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07/26/2021

Corpus Linguistics and Heller (continued)
David Weisberg

I’d like to make a second comment regarding Duke Law’s blog series Corpus Linguistics and the Second Amendment.  (My first post is here.)  This time, I’ll discuss Mr. Neil Goldfarb’s post, “Regarding the Strength of the Corpus Evidence (and Noting Issues that the Evidence Doesn’t Resolve), focusing on his discussion of the phrases “right to bear arms” and “right to keep and bear arms”. 

It will be remembered that Justice Scalia’s majority opinion in Heller cites arms-bearing provisions from the constitutions of nine States, adopted from 1776 to 1820. (554 US 585, n. 8.)  This is what Mr. Goldfarb has to say about state constitutional provisions:

[T]he state provisions are inconclusive because in each such provision, bear arms was modified by a prepositional phrase that has no analogue in the Second Amendment:

bear arms for the defence of themselves and the state

bear arms, in defense of himself and the state

bear arms in defense of themselves and the State

It seems to me that it’s inappropriate to assume that the use of bear arms without any modification would have been understood in the same way as the use of the phrase as modified in the state provisions.   (All italics and underlines in all quotations are in original.)

In a linked post, he says this about state constitutions: “Given that the issue to be decided is how the right to keep and bear arms as used in the Second Amendment was likely to have be[en] understood, there was nothing to be learned from considering uses of that very phrase or of closely related variants, in a similar context.”   

I find all of this mind-boggling.  First of all, I think a thoughtful person believes that, if one is trying to understand the meaning of a phrase in a context, one hopes to find examples of that very phrase or closely related variants in similar, albeit not identical, contexts.  But, from Mr. Goldfarb’s perspective, these are negatives—the more dissimilar the context, the better.

Secondly, Mr. Goldfarb says it is inappropriate to assume that “bear arms” would be understood in the same way in state constitutional provisions and the 2nd Amendment.  Agreed—we want reasoned arguments, not assumptions.  But, should we therefore assume that “bear arms” would not be understood in the same way in state constitutional provisions and the 2nd Amendment?  The second proposition isn’t implied by the first.  If we begin with an open mind, we must reject another assumption, namely, that there is “nothing to be learned” from States’ constitutions.           

Thirdly, we’re told that the reason the state constitutions can legitimately be disregarded is that they all include modifying prepositional phrases that have no analogue in the 2nd Amendment.  But Mr. Goldfarb provides a link to CL data supporting the conclusion that “bear arms” in the 2nd Amendment “would most likely have been understood as conveying the idiomatic sense relating to the military[.]”  He reports that CL provides 531 arguably relevant uses of the phrase “bear arms” or closely related phrases, and that, after excluding all state constitutional arms-bearing provisions, no more than 26 uses could be deemed consistent with Heller.  All the rest are military uses that are inconsistent with the majority opinion in Heller

Mr. Goldfarb offers eight examples (which I assume he randomly chose) of uses that relate only to the military and thus tend to contradict Heller.  Of those eight examples, two are uses in which the subject phrase is immediately followed by a prepositional phrase that has no analogue in the 2nd Amendment:

“bear arms in Defence of our Country”

“borne Arms in defence of this State” 

So, Mr. Goldfarb disregards state constitutional provisions because they include prepositional phrases having no analogue in the 2nd Amendment, yet, of eight randomly-selected examples of uses that purportedly support his preferred understanding of the amendment, two uses—twenty-five percent of the sample—display that very same feature, that is, they include prepositional phrases having no analogue in the 2nd Amendment.  Are prepositional phrases the kind of disqualifiers that disqualify only those uses that tend to support Justice Scalia’s interpretation of “bear arms”?  Apparently so.           

I think the nine States’ constitutional provisions—all of which are formulated more or less along the lines of “bear arms in (or for) (the) defence of themselves (or himself) and (of) the State”—are important in reaching a correct understanding of the 2nd Amendment; it requires a kind of willful blindness to not see their importance.  The fact that the States’ arms-bearing constitutional provisions and the 2nd Amendment have similar contexts—they all appear in constitutions, which are important foundational legal documents; they all make reference to rights to “bear arms”—enhances, rather than detracts from, the value of the former as guides to understanding the latter.  All of the nine States’ constitutional provisions make reference to both self-defense and the defense of the State.  To my mind, this is important evidence that the right referred to in the 2nd Amendment potentially includes the right to keep and bear arms for self-defense and other civilian purposes.  That does not imply, however, that either Heller or McDonald was correctly decided.  (For a more complete exposition of my views on both cases, see here.)