifications to speak with authority. Historical witnesses should be qualified to prove their bona fides about the topics, places, eras, language, context, and people they discuss. They should show as well that they understand academically accepted methods of historical research and reasoning. They should be required to show that they have professional reputations for historical probity to protect.

    There are plenty of imposing academic figures out there, with expert historical qualifications, and preeminent professional reputations. Lawyers are accustomed to arguing cases by use of expert testimony. Why is this one class of cases such a glaring exception to that typical practice? Why do judges let it continue?

    1. Not sure where you get your information on Corpus Linguistics but it's incorrect. Stefan Gries is one of the major figures in the field (and author of a major textbook on the topic, which I own). Dennis Baron is, among other things, a historical linguist, and hence a 'historian' (also, irrelevantly, both are acquaintances).
      A great deal of important historical research is being done with that methodology. In fact, corpus studies are the only way you can do historical linguistics.
      That being said, I still think that Kopel's analysis is correct, that 'bear' is probably polysemous--that is, that it has multiple meanings, as do most words.

      1. Seems to me another way to look at it, is that "bearing" arms does mean to carry them, but to carry them as arms. A stevedore might be said to "carry" arms, because they're just arbitrary objects, or even a home owner who's rearranging the interior of their home, or moving, but anybody who carries them with the prospect of use as weapons is "bearing" them.

        Seen from this perspective, "bear" carries exactly the same meaning in a civilian and military context.

      2. Detroit Linguist, I was specific. I said:

        Historical witnesses should be qualified to prove their bona fides about the topics, places, eras, language, context, and people they discuss. They should show as well that they understand academically accepted methods of historical research and reasoning. They should be required to show that they have professional reputations for historical probity to protect.

        Checking the Wikipedia articles for Gries and Baron I found nothing to support a match between the qualifications I listed and the individuals you name. Perhaps I overlooked something. Can you quote me anything about these two from Wikipedia, or anywhere else, that demonstrates specific historical expertise with regard to, the range of dates and places Kopel cites in his brief?

        More generally, I mentioned the historians' problem of present-minded interpretation. Just so I will know you are not just another commenter who does not grasp principles of historical scholarship, could you say a few words to describe that problem, and how a historian might go about avoiding it? If you wish, feel free to explain also what a corpus linguistics expert does to avoid a present-minded analysis.

        1. That’s where you are way off base Lathrop, legal history uses “academically accepted methods of historical research and reasoning.” Specifically they research case law, and the legal reasoning used by justices to explain their results, they also review statutes an their legislative history.

          Does your on legal scholarship apply to science too? Scientists should consult historians to understand Newtonian Physics?

          1. Kazinski, I am no expert in the methods of legal history. If it is practiced by the methods you describe, they are utterly different than the ones used by academic historians. As they should be. They are different fields. Mastery of legal history is not even an introduction to academic history, and vice versa.

            As for science, if scientists want to understand Newtonian Physics as completely as possible, they could do worse than consult academic experts in the history of science. Which is why the best historians of science have won reputations for staggering erudition among the best scientists. It sounds like you might be surprised to learn some historians of science enjoy status as especially-helpful colleagues among practicing scientists.

            That should be obvious instead of surprising. Modern science is practiced world-wide, and has for more than two centuries been practiced collegially. The immense record that necessarily diffuse process delivers is quite often better known to historians of science than it is to the guy doing science in the trenches. A historian of science can be a particularly good person for a physicist to know when some obscure chemist publishes results in some obscure chemistry journal, including information transformative for the practice of physics.

            1. You're delusional.

              1. Nieporent, if you knew what you were talking about, I still wouldn't pay much attention to your careless opinions. Too often, when someone says something you don't like, your response seems based on little more than condescension.

                A previous time you called me out it was in response to my assertion that insects are less common today than previously. You especially didn't like that I based that assertion on personal observation, instead of scientific study. This week's New Yorker has an article by Elizabeth Kolbert which will somewhat answer your objections. You ought to take a look at it.

                I for years predicted that internet publishing would provoke demands for government intervention and censorship. Right along, you derided that. Here it is anyway, with a panoply of censorship agendas urged variously from the political right and the political left, from local governments on up to both houses of congress. Even EV, this blog's own 1A fundamentalist free speech champion has bought a ticket on the government intervention train. That turned out to be a pretty good prediction. Instead of scoffing, you ought to be asking yourself how I was able to do it.

                You seem smart enough to do better. My guess is that when you practice professionally you use better judgment. Your comments on this blog look by turns unserious, poorly judged, incautious, and only occasionally trenchant. Perhaps that is a choice you make for your online commentary only; I can't understand why anyone intelligent would choose on purpose to present himself as stupid and rude in public. You baffle me.

                1. I think he was referring to your seeming assertion that the best way to learn Newtonian physics/natural selection/whatever is by reading Principia/The Origin of Species/etc, or reading history of science books rather than just getting a modern text on physics/evolution/whatever. And that's a pretty silly notion.

                  Current affairs are still affected by the echoes of history and history obviously matters for the common law, but the movements of the planets aren't affected in the slightest by how physics reached its current state of understanding.

                2. A previous time you called me out it was in response to my assertion that insects are less common today than previously. You especially didn't like that I based that assertion on personal observation, instead of scientific study.

                  No. I didn't "especially" not like it for that reason; I mocked it precisely for that reason. What's worse, you didn't actually base it on personal observation; you based it on comparing 50 year old memories of what you saw on car windshields as a child to more recent observations.

                  Also, given that your New Yorker article is quoting old myths about bee colony collapse, I'd question why you'd rely on it.

                  I for years predicted that internet publishing would provoke demands for government intervention and censorship. Right along, you derided that.

                  I mean, why would I have derided that? There have been demands for government intervention and censorship from time immemorial. That's the entire reason the first amendment exists!

                  I may have derided your notion that the Internet was special in that regard, though.

                  I definitely derided your notion that we need to destroy the village in order to save it, though.

                  Here it is anyway, with a panoply of censorship agendas urged variously from the political right and the political left, from local governments on up to both houses of congress.

                  Again, the right is demanding the exact opposite of censorship now; they're demanding that no censorship be permitted on the Internet.

      3. Corpus linguistics is also the way modern English was standardized.

        Samuel Johnson used a primitive method of corpus linguistics to compile uses of a word and its meaning in context with the various uses.

        1. Sure, and the Oxford English Dictionary is on historical principles. That doesn't mean much with regard to history, just with regard to noting when you start finding the word.

          A note in passing. There is far too much reliance on reference to old dictionaries to tell what words meant when someone used them in some consequential historical situation. First, likely as not, the dictionary cited was published later than the occurrence being studied—decades later is commonplace. Second, even if the dictionary was published early enough, and in the locale in question, how does anyone know the dictionary was relied upon by the historical figures? If you find them saying they relied upon it, then you are good to go. Otherwise, not so much.

    2. >There are plenty of imposing academic figures out there, with expert historical qualifications, and preeminent professional reputations. Lawyers are accustomed to arguing cases by use of expert testimony. Why is this one class of cases such a glaring exception to that typical practice? Why do judges let it continue?

      the history isn't dispositive on the issue. both heller majority and heller dissent were originalist/ depended on history & corpus linguistics, both had bad and good history, both had good and bad arguments. Nobody with a brain thinks the law or the history is clear on this issue, but since corpus linguistics has come a long way since heller, the hope is scotus improves the bad history and bad arguments a bit.

      1. post hoc, why do you suppose corpus linguistics has power to improve bad history?

        1. A little ambiguity here.

          Suppose I were to make a pineapple upside down cake, and mistakenly use salt in place of sugar? That would be bad cooking, and no way in sight to improve that particular upside down cake.

          But properly labeling the salt and sugar jars would, presumably, prevent the mistake going forward, and so improve my bad cooking, even if it couldn't improve an already executed instance of it.

          Does that make sense to you?

    3. "Corpus linguistics is the scholarly technique of searching historic databases to gather information on the use of important words or phrases. "

      lathrop - it is basically a search button - kinda like google - just a better search button.

    4. To say lawyers don’t understand history is ridiculous, they are trained to study and understand legal history, that’s what a law library is, a repository of legal history. Most historians are not trained in legal history.

      1. Kazinski, exactly, about most historians. Which is why you would be hard pressed to find an academic historian who held himself out as an expert on legal history. I never saw such a thing.

        But for some reason the reverse is not true. I think I know why. Academic historians are aware that they work according to agreed-upon (or sometimes mutually disputed) professional standards. They keep standards in mind.

        I don't pretend to know what legal historians do about standards within that field. I do know a great many lawyers seem utterly unaware that standards practiced by academic historians even exist, but wade right in anyway.

        It is not at all ridiculous to say lawyers do not understand academic history. It is manifestly true that they do not. Which puts them in plentiful company. Very few people who have not got at least some graduate training in historical methods do understand academic history. The exceptions tend to be philosophers who take an interest in how knowledge gets systematized, or, conversely, who generalize and critique causes of erroneous thinking.

        An example would be Michael Oakeshott. He wrote an essay titled, "The Activity of Being an Historian," which ought to be compulsory reading for anyone who undertakes to engage professionally in historically-based critiques.

  10. That's qyite a wall of text to make a fact-free ad hominem argument angainst "pro-gun advocates". And given that it's the gun grabbers that are advocating total nonsense in this instance, not very convincing.

    Kopel's demolition of Goldfart is quite convincing. No PhD in history was required, nor is it obvious that having such a PhD was necessary.

  11. I'm not sure who this kind of hair-splitting is for.

    This is not how you do history.
    This is not how you do law in the modern era.
    The Justice's positions are already set; they need no more ideological cover.

    I guess it's just an academic fight for it's own sake.

    1. What do you take as hair-splitting? The fact that all the examples given by one side rather plainly use "bear arms" to include carrying weapons for individual purposes seems quite relevant to whether their classification of those uses as "ambiguous" is credible.

      Lying about sources is, as you point out, not how one should do history or law.

      1. Michael P, what you have done, perhaps without intending it, demonstrates a weakness of corpus linguistics. Specifically, the results you get from that method still depend for their meaning on accurate historical interpretations, made in full historical context.

        Taking your first paragraph as accurate as far as it goes, note that it tells you nothing about whether during the founding era existence of a customary or specifically protected right to use arms for individual purposes had any implications at all, one way or the other, for the meaning of the 2A. As a matter of history, that evidence simply bypasses the question: whether or not arms for self-defense were specifically protected by the 2A, instead of by other means?

        If the 2A was intended only as a right to carry arms under military discipline, during service in a militia, then existence of other rights concerning use of arms, protected in other ways—for instance in state constitutions—remain unrelated to the 2A right. However you think that analysis ought to come out, it is a historical distinction properly discerned only by reading the record, and not by use of a blunt tool such as corpus linguistics.

        Corpus linguistics is a statistical method. It could actually turn up a relevant quotation sufficient to decide the controversy (however unlikely that seems), but still be misunderstood on the basis of its statistical approach to mean the opposite of whatever the relevant quotation proved as a matter of history. One highly relevant and telling citation could be overwhelmed statistically by hundreds or thousands of irrelevancies.

        Given the likelihood that no such slam-dunk citation will be turned up, necessity to interpret corpus linguistic results according to standard historical norms becomes evident. Corpus linguistics can not properly be interpreted as a tool to let people unschooled in history substitute their historical judgments for contrary judgments from historical experts—at least not in instances where the judgments in question will contribute to determine the outcomes of consequential legal decisions.

  12. Between Professor Blackman's post on corpus linguistics, his SSRN paper on 2A discussing the application of this methodology, and now this post by David Kopel, I have drawn a couple of conclusions.

    One: The 'corpus' to analyze has to be bigger - much bigger. The premise behind this methodology is that by analyzing frequency data of word groupings, the quant data will indicate meaning(s). There is a lot of material that has yet to be digitized and searchable from that time period. That needs to happen to make this a more persuasive means of argument. But it has promise.

    Two: Ultimately, this is going to come down to 'legal context', and that is where the disagreement seems to be greatest. The academic critique of Goldfarb (i.e. Goldfarb assumes a single meaning for a word, or word group when multiple meanings would apply) that Kopel makes is a significant one. I would love to read VC Conspirator discussion of how they think legal context applies.

    I personally believe that 2A is an individual right. That is what I was taught in school in my civics classes. Why? Because the Founders insisted the people retain the right (and the means) to toss out the government if it ever became too oppressive.

  13. The First Amendment guarantees "the freedom…of the press." Literally, it is the freedom to own a printing press, and a rejection of earlier English law that individuals could only own a printing press if the government granted them a license.

    Hmm, so if we are to construe :

    Congress shall make no law ... abridging the freedom ..... of the press

    as meaning - at the very literal least - that the government may not require people to get a government license if they wish to own a printing press, then why does

    the right of the people to keep and bear Arms, shall not be infringed

    permit the government to require people to get a government license if they wish to own a firearm ?

    Or has the government been missing a trick by failing to realise that it can license printing presses without falling foul of the 1st Amendment ?

    1. "hen why does

      the right of the people to keep and bear Arms, shall not be infringed

      permit the government to require people to get a government license if they wish to own a firearm ?"

      Because the courts really, really like the 1st amendment, and really, really dislike the 2nd. You can explain most of the peculiarities of 2nd amendment jurisprudence, (Such as the Court's extreme reluctance to take 2nd amendment cases.) by judicial animus against the right.

      I don't think any of the Justices are actually enthusiastic about the 2nd amendment. They're divided between those who feel duty bound to uphold it in some form despite their discomfort, and those who don't feel such a duty.

  14. Buckley proposed that Irish nobility living in Ireland should have to move back to Ireland.

    How do they move back there if they're already there? Did he want them to move out so they could move back in?

    1. You do the Hokey Pokey and you move yourself about, that's what it's all about?

  15. Some conservatives seem determined to make gun safety the principal precipitate for enlargement of the Supreme Court, which would arrange a Court that resembles modern, educated, successful America more than it reflects the stale, ugly thinking of the Federalist Society.

    Take your best shot, clingers.

    (Does that solo sound more like Led Zeppelin than the Stones? And is that a Springsteen in the chorus? This seems a Stones tune of a different caliber.)

  16. WTF was that article?

    The founders meant you could have your own weapon for whatever reason you wished.

  17. How about the fact that in ye olde days, not many people had their thought published? Shouldn't that temper the idea that the written use of a word back then necessarily conveyed its common meaning? Maybe that's just how the word was commonly understood by the few whose words were published?

    1. Thoughts, not thought. Oops.

    2. "Shouldn't that temper the idea that the written use of a word back then necessarily conveyed its common meaning?"

      Not really. We can't go back two hundred years and examine people's spoken words. The writings they left behind are the only evidence we have of how they used any given word.

  18. Putting the purpose before the right wasn't even that uncommon at the time. Look at New Hampshire's constitution, for example.

    Free speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved.

    1. New Hampshire clearly articulated that books and literature were strictly for use in militia service.

      1. A++, would read again.

  19. There's a provision in Article I of the Constitution for issuing Letters of Marque and Reprisal, i.e. commissioning privately owned warships to capture enemy merchant shipping on the high seas. Ships armed with cannons.

    The proposition we're supposed to believe is people who lived in an era with legalized piracy, and wrote such into the highest law in the land, would blanch at the idea a yeoman farmer would keep a rifle or musket to protect his farm. Sure, that seems plausible.

  20. At the time, "gun" meant a long gun, as distinct from a "pistol." Noah Webster, An American Dictionary of the English Language (1828) (defining gun, and explaining, "But one species of firearms, the pistol, is never called a gun").

    So much for the "This is my rifle/This is my gun" distinction.

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