A (Mostly Corpus-Based) Linguistic Reexamination of D. C. V. Heller and the Second Amendment

Abstract

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