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07/30/2021

Corpus Linguistics and Heller (Part III)
David Weisberg

Continuing my review of Duke Law’s series of essays devoted to corpus linguistics (CL) and D.C. v. Heller (my previous posts are here and here), this is a comment on the post written by Dennis Barron, professor of English and linguistics, which is entitled “Corpus Linguistics, Public Meaning, and the Second Amendment.”  Prof. Barron’s post includes a great deal of common sense, but is ultimately unsatisfying.  His concluding sentence states: “Yes, the corpus data helps us interpret the Second Amendment, but we shouldn’t need evidence from a corpus or the imagined utterances of an eighteenth-century proletariat to know that soldiers bear arms, hunters carry guns, and villains pack heat.”  (Footnote omitted.)

What is unsatisfactory, to my way of thinking, is this.  Justice Scalia’s opinion for the majority in Heller devotes substantial attention to the meaning of the phrase “keep and bear Arms” in the 2nd Amendment.  (554 US at 570-92.)  After consulting various dictionaries published around the amendment’s ratification in 1791, Justice Scalia turns to what he calls “founding-era sources.”  He writes:

The most prominent examples are those most relevant to the Second Amendment: nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.”  It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit. (554 US at 584-85, fn. omitted.)

Prof. Barron does not even mention the existence of these nine state constitutional provisions, much less discuss them, and that is what is disappointing.  In a scholarly argument, surely fairness requires that one address what are claimed to be some of the “most prominent” and “relevant” facts supporting the adversary’s position. 

Here are the nine relevant state constitutional provisions cited and quoted by Justice Scalia (554 US at 585, n.8):

Pennsylvania Declaration of Rights (1776): “That the people have a right to bear arms for the defence of themselves and the state...”

Vermont Declaration of Rights (1777): “That the people have a right to bear arms for the defence of themselves and the State...”

Kentucky Constitution (1792): “That the right of the citizens to bear arms in defence of themselves and the State shall not be questioned”

Ohio Constitution (1802): “That the people have a right to bear arms for the defence of themselves and the State...”

Indiana Constitution (1816): “That the people have a right to bear arms for the defense of themselves and the State...”

Mississippi Constitution (1817): “Every citizen has a right to bear arms, in defence of himself and the State”

Connecticut Constitution (1818): “Every citizen has a right to bear arms in defense of himself and the state”

Alabama Constitution (1819): “Every citizen has a right to bear arms in defence of himself and the State”

Missouri Constitution (1820): “That their right to bear arms in defence of themselves and of the State cannot be questioned”

These nine constitutional provisions were (I presume, I don’t really know the history) all proposed and endorsed by senior political leaders in each State; they all treat of a right to “bear arms”; they all were approved by a majority of voters in each State, which, in the aggregate, must have amounted to tens of thousands of voters; they all were placed in the foundational legal document—the constitution—of each State; and they all were adopted relatively close in time to 1791.  I therefore think it would be fair to say that the contexts in which those nine provisions were proposed and adopted were strikingly similar to the context in which the 2nd Amendment was proposed and adopted. 

Prof. Barron says that we shouldn’t need a corpus or proletarian utterances from the 18th century “to know that soldiers bear arms [and] hunters carry guns[.]”  But the nine foregoing constitutional provisions do not convey the knowledge that  only  soldiers bear arms.  Rather, the nine provisions teach us that “the people”, “the citizens”, and “every citizen” also can bear arms.  Moreover, the nine provisions do not convey the knowledge that one who bears arms must do so with a purpose  exclusively related to military service.  Instead, the nine provisions teach us that citizens or the people have a right to bear arms “in defense of themselves”, and every citizen has a right to bear arms “in defense of himself”.  Bearing arms in defense of oneself is, I submit, not coterminous with military service.  Clearly, when people used the phrase “bear arms” in America around the end of the 18th century, it was their understanding, in a proper context, that people other than soldiers could bear arms for purposes other than military service.

Prof. Barron discusses Aymette v. State, 21 Tenn. 152 (Tenn. 1840), in which the Tennessee supreme court held that the State could prohibit the concealed carrying of a bowie-knife in a public place, notwithstanding the provision in the State’s constitution which declared “that the free white men of this State have a right to keep and bear arms for their common defence.”  It should be obvious that Tennessee’s constitutional arms-bearing provision is materially different in form from the nine provisions cited by Justice Scalia in Heller.  The former provision refers to a single purpose underlying or justifying the constitutional right to keep and bear arms—the “common defence” of a specified class of men.  The latter nine provisions all refer to what are ostensibly two different purposes—defense of himself (or themselves) and defense of the State.  Why the plain language of nine state constitutional provisions should be negated or superseded by an ambiguous provision in one state constitution is a mystery.            

Prof. Barron asserts that there is a “long-held understanding that bear arms has always been a military term[.]”  In support of that assertion, he quotes from the Aymette opinion:

A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day for forty years, and yet it would never be said of him, that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane.

First, insofar as the foregoing relates to firearms carried or borne without concealment, it is dicta—it is not an essential part of the reasoning supporting the Aymette result. Mr. Aymette was neither bearing nor carrying a rifle without concealment; he was carrying and concealing a bowie-knife.  And he was neither hunting nor engaged in military service; he was looking to settle a quarrel with an antagonist.  Nine state constitutional provisions directly imply that a person, or people, or citizens might bear arms for his or their self-defense, which is different from hunting deer.  Nothing in Aymette says or implies that people cannot bear arms in or for their own defense.

Prof. Barron says that the “long-held understanding” is bolstered by a CL search conducted by historian Saul Cornell, who found more than 100 uses of bear arms in founding-era documents; 96% had “a military context”.  So, 4% did not have a military context.  I would think that those who study linguistics would be the first to agree that, in understanding a word or phrase, context is crucial.  I submit that, when we consider the use of bear arms in the 2nd Amendment, the most similar contexts are found in roughly contemporaneous state constitutional arms-bearing provisions.  Nine of those provisions directly imply that those words, in those contexts, can be understood as applying either to someone defending himself or to someone in military service.  Even if those uses amount to no more than 4% of the total, I think they carry the day.