ICYMI: Goldfarb on A (Mostly Corpus-Based) Linguistic Reexamination of D.C. v. Heller and the Second Amendment @NealGoldfarb

ICYMI: Neal Goldfarb has published A (Mostly Corpus-Based) Linguistic Reexamination of D.C. v. Heller and the Second Amendment. Here is the abstract.

This is an in-depth linguistic analysis of the key language in the Second Amendment ("the right of the people to keep and bear Arms") that is based primarily on evidence of actual 18th-century usage. That evidence comes from two corpora that have been developed and made available by the BYU Law School as resources for researching the original meaning of the language used in the Constitution: COFEA (the Corpus of Founding Era American English) and COEME (the Corpus of Early Modern English). The corpus data provides powerful evidence that contrary to what the Supreme Court held in District of Columbia v. Heller, "bear arms" was used in the Second Amendment in its idiomatic military sense, and in fact that it was most likely understood to mean serve in the militia. Thus, the right to bear arms was most likely understood as being the right to serve in the militia. The analysis proceeds roughly as follows: "BEAR" and "ARMS": The Supreme Court’s interpretation of "bear" and "arms" in District of Columbia v. Heller was accurate as far as it went, but it is clear from evidence of historical usage that was unavailable at the time that the Court’s interpretation failed to reflect how "bear" and "arms" were actually used in the late 18th century. Although "bear" was sometimes used to mean ‘carry,’ the two words weren’t generally synonymous. The ways in which "bear" was used differed substantially from those for "carry." While "carry" was often used to denote the physical carrying of tangible objects (e.g., "carry baggage"), "bear" was seldom used that way. In fact, "carry" had by the end of the 1600s replaced "bear" as the verb generally used to convey the meaning ‘carry.’ In addition, although "arms" was often used to mean ‘weapons,’ it was also used roughly as often to convey a variety of figurative meanings relating to the military. "BEAR ARMS": The corpus data for "bear arms" was overwhelmingly dominated by uses of the phrase in its idiomatic military sense. (This is unsurprising given the conclusions, above, regarding "bear" and "arms.") The Supreme Court in Heller was therefore mistaken in declaring that the “natural meaning” of "bear arms" was essentially, ‘carry weapons in order to be prepared for confrontation.’ The phrase was ordinarily used to convey the meaning ‘serve in the military’ (specifically, ‘in the militia’) or ‘fight in a war.’ "THE RIGHT OF THE PEOPLE TO...BEAR ARMS": Consistently with how "bear arms" was ordinarily used, the right to bear arms was most likely understood as conveying its idiomatic military sense, and in particular as meaning ‘the right to serve in the militia.’ That conclusion is based to a large extent on the fact that there is reason to think that "bear arms" was understood to mean the same thing as to the right to bear arms as it meant with respect to the duty to bear arms — and the duty to bear arms was understood as a duty to serve in the militia. In addition, there is reason to believe, contrary to what the Court said in Heller, that as used in the Second Amendment, "the people" referred to those who were eligible for militia service. The interpretation described above is not ruled out by the fact that "bear arms" appears as part of the phrase "keep and bear arms." Although that interpretation requires that arms be understood as being simultaneously literal (as part of "keep arms") and figurative (as part of "bear arms") there is reason to believe that that was in fact how "keep and bear arms " was understood at the time of the Second Amendment’s framing and ratification.

Download the article from SSRN at the link.