Corpora and the Second Amendment: Weisberg responds to me; plus update re OED
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An introduction and guide to my series of posts "Corpora and the Second Amendment" is available here. The corpus data that is discussed can be downloaded here. That link will take you to a shared folder in Dropbox. Important: Use the "Download" button at the top right of the screen.
New URL for COFEA and COEME: https://lawcorpus.byu.edu.
Two quick updates.
First, David Weisberg has replied to my response to his post on the Originalism Blog, but he doesn't address the point that I made, which was that I disagreed with his framing of the issue.
Weisberg also notes that I didn't respond to the second point in his original post (which dealt with a purely legal issue), and he goes on to say this:
Many people (and I think Goldfarb is one) believe the correct sense of the 2nd Amend is this: “The right of the people to keep and bear Arms, for use in a State’s well regulated Militia, shall not be infringed.” But, if that is what the framers meant, why isn’t that what they wrote? I think that is a very fair question to ask, and it merits an answer. After all, 5 words would have been saved. Will corpus linguistics provide an answer?
I'm not going to offer any views in this series of posts about how I think the Second Amendment as a whole should be interpreted; I'm focusing only on Heller's interpretation of the phrase keep and bear arms. So I'm not going to say whether Weisberg is correct in his speculation about what I think on that score. Weisberg then asks why, if the framers had intended to convey the meaning he posits, they didn't write the amendment in those terms. Although Weisberg thinks that is "a very fair question to ask," I don't think it's a question that's relevant to the issue as the Court framed it in Heller, which had to do with how the Second Amendment's text was likely to have been understood by members of the public, not with what the framers intended. Nevertheless, I'll say that the question to which Weisberg wants an answer is not one that can be answered by corpus linguistics.
Second, I've added the following update at the end of my post responding to Weisberg:
I should have kept scrolling after I copied the entry for bear arms that I quoted above. Had I done so, I would have found the following entry for "right to bear arms":
(a) Heraldry. [Omitted]
(b) orig. and chiefly U.S. The right to keep or use arms (sense 2b); the right to keep or use firearms, esp. for self-defence or to protect one's community or State. The right to bear arms is codified in the Second Amendment of the United States constitution: ‘A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.’ This is one of the best known and most controversial parts of the constitution, and remains the subject of debate between opposing lobbyists.
1776 Constit. Common-wealth Pennsylvania 9 People have the right to bear arms for the defence of themselves and the State.
1792 E. Ryves tr. J. V. Delacroix Rev. Constit. Principal States Europe II. 551 The people have a right to bear arms; but no standing armies shall be maintained in time of peace.
1841 E. A. Theller Canada 1837–8 xix. 310 The right to bear arms, and the right of speech, is an American right.
1879 Churchman 16 Aug. 171/1 Your right to bear arms does not include the right to make a shooting-gallery of another man's private parlor.
1921 Bankers Mag. Mar. 377 The individual citizen is again demanding the right to bear arms—a right which..the Constitution of the United States declares ‘shall not be infringed’.
1980 N.Y. Times 14 Dec. nj8/1 Opposition to gun controls based on the constitutional right to bear arms.
2007 Chicago Defender 19 Sept. 3/3 We need to value our children more than we value our right to bear arms.
It seems reasonable to assume that this entry, being part of the revision that was released earlier this year, was drafted after Heller was decided, and that it therefore took account of Heller's holding in the drafting of the definition. If that assumption is correct, this entry is irrelevant for the purpose of my analysis. And if the entry wasn't influenced by Heller, only one of the seven example sentences provides any support for the language "esp. for self-defence or to protect one's community or State," and in the remaining example, bear arms is explicitly modified by the prepositional phrase for the defence of themselves and the State.
[Cross-posted on LAWnLinguistics.]