The coming corpus-based reexamination of the Second Amendment [Updated]

« previous post | next post »

[An introduction and guide to my series of posts "Corpora and the Second Amendment" is available here.]

[Update: Broken link fixed; description of uploaded data corrected.]

It was only three weeks ago that BYU Law School made available two corpora that are intended to provide corpus-linguistic resources for researching the original meaning of the U.S. Constitution. And already the corpora are yielding results that could be very important.

The two corpora are COFEA (the Corpus of Founding Era American English) and COEME (the Corpus of Early Modern English). As I've previously explained, COFEA consists of almost 139 million words, drawn from more than 95,000 texts from the period 1760–1799, and COEME consists of 1.28 billion words, from 40,000 texts dating to the period 1475–1800. (The two corpora can be accessed here.)

Within a day after COFEA and COEME became available, Dennis Baron looked at data from the two corpora, to see what they revealed about the meaning of the key phrase in the Second Amendment: keep and bear arms. (Baron was one of the signatories to the linguists' amicus brief in District of Columbia v. Heller.) He announced his findings here on Language Log, in a comment on my post about the corpora's unveiling:

Sorry, J. Scalia, you got it wrong in Heller. I just ran "bear arms" through BYU's EMne [=Early Modern English] and Founding Era American English corpora, and of about 1500 matches (not counting the duplicates), all but a handful are clearly military.

Two weeks later, Baron published an opinion piece in the Washington Post, titled "Antonin Scalia was wrong about the meaning of ‘bear arms’," in which he repeated the point he had made in his comment, and elaborated on it a little. Out of "about 1,500 separate occurrences of 'bear arms' in the 17th and 18th centuries," he said, "only a handful don’t refer to war, soldiering or organized, armed action." Based on that fact, Baron said that the two corpora "confirm that the natural meaning of 'bear arms' in the framers’ day was military."

My interest having been piqued, I decided to check out the corpus data myself.

I've now downloaded from COFEA what I think is the most directly relevant data, including what I think are all instances of the constructions bear arms, bears arms, bearing arms, bore arms, and born(e) arms. I've made an initial coding pass through that data, and also taken a quick look at some additional data that I downloaded.

Having done that, while I'm not ready to go as far as Baron does, I do think that what I've seen provides a substantial basis for challenging Heller's interpretation of keep and bear arms.

However, the purpose of this post isn't to talk about what the data shows; I'll reserve that for a series of posts over the next several weeks. Rather, my purpose here is to prime the pump for the discussion that I think the corpus data is going to generate.

I want to encourage people who are interested in the issue to start looking at the corpus data for themselves. To begin with, anyone who wants to intelligently participate in the discussion will have to get their hands dirty with the data.

And beyond that, I think that this can be a good way to introduce lawyers, law professors, and (hopefully) judges to some of the ways in which corpus analysis can be used in legal interpretation. The data will be discussed in the posts that I will be doing, and presumably in publications and posts by others. Those discussions will provide demonstrations of corpus analysis in action, and readers having the data will be abot to refer to it in following the analysis, like opera-goers following along in the libretto.

In addition to wanting to encourage people to engage with the data, I want to help enable them to do so. To that end, I will be posting links to downloadable spreadsheets that will include much of the data that I will be analyzing. You will find the first such link below, and I will provide links to additional data periodically.

Posting the data this way will make it easily accessible to people who've had no prior experience with corpora, or who'd simply rather not do the work needed to download the data themselves. It might also might make it possible for there to be a single agreed-upon data set for people to work from, which would facilitate discussion and debate. (I realize that if the data I post is going to serve that purpose, I'll have to be open to reasonable suggestions about additional data to include.)

Because the search results may include duplicates and near-duplicates, the data I post will be deduped before posting. And to provide visibility into the deduping process, each spreadsheet will include not only the deduped data, but also the raw data and the duplicates that were extracted (along with warnings not to use either of those for analysis.)

With that background out of the way, you can access the first batch of data here. It consists of

  • all instances in COFEA of arms appearing within one word to the right of any form of the verb bear (bears, bearing, etc.) (388 corpus lines after deduping and other cleanup, as explained in the spreadsheet), and
  • All instances in COFEA of arms appearing within three words to the right of any form of the verb keep (keeps, keeping, etc.) (57 corpus lines after deduping and other cleanup, as explained in the spreadsheet).
  • 1,000 instances in COFEA of arms, with no collocates specified (993 after deduping), out of a total of 24,236.

There were no instances in COFEA of the phrase "keep and bear arms," except for instances that are found in what appears to be the text of the Second Amendment. For obvious reasons, those instances shouldn't be included in the analysis of the data.

 

[Cross-posted on LAWnLinguistics.]

 

[Update: From this point on, I will delete any comments that I think are not  responsive to the substance of this post. I don't regard comments that merely state the commenter's views about  the meaning of the Second Amendment (e.g., those by Felix) as being responsive. I won't delete Felix's comments that came before this update, but future comments that are similarly unresponsive will be deleted.]

 



19 Comments

  1. Joe said,

    May 28, 2018 @ 3:15 pm

    or who'd simply rather not do the work needed to download the data themselves

    Could you explain how to do that?

  2. Patrick Whittle said,

    May 28, 2018 @ 3:34 pm

    Any instances of "keep/kept arms" without "bear"?

  3. Neal Goldfarb said,

    May 28, 2018 @ 3:45 pm

    There's a description here of how to do one kind of search. To download the results, select everything via Ctrl-A, copy, and paste into a spreadsheet.

  4. Neal Goldfarb said,

    May 28, 2018 @ 4:43 pm

    @Patrick Whittle:

    Any instances of "keep/kept arms" without "bear"?

    Yes. They're in the spreadsheet I've linked to.

  5. Gregory Kusnick said,

    May 28, 2018 @ 5:52 pm

    While this is helpful, and I'm glad you've provided it, it seems to me that searches for variants of "keep and bear arms" address only half of the question. Such searches help us figure out what people were talking about when they used those words and phrases, but they don't tell us what other words and phrases people used to talk about firearms in ordinary discourse unrelated to military action. To refute the claim that "keep and bear arms" includes household weapons requires showing that people of that era normally used different language for such weapons.

  6. Garrett Wollman said,

    May 28, 2018 @ 5:59 pm

    Neal, I'm curious if you can name any other phrases in the constitutional text (or other foundational texts) the meaning of which is still contested, where this sort of analysis might be illuminating. In other words, is this a one-trick pony, as it were, or something that generalizes to other active controversies?

  7. Arthur said,

    May 28, 2018 @ 7:52 pm

    Garrett Wollman: "Emoluments" is interesting because the Emoluments Clause is the subject of several ongoing lawsuits, but it hasn't been the subject of much interpretation since the Constitution was written.

    Other constitutional phrases where a corpus approach might be enlightening:
    "executive power"
    "privileges and immunities"
    "necessary and proper"
    "well regulated militia"
    "direct tax"

  8. Neal Goldfarb said,

    May 28, 2018 @ 8:32 pm

    @Garrett Wollman:

    Neal, I'm curious if you can name any other phrases in the constitutional text (or other foundational texts) the meaning of which is still contested, where this sort of analysis might be illuminating. In other words, is this a one-trick pony, as it were, or something that generalizes to other active controversies?

    There's a case now before the Supreme Court regarding the meaning of the phrase "officers of the United States," where amicus briefs have been filed that rely on corpus analysis. I discussed it here.

    There has been at least one paper undertakes a corpus analysis of "emoluments." Phillips & White,The Meaning of the Three emoluments Clauses in the U.S. Constitution.

    I don't know if it counts as an active controversy, but there are originalists (most notably Randy Barnett) who argue that the original meaning of "commerce" in the Commerce Clause is narrower than is reflected in the prevailing Supreme Court caselaw. See also Lee & Phillips, Data Driven Originalism, which looks at the issue.

    I'm not sure what else is out there as an active controversy. But I think that one of the purposes behind the BYU Law corpora is to enable research into whether interpretations that are currently settled are inconsistent with the original meaning.

    For example, Lee Strang has published an article that uses corpus data to investigate the meaning of "religion" in the First Amendment.

  9. Felix said,

    May 28, 2018 @ 8:59 pm

    I don't understand the significance of "bear" having only or even mostly a military significance, since the primary reason for civilians to have arms was to keep the government from getting out of line, as illustrated by the British coming to Concord and Lexington to confiscate weapons and ammunition. Self-defense against animals and criminals was no doubt in mind too, but not the reason for the Second Amendment. I have seen people tiptoe around this aspect, as if it's some dirty secret that no one talks about in polite company, but most people I know, both pro and con, will admit it.

    I also don't understand why "bear" is even thought to only have a military significance; I have always understood it to mean "carry ready to use" as opposed to just bringing it along. It may be most commonly used in a military manner, but I have seen (modern day) reports of burglars bearing weapons.

    And I wonder how "bear arms" relates to "bearing bad news".

  10. Neal Goldfarb said,

    May 28, 2018 @ 9:51 pm

    Felix: Please note the update at the end of the post, above.

  11. Ethan said,

    May 29, 2018 @ 1:11 am

    @Garrett Wollman: Interpretation of the requirement that the president must be a "natural born Citizen" was an issue in the past. I could imagine scenarios in which it again becomes a point of contention, although some of them (e.g. candidacy of a test-tube baby) seem unlikely to be settled by reference to historical text.

  12. Peter W. Meek said,

    May 29, 2018 @ 6:27 am

    Are there any cases where "the people" does NOT refer to ALL Americans? Are there any other cases where "bear arms" is found near "the people"?

    How about contemporary uses of the word "militia"? When not referring to a specific unit of organized militia does it normally refer to ALL able bodied men?

  13. TIC said,

    May 29, 2018 @ 7:19 am

    Tremendous work, Neal… I'm very much looking forward to the upcoming analyses and discussions… Thanks so much…

    Also, to the question of other potential corpus-based analyses, I'm curious about the notion that "the people" refers and extends to each and every individual person… It would be one thing if 2A plainly stated that the federal government cannot prevent the states from allowing (and potentially regulating) gun ownership/possession… And quite another if it plainly stated that no individual can ever be prevented from gun ownership/possession… I've seen plenty of debate around this issue centering on the meaning of "(well-regulated) militia", but little if any centering on the meaning of "the people"…

  14. ajay said,

    May 30, 2018 @ 10:43 am

    Interpretation of the requirement that the president must be a "natural born Citizen" was an issue in the past. I could imagine scenarios in which it again becomes a point of contention, although some of them (e.g. candidacy of a test-tube baby) seem unlikely to be settled by reference to historical text.

    I remember having great fun misinterpreting this when it was an issue with Obama.

    The founders had clearly read "Macbeth" and wanted to avoid being overthrown by a rival who had been "from his mother's womb/Untimely rent".

    No, the founders were worried about unchecked executive power being abused by some evil genius, and wanted to restrict the presidency to those who had been "naturals" from birth, or, as we would now say, "idiots".

    Or, given that the clause actually reads:
    "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President"
    and if you diagram that sentence (look at the commas) it's clear that there are only two groups of eligible people:
    "natural born Citizens…at the time of the Adoption of this Constitution"
    and
    "Citizens of the United States at the time of the Adoption of this Constitution"

    Now, we're not told the difference between a "natural born Citizen" and a "Citizen of the United States" but that doesn't matter because the intent is clear: to be president, you must have been either one or the other in 1789. Which means that pretty much every president for the last 170 years has been illegitimate because none of them were anything at all in 1789.

  15. Arthur said,

    May 30, 2018 @ 2:35 pm

    Another argument for the MacBeth interpretation of natural born citizen is that the framers of the Constitution were very concerned that the United States not become an empire iof the kind created by the the Caesar’s. So they would not want an executive born as one of the Caesar’s was, by Caesarian section.

  16. ajay said,

    May 31, 2018 @ 4:27 am

    Good point. And while we don't know for sure if a c-section causes dictatorial impulses in the infant, one cannot be too careful.

  17. ajay said,

    May 31, 2018 @ 11:31 am

    It's also possible that this represents the drafters' horror of inherited authority, and is intended to restrict the presidency to natural children (rather than legitimate children).

  18. DWalker07 said,

    June 1, 2018 @ 1:16 pm

    "Which means that pretty much every president for the last 170 years has been illegitimate because none of them were anything at all in 1789."

    Wow, that's fascinating. All of our recent presidents have been illegitimate…..

  19. Joseph DeChicchis said,

    June 1, 2018 @ 6:26 pm

    I understand that your intent is to "prime the pump" for future discussion, so perhaps my comment is a bit premature, but I too offer it as a prelude to further commentary. My own linguistic views on Heller were not precisely represented by the amici curiae, yet I applaud those scholars for having informed that important Constitutional discussion, and I do agree with most of the positions advanced in their brief. That said, let me get to a point which the new corpora can help us address.
    Although Scalia's discussion of Ginsburg makes clear that "bear arms" does not necessitate the "participation in a structured military organization", Scalia was certainly wrong to suggest that "bear arms" means simply to "carry arms". Scalia would have done better to have used our current distinction between the adjectives "military" and "martial" to tease out a middle ground of understanding. For example, the martial use of a weapon could easily be contrasted with the military use of a weapon (cf. the current distinction between "martial arts" and "military arts", not to mention the use of "militaristic" to make behavioral distinctions which are independent of social affiliations). Given Scalia's overall competence as a persuasive writer, he might have tried to muster the use of "martial" in this manner. Perhaps it merely escaped him that a person can fight as an individual, without being part of a larger unit, or perhaps Scalia had some other legal conundrum in the back of his mind. Even so, Scalia, quoting Ginsburg (himself quoting Black), clearly understood that "bearing arms" meant "being armed and ready for offensive or defensive action in a case of conflict with another person". Moreover, by using an analysis along the lines of "the carrying of arms for martial/fighting purpose", he could have sidestepped the military organization issue and better addressed Stevens's points of dissent. In fact, Scalia could have improved his characterization of Quaker pacifists by writing something like: Quakers opposed the martial use of arms, and thus opposed military service. (Scalia was also wrong to write "violent" because many Quakers used guns to shoot animals for food, and such shooting is certainly violent.) Indeed, cursory scanning of the COFEA data shows the meaning of "bear arms" to be overwhelmingly martial in the general sense of being armed for fighting (i.e., not merely carrying a weapon, and not hunting food), and this is further confirmed by the use of "armed women", but the military meaning of affiliation with a military unit is not so clear. Another caveat is the nature of the corpus itself, for perhaps we simply have more writing about military armed confrontations than about nonmilitary armed confrontations. As we delve into the COFEA data, I suspect that we will find additional reasons to value Henry Campbell Black's influential dictionary.

RSS feed for comments on this post