Dennis Baron (in WaPo) on corpus linguistics and "bearing arms"

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The Washington Post published an opinion piece earlier today by Dennis Baron, with the self-explanatory title "Antonin Scalia was wrong about the meaning of 'bear arms.'" The crux of the article:

By Scalia's logic, the natural meaning of "bear arms" is simply to carry a weapon and has nothing to do with armies. He explained in his opinion: "Although [bear arms] implies that the carrying of the weapon is for the purpose of 'offensive or defensive action,' it in no way connotes participation in a structured military organization. From our review of founding-era sources, we conclude that this natural meaning was also the meaning that 'bear arms' had in the 18th century. In numerous instances, 'bear arms' was unambiguously used to refer to the carrying of weapons outside of an organized militia."

But Scalia was wrong. Two new databases of English writing from the founding era confirm that "bear arms" is a military term. Non-military uses of "bear arms" are not just rare — they're almost nonexistent.

A search of Brigham Young University's new online Corpus of Founding Era American English, with more than 95,000 texts and 138 million words, yields 281 instances of the phrase "bear arms." BYU's Corpus of Early Modern English, with 40,000 texts and close to 1.3 billion words, shows 1,572 instances of the phrase. Subtracting about 350 duplicate matches, that leaves about 1,500 separate occurrences of "bear arms" in the 17th and 18th centuries, and only a handful don't refer to war, soldiering or organized, armed action. These databases confirm that the natural meaning of "bear arms" in the framers' day was military.

The two corpora that Baron used were made available for public use (in beta versions) about two weeks ago; more information about them is available in my post about their public unveiling, "The BYU Law corpora." Baron (who had joined in the linguistics professors' amicus brief in Heller) was quick to take advantage of these corpora, and on May 7 he posted this comment on that post:

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.

Since I thought that this news deserved more attention than it would was likely to get in the comment thread, I did a separate post about it: "'bear arms' in the BYU Law corpora." All of which is to say, you read it here first.

[Cross-posted on LAWnLinguistics.]



14 Comments

  1. Y said,

    May 21, 2018 @ 9:13 pm

    Does Hamlet's "to take Arms against a Sea of troubles and by opposing end them" reflect an older usage, or is there a contrast in between "taking arms" and "bearing arms", in Early American English as well?

  2. DaveK said,

    May 21, 2018 @ 9:57 pm

    @Y: Putting aside the fact that "bear" is not synonymous with "take", the metaphor seems to refer to military action, even if performed solo

  3. Ted McClure said,

    May 21, 2018 @ 10:10 pm

    As a bit of an enthusiast about 18th Century military affairs, I believe that bearing arms was a largely military term at the time. But the Second Amendment says "the right to bear arms", not just "bear arms". Different expressions. The right to bear arms was one of the rights of a gentleman. Until they went out of style the weapon of a gentleman going about it public was the sword. Nothing else appearing (such as livery–a uniform), a civilian man with a sword at his hip was arguably a gentleman. And that distinction mattered. Remember to whom most of the Constitution applied: Free (white, Christian) landowners. I speculate that the thought behind this phrase may have been "if we make all free landowners gentlemen, at least as to the bearing of arms if not as to birth, and prohibit that right from being abridged, then they can participate in the militia and no government can take their weapons away". Maybe.

  4. Lex said,

    May 21, 2018 @ 10:36 pm

    That many of those non-existent examples of non-military usage include state constitutions, local ordinances, and remarks re drafting the Federal Constitution seems somewhat relevant.

  5. Y said,

    May 22, 2018 @ 1:27 am

    A link to the search in COFEA:
    https://lawncl.byu.edu/cofea/kwic;q=bear;collocate=arms;left=1

  6. Michael Watts said,

    May 22, 2018 @ 4:41 am

    It seems pretty unsurprising that most references to carrying weapons would occur in a military context. But surely the relevant question here is not "what share of uses of the term 'bear arms' refer to formalized military activity?", but "assuming a person of the late 18th century wanted to refer to carrying weapons regardless of formal military affiliation, how likely would they be to use the term 'bear arms' to describe doing so?"

    If the answer to that second question is 100%, then no matter how often "bearing arms" is used to talk about formal military situations, that isn't evidence that in any particular case it should be read as talking about a formal military situation. The fact that a corpus is indexed by word form but not by semantics doesn't mean formulating the question around word forms rather than semantics makes sense, it just means the question about word forms is easier to answer.

  7. Ben Orsatti said,

    May 22, 2018 @ 8:21 am

    Early American jurisprudence seems to limit the sense to (1) formal military or militia activity, or (2) anti-government revolutionary insurrection. To wit:

    "i then thought that all of us who had property in Northamerica, and were absent from the country, would forfeit it, but from the late accounts we have, we find the congress acts upon more liberal principles, and intend to give time to all absentees to return and clame their property, even those that deserted them in the day of distress, and bore arms against them; but, if they do not return in a certain limited time, their property is to be confiscated, and you may take for granted, they will have no partiality towards an officer in the kings service."

    Farley v. Shippen, 1794 WL 329, at *2 (Va. High Ch. Mar. 1794)

    "The principle upon which compensation was made for sites for arsenals and fortifications, was, that a considerable extent or space of land, in favourable situations, for the defence or protection of the country was appropriated, solely for the use of the state for military men, and as a grand deposit for arms and ammunition, and as places of resort in times of danger, to which the citizens of the country never had access, but when called upon to bear arms. "

    Lindsay v. E. Bay St. Comm'rs, 2 S.C.L. 38, 54 (S.C. Const. App. 1796)

    "He was afterwards pardoned by George II., on condition of leaving the kingdom, and never again bearing arms against it. […] Notwithstanding these provisions, no Frenchman may, under any circumstances, bear arms against his native country, without subjecting himself to the penalties of treason."

    Williams, Case of, 29 F. Cas. 1330, 1332 (C.C.D. Conn. 1799)

    "Provided, nevertheless, that nothing herein contained shall be construed to include any of the good citizens of this State from holding and exercising any of the aforesaid offices who were *545 under the necessity of receiving protection from the late common enemy, and who after receiving that protection did not stay voluntarily with them, nor took any active part in any manner, by furnishing them willingly with provisions, or bearing arms against the State, or accepting any appointment under the said enemy, civil or military."

    Harrington v. McFarland, 1 N.C. 543, 544–45 (N.C. Super. L. & Eq. 1802)

    "Appeal from the decision of Brevard, J., in Sumter district, on a motion to quash the writ, and set aside proceedings in this case, on the ground that the defendant had been served with the process, while he was on duty attending a muster of the militia, under a clause in the militia act of 1794, which enacts, "that no civil officer whatsoever, shall on any pretence, execute any process, unless for treason, felony, or breach of the peace, on any person whatsoever at any muster, or other time, when such person shall be obliged to bear arms, in pursuance of the directions of said act, nor in going to, or returning from, any muster or place of rendezvous, or within twenty-four hours after such person shall be discharged, under the penalty of £5, sterling; and the service of any such process shall be void, to all intents and purposes.""

    Hickman v. Armstrong, 4 S.C.L. 176 (S.C. Const. App. 1807)

    "The opinion does not declare that the person who has performed this remote and minute part may be indicted for a part which was, in truth, performed by others, and convicted on their overt acts. It amounts to this and nothing more, that when war is actually levied, not only those who bear arms, but those also who are leagued in the conspiracy, and who perform the various distinct parts which are necessary for the prosecution of war, do, in the sense of the constitution, levy war. It may possibly be the opinion of the supreme court that those who procure a treason and do nothing further are guilty under the constitution."

    United States v. Burr, 25 F. Cas. 55, 177 (C.C.D. Va. 1807)

    "Can the state compel them to bear arms, to pay taxes, or to perform any other duties of a citizen?"

    Jackson ex dem. Gilbert v. Wood, 1810 WL 1244 (N.Y. Sup. Ct. 1810)

  8. Gregory Kusnick said,

    May 22, 2018 @ 12:39 pm

    Michael Watts: My assumption would be that prior to the Revolution, most talk of weapons would be in the context of how those weapons would have been used in daily life, e.g. hunting and defending livestock from predators. But apparently the corpora contain essentially no usages of "bear arms" in that sort of context. So either such talk was nearly nonexistent (which seems unlikely), or they did not normally use the phrase "bear arms" to describe it.

  9. Ben Orsatti said,

    May 22, 2018 @ 1:52 pm

    @Gregory Kusnick

    Ooh, here's one from 1587:

    https://lawncl.byu.edu/coeme/full-context?q=arm%2Fl%20&textId=A68202&position=1495424

    "And one speciall matter amongest other wherewith he was charged , was , for bearing certeine arms that were said to belong to the king , and to the prince . The bearing where of he iustified and maintened , that ( as he tooke it ) he might beare them as belonging to diuerse of his ancestors , and withall affirmed , that he had the opinion of heralds therein . But yet to his indictment he pleaded not giltie : and for that he was no lord of the parlement , he was inforced to stand to the triall of a common inquest of his countrie , which found him giltie , and therevpon he had iudgement of death : and shortlie after , to wit , the 19 of Ianuarie , The earle of Surrie beheaded . he was beheaded on the tower hill ."

  10. David said,

    May 22, 2018 @ 2:46 pm

    That instance of "bear arms" seems to refer to "arms" in the heraldic sense, not in the sense of carrying weapons.

  11. Ben Orsatti said,

    May 22, 2018 @ 3:27 pm

    David: Verily, miffed the foreft for the trees, did I. Was thinking that maybe the heralds were "expert witnesses", authenticating the provenance of the weapons, which would have been "grandfathered" in, prior to a the King's "disarmament" decree, in the manner of the Japanese shoguns, who would confiscate the bows and rifles of the commoners.

    Never occurred to me that "arms" might mean "shields with sables and such". Duh.

    In any event, there seem to be a few contemporaneous usages of "bearing arms" in the sense of "carrying" or "packing heat" (https://lawncl.byu.edu/coeme/full-context?q=arm%2Fl%20&textId=K021793.001&position=108988), but not many.

  12. philip said,

    May 22, 2018 @ 5:42 pm

    Whatever about its original meaning in the 18th century, the right to bear arms does not imply the secondary right to murder your fellow classmates with those arms. The right to bear arms needs to be taken out of the US Constitution.

  13. David Marjanović said,

    May 22, 2018 @ 5:55 pm

    This is the point where I just roll my eyes and implore You The People of the United States to agree on somethinganything –, write it down in some clearly understandable form, and use that to completely replace the Second Amendment.

    But of course I know that's not going to happen. The Big-C Constitution is the hardest constitution in the world to amend; that's why you even bother to count your amendments in the first place. Back to rolling my eyes.

  14. Thomas Rees said,

    May 22, 2018 @ 6:30 pm

    This explains why Trump feels entitled to usurp a coat of arms he has no right to bear. https://www.nytimes.com/2017/05/28/business/trump-coat-of-arms.html

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