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A Response to Neal Goldfarb on the Second Amendment [Updated]
David Weisberg

This is a response to Neal Goldfarb’s post critiquing my comment on Heller and the 2nd Amendment.  Goldfarb reveals that, just a few months ago, the OED revised its definition of “arm” as a noun to include the phrase “to bear arms,” which is defined as: “(a) To serve as a soldier; to fight (for a country, cause, etc.).”  This usage, according to the OED, is observed as early as c. 1325 AD.
In my comment, I quoted from the OED (2ned.) the first definition of the transitive verb “bear” under the first main sense “to carry”.   However, the 2nd ed.—which, Goldfarb correctly notes, is roughly 140 years old—also contains, as the sixth definition of “bear,” listed under the same first main sense, the following: “To carry about with or upon one, as material equipment or ornament.  a. To carry about with one or wear, ensigns of office, weapons of offense or defense.  To bear arms against : to be engaged in hostilities with.”  Again, the OED (2nd ed.) reports that this usage is first seen in Beowulf, before 1000 AD.
Arms (including firearms) are, I think, weapons, so that sixth definition would apply to anyone carrying about a weapon as material equipment.  The rifle carried by a hunter surely is a piece of material equipment when he or she is out hunting.  In my mind, this leaves entirely open the question whether “bear arms” in the operative clause of the 2nd Amendment means “to serve as a soldier” or “to carry about with one…, [arms] as material equipment[.]”

Finally, Goldfarb explicitly refrains from responding to the second, much more general point made in my comment.  Many people (and I think Goldfarb is one) believe the correct sense of the 2nd Amend is this: “The right of the people to keep and bear Arms, for use in a State’s well regulated Militia, shall not be infringed.”  But, if that is what the framers meant, why isn’t that what they wrote?  I think that is a very fair question to ask, and it merits an answer.  After all, 5 words would have been saved.  Will corpus linguistics provide an answer?

Indeed, one might even go so far as to ask why there is a stand-alone 2nd Amendment at all.  That is, if the correct sense is as stated above, then why didn’t the framers modify the First Amendment by replacing the period with a semi-colon, and then adding: “or infringing the right of the people to keep and bear Arms, for use in a State’s well regulated Militia.”?  That would have saved 7 words, and reduced the first ten amendments to nine.  Will corpus linguistics provide any rationale for a stand-alone 2nd Amend?
In my paper on SSRN,  “A Unique, Stand-alone Second Amendment Implies that both Heller and McDonald Were Wrongly Decided”, I have offered my explanation as to why we have a stand-alone 2nd Amendment.  I would be interested in other explanations.
UPDATE [by Michael Ramsey]:  At The Faculty Lounge, Anthony Gaughan has this post: Antonin Scalia and the Meaning of “Bear Arms”, commenting on the Baron/Weisberg/Goldfarb exchange and the emerging issue of corpus linguistics and the Second Amendment.  Also this point from the comments to Professor Gaughan's post:
The analysis that the meaning of "bear arms" was typically used in a military context in 17th and 18th century texts is persuasive. However, I also find very persuasive the fact that the entirety of the post completely ignores the preceding word: keep. To go further down Neal Goldfarb's road, the issue is not what "bear arms" means in isolation, it is what the phrase "the right of the people to keep and bear arms" means. The second amendment protects two rights of the people, the right to keep arms and the right to bear arms.

The people's right to keep arms seems very much to denote an individual right to possess arms not limited to military involvement. In fact, Mr. Goldfarb not only searched the corpus for "bear arms" but also provides the corpus for "keep arms." http://languagelog.ldc.upenn.edu/nll/?p=38422 (click on the link near the end of the post). Reviewing the usage of "keep arms," it quickly becomes clear that this term was not understood only or primarily in the military context.