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09/07/2019

A Reply to David Weisberg on Second Amendment Originalism
Neal Goldfarb

I thank David Weisberg for his comments two weeks ago on my amicus brief in New York State Rifle & Pistol Assn. v. City of New York. I’d like to take this opportunity to respond to what he says about my brief and the analysis that it’s based on. My response will deal with only a small part of Mr. Weisberg’s comments, because while his post was prompted by my brief, for the most part it discusses issues that are only tangentially related to what I’ve written.

Mr. Weisberg sums up my interpretation of the Second Amendment’s main clause as being something like, “The right of the people to serve in the well regulated Militia of a State, shall not be infringed.” I’ll accept that for now, although I haven’t said anything about the meaning of well regulated or militia. But those issues aren’t what I want to talk about here.

Mr. Weisberg asks, rhetorically, “If that is what the framers meant, why isn’t that what they wrote?” My answer is that that is what they wrote (although the “well regulated” part wasn’t stated explicitly in the main clause) but they wrote it using a phrase (bear arms) that is no longer understood to mean what it was understood to mean in the 18th century.

From the vantage point of 2019, it seems natural to assume that the basic meaning of bear arms was ‘carry weapons’ and that the idiomatic military sense of the phrase was a figurative extension of that literal meaning. That’s certainly what I thought before I started looking at the corpus data. But the corpus data and other evidence provides powerful reasons to think that that assumption is unfounded. I discussed some of those reasons in my brief:

bear.  The data shows that although bear was some­­times used to mean ‘car­ry,’ it was not generally syn­­on­y­mous with carry, and the ways that it was used—i.e., the meanings that it was used to convey—were quite different from carry’s. While carry was often used to denote the physical carrying of tangible objects (e.g., carry provisionscarry goodscarry baggagecarry sup­plies), bear was seldom used that way.

In fact, in a book published in 2014, six years after Heller was decided, the chief etymologist for the OED reported on a study in which, among other things, he tried to determine when carry took over from bear as the verb generally used to mean­ ‘carry.’ He concluded that “in the ancestor of modern standard En­g­lish,” it was “very likely that carry was the basic word in this meaning by the seventeenth century (at least).” Thus, the transition from bear to carry ap­pears have been complete long before the Second Amend­ment was proposed and ratified. That fact alone casts serious doubt on Heller’s conclusion that the “natural meaning” of bear arms was essentially a var­iation on ‘carry weapons.’

arms.   The definitions for arms did not present the same problem of changed meanings as did those for bear, but they didn’t adequately reflect the range of the word’s usage and they gave no indication of the relative frequency with which varying uses occurred.

Samuel Johnson’s dictionary listed four potentially relevant senses for arms (of which Heller discussed only the first)….

But Johnson included no idiomatic phrases using arms, despite the fact that there existed many phrases in which arms was used figuratively, in a variety of military-related meanings. Sixty such phrases can be found in the corpus data….

Moreover, idiomatic uses such as these accounted for about 54% of the corpus data, overall.…

This information enables one to view bear arms in a new light, especially when considered together with the fact that bear was not ordinarily used to mean ‘carry.’ What it suggests is that even before looking at the corpus data for bear arms, there is reason to think that the phrase was ordinarily used in an idiomatic rather than literal sense; after all, bear didn’t generally mean ‘carry’ and arms was very often used figuratively rather than literally. But the Court’s starting point in Heller was the complete opposite of that.

bear arms.   The corpus data on bear arms was fully con­sis­tent with what one would expect from Amicus’s find­ings as to bear and keep….[Out of 531 concordance lines,] Amicus categorized 503 lines (almost 95% of the total) as conveying the idio­matic military sense. Amicus categorized only 11 lines (2%) as unambiguously using bear arms to mean ‘carry weapons,’ and only seven of those as arguably using the phrase to convey what Heller said was its “nat­u­ral meaning”: essentially, ‘carry weapons in order to be pre­pared for confrontation.’ Going by Amicus’s categori­zation, therefore, only 1.3% of the con­cordance lines can reasonably be thought of as supporting the Heller inter­pretation.

Although my brief didn’t address the question of why the idiomatic sense of bear arms survived the general replacement of bear by carry, I discussed the issue in one of my blog posts on bear arms:

There is reason to think that the figurative uses of arms can be traced back to before the word became part of the English language. Arms came into English via Anglo-Norman (the version of Old French spoken in England after the Norman Invasion), and some of the figurative uses can be traced back to Anglo-Norman. One of those figurative uses was the porter armes (meaning ‘serve as a soldier, fight for a country or a cause’ (OED); literally, ‘carry weapons’),  which was the predecessor of bear arms in its military sense. And the use of bear arms in that sense in English has been traced back to the beginning of the 14th century—almost as far back as the use of arms in any sense.

What all of this suggests is that the military sense of bear arms didn’t necessarily develop out of the literal use of bear arms in English. Rather, it was most likely absorbed into English as a full-blown idiom (with porter translated into bear) at roughly the same time as the literal use of arms. That conclusion is supported by the OED, which includes this etymological note in its entry for bear arms: “After Anglo-Norman and Old French, Middle French porter armes (c1100 in this sense; French porter armes).”

As the corpus data shows, bear arms was also used in the sense of ‘carry weapons,’ but the corpus data suggests that as the literal use of bear came to be replaced by the use of carry, the literal use of bear arms declined and was largely  replaced by carry arms. As discussed earlier in this post (and as I’ll discuss further in the next post), the data for bear arms includes only a handful instances in which bear arms was used literally. In contrast, in the data for carry arms, more than half the uses are literal. And as is discussed in my post on bear, the pattern of usage of bear was by the second half of the 18th century quite different from the pattern for carry.

All of this is consistent with—and may well help to explain—the fact that the corpus data for bear arms is dominated by uses conveying the phrase’s idiomatic military meaning. … It seems reasonable to think that the persistence of bear in bear arms is attributable to the fact that the phrase was an idiom and therefore that its meaning was, by convention, associated with the phrase as a whole, rather than being derived compositionally from the separate meanings of bear and arms. Presumably the association of the phrase with the idiomatic meaning was stronger than the association of bear with the meaning ‘carry,’ which would have weakened over time as carry pushed bear out of the niche it had previously occupied. If, as seems likely, bear arms occupied a separate niche of its own, it would have been more or less unaffected by the competition between carry and bear—which was largely, but not completely, won by carry.

Historians who are critical of Heller often accuse the Justice Scalia and gun-rights advocates of “presentism”—of looking at historical events from a present-day perspective, without taking enough account of the social and political context in which events occurred. Whether or not that accusation is justified, it seems to me from what I’ve seen that almost everyone who has written about the Second Amendment has been guilty of linguistic presentism.

That’s presumably what led Mr. Weisberg to ask, “If that [bear arms = ‘serve in the militia’] is what the framers meant, why isn’t that what they wrote?” Despite having read my brief (and possibly some of the underlying blog posts?) he was apparently unable to wrap his head around the idea that for founding-era Americans, “the right of the people to…bear arms” might have been understood to mean ‘the right of the people to…serve in the militia.’