New Legal Tech May Shed Light on the Meaning of ‘Keep and Bear Arms’

New linguistic tools largely support the late Justice Antonin Scalia’s arguments in the Heller decision.

Most gun owners (not to mention reasonable human beings) understand that the phrase in the Second Amendment “keep and bear arms” prohibits the federal government from impinging on the right to own and carry firearms.

But common sense isn’t always a valid legal justification, and judges who care about the original meaning of the Constitution must use founding-era documents to prove how the Second Amendment’s authors would have understood their words.

Towards that end, scholars have developed a new tool called “corpus linguistics” to digitize and search thousands of documents and uncover how colonial Americans used certain words and phrases. James C. Philips of Stanford University and Josh Blackman of South Texas College of Law Houston used corpus linguistics to better understand the original meaning of the Second Amendment, and they published their findings in a recent article for The Atlantic.

They look specifically at the words “keep and bear arms” to judge the soundness of Supreme Court Justice Antonin Scalia’s majority opinion and Justice John Paul Stevens’ dissenting opinion in D.C. vs Heller.

“We are more convinced by Scalia’s majority opinion than Stevens’s dissent, even though they both made errors in their analysis,” the authors conclude.

SEE ALSO: Supreme Court Rejects Anti-Gun Arguments, Agrees to Hear New York Handgun Case

In the Heller decision, Justice Scalia argued that the phrase bear arms could sometimes refer to an individual right rather than a collective right. Only when the phrase includes the word against can scholars safely say the wording refers exclusively to militia service.

Justice Stevens dissented, arguing that the phrase keep and bear arms was a fixed term, similar to cease and desist or lock, stock, and barrel. He claimed that the founders would have understood this construction as always referring to military service.

Philips and Blackman unequivocally disprove Stevens’ claim. Using two corpus linguistics databases that include English documents from several centuries, the researchers were only able to find two instances of the phrase keep and bear arms: in the 1780 Massachusetts Declaration of Rights, and in a proposal for a constitutional amendment by the Virginia Ratifying Convention.

“In short, keep and bear arms was not a term of art with a fixed meaning. Indeed, the meaning of this phrase was quite unsettled then, as it had barely been used in other governmental documents,” Philips and Blackman conclude.

The researchers also considered the phrases bear arms and keep arms separately. They found that bear arms has a “militia-related meaning” in roughly 90 percent of the documents they considered. While this does not disprove Scalia’s claim, it suggests that colonists would have understood bear arms in a military sense regardless of the presence of the word against.  

Keep arms, however, is more ambiguous. Forty percent of the documents refer to keep arms within the context of a militia, but 30 percent reference a person who has firearms for personal use. The remainder of the instances did not support either meaning.

“Based on our findings, an average citizen of the founding era would likely have understood the phrase keep arms to refer to possessing arms for both military and personal uses,” the researchers conclude.

SEE ALSO: No, Judge Young, Justice Scalia Would Be Rolling in His Grave After Your AR Ban Decision

Finally, the researchers considered instances that reference arms in the context of rights.

As with the phrase keep arms, the documents reveal that American colonists would have understood arms and rights as referring to both collective and individual rights. About 40 percent of the results had a militia sense, about 25 percent used an individual sense, and about 30 percent referred to both militia and individual senses. The remainder were ambiguous.

“Here, too, an ‘ordinary citizen’ at the time of the founding likely would have understood that the phrase arms, in the context of rights, referred to both militia-based and individual rights,” Philips and Blackman argue.

Philips and Blackman admit that linguistic analysis forms only a small part of the originalist defense of the Second Amendment. But their findings reveal that, in all likelihood, the authors of the Second Amendment understood it just as gun owners do today. Militia service may be one justification for the right to keep and bear arms, but as with all other guarantees in the Bill of Rights, it resides with the individual.

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About the author: Jordan Michaels has been reviewing firearm-related products for over four years and enjoying them for much longer. With family in Canada, he’s seen first hand how quickly the right to self-defense can be stripped from law-abiding citizens. He escaped that statist paradise at a young age, married a sixth-generation Texan, and currently lives in Waco. Follow him on Instagram @bornforgoodluck and email him at jordan@gunsamerica.com.

{ 40 comments… add one }
  • jay April 25, 2020, 2:23 pm

    The truth is very simple. The founding fathers had just done with fighting against a tyrannical government and it’s long arm, the army. The last thing they wanted was to saddle themselves with an army that could just as easily be turned against them. That’s why the “army” of the new United States was restricted to Washington’s personal guard, now known as the “Old Guard.”
    It’s purpose was for the necessary ceremonial and protection of our dignitaries in dealings with foreign personnel and to serve as a cadre for training militias in the event of a call up.
    That is why they used the term “militia.” The defense of the nation rested squarely with it’s people, expressly, all men aged 18-40 (+/- some in practice).

    There is one other even simpler consideration. That is the 2nd Amendments placing. It is in the Bill of Rights. Can anyone (if they were to use their god given ability to reason) possibly believe the (original) Bill of Rights consisted of 9 guarantees of personal freedoms and 1 government granted privilege?!
    If it wasn’t so serious, it would be ludicrous!

  • Ej harbet March 9, 2020, 9:36 am

    Heller is better than nothing but it could have been a lot better.most of the majority just aren’t capable of going full originalist! Define SHALL NOT BE INFRINGED!

  • Fritz Leber March 7, 2020, 5:55 pm

    It time of peace young men, especially in cities, don’t know one end of their “piece” from the other when it is issued to them if they were drafted. Just saying.

    • SpiritOfLiberty March 15, 2020, 2:28 pm

      According to the Founders, every Able-bodied man over the age of 16 IS the MILITIA! How can ANYBODY, knowing that, argue that the founders would limit the RIGHT to keep and bear arms to military service?

      Also, arms include ANY weapon, NOT just firearms. We are guaranteed the RIGHT to keep and bear ALL arms.

  • oldfuzz695 March 6, 2020, 5:55 pm

    “The right to keep and bare” arms does not make “carrying concealed” against the Constitution, therefore, a fee, a tax or whatever a city, county or state impose on a person for concealed carry is unconstitutional, period. I may or may not carry concealed without a license. This is no one’s business, but if one is ever charged with this unconstitutional statute, contest this all the way to the U.S. Supreme Court for a final decision..

    • Ej harbet March 9, 2020, 9:37 am

      Keep and bear to me means possess and carry

  • frank March 6, 2020, 2:13 pm

    I have a higher authority that I answer to. Luke: 22;36

  • Patrick March 6, 2020, 12:11 pm

    “…The 2nd Amendment doesn’t give citizens right to own guns, it only applies to The National Guard…”

    Well, thank God the Bill Of Rights grants The National Guard the rights to Free Speech, Free Press, and gives The National Guard the right to follow whatever religion it wants to!!!

    • Ted March 7, 2020, 8:33 am

      WE THE PEOPLE ARE THE “NATIONAL GUARD ” !

    • Big Al March 7, 2020, 9:56 am

      Not to mention that no “National Guard” existed at the writing of the Bill of Rights.
      So who or what could they have been referring to?
      And a ‘Militia’ is made up of the PEOPLE, as many were dead set against a standing army, so anyone with half a brain can see that the 2nd has NO relevance to an Army or any GOVERNMENT body.
      Applying modern values to the 2nd is stupid, one must read and understand the writings of the Founding Fathers to find the meaning, and it is VERY plain.
      After reading Steven’s dissent, I became convinced he is either stupid, or blatantly anti gun.

  • FusionPilot March 6, 2020, 11:35 am

    It is helpful to look at contemporary documents created around the time the Constitution was adopted. Jefferson wanted the “Statement of Rights” included in the Constitution, or he would lobby against its adoption. At the time he was Ambassador to France. He specifically wanted something like the “Statement of Rights” included in the Virginia Constitution; hence we can look at the various state constitutions for guidance on the thought process of the day.

    Connecticut’s constitution, adopted after the U S Constitution, contains Article 15 which was included because the state wanted a bill of rights analagous to that in the U S Constitution:

    SEC. 15. Every citizen has a right to bear arms in defense of himself and the state.

    This gives rise to three arguments: 1. It shows the state of mind and clear intent of the people of that period;
    2. It was enacted as part of a statement of rights meant to mirror that in the U S Constitution;
    and 3. If the 2nd Amendment to the U S Constitution were ever repealed, then under the 10th Amendment, that power would fall to the state:

    Amendment X : The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

    Therefore, we in CT and likely many other states, would have freedom to bear arms in accordance with their state constitutions.

  • Michael Boyd March 6, 2020, 11:10 am

    Ya, we’ll have a lot of success standing up to mini-guns, drones, full auto ‘assault’ weapons, poison, nerve gas, etc. etc.
    I’m not promoting caving to tyrants, but what are you/we going to do in the face a full on assault on the Constitution other than giving our lives for a lost cause if the Marxists do get into power.
    We (us including the NRA) have consistently allowed the Federal Govmnt and state legislatures to erode our 2A rights going all the way back to 1934 (read ‘Unintended Consequences’ by John Ross if you can get past the pornographic prose). The 2A amendment is in the U.S. Constitution, so I don’t believe that it is a states right to infringe on the rights therein. We keep putting squishes into federal and state office that either lie or flat out tell us they are going to take our guns.
    We are a house divided and a house divided cannot stand.

    • Ralph L Clatterbuck March 6, 2020, 3:59 pm

      Does Vietnam or Afganistan ring a bell? The U.S. had all of the advanced weapons and air superiority. Who won?

      • DELCO October 23, 2020, 9:35 am

        Ralph, the only Afghanistan you know is the one edited on your tv. You asked in a sarcastic way who won? When fighting against an ideology that’s been bred into many generations, you don’t have a winner or loser as if it’s a football game Ralph. Since 2016 our SOF have been pounding our enemies over there. Small elite teams directing accurate TAC air strikes . Unfortunately the left wing owned media in this country are way to controlled to ever give the incredible progress and victories to Trump. Try talking to the guys involved.

    • Arch March 9, 2020, 7:14 am

      All you people who claim that Armed US Citizens cannot stand against our military do not seem to understand how to fight a guerrilla war. Once the shooting starts, there are NO gun laws. Also, there are many more armed Citizens then there are service members of all branches. A large number of them will NOT follow such orders. All of those aircraft and machines require pilots, operators, mechanics and technicians to keep them moving. All of those people do not live on bases; they live among us. We KNOW who they are and where they live. THEIR lives will be lost first. THEIR families will be up for grabs….trucks carrying fuel, spare parts, munitions, food, etc, etc come from all over the country. Those shipments will be vulnerable. Is the military going to follow orders to KILL Americans just to accomplish an UN-Constitutional political agenda? Are those soldiers willing to DIE to do it? Our fight is with these “legislators” and politicians……NOT the military. But those same people will sacrifice the lives of ALL Americans to achieve their goal.

  • Robert J. Lucas March 6, 2020, 10:30 am

    “The Constitution is over 200 years old and societies change. It must change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that.”

    The late, Great Justice Antonin Scalia

    • BR549 March 7, 2020, 3:24 pm

      Indeed, the problem with most Lefties today is that they believe they’ve already achieved the right to alter the Constitution, even if that desire is driven out of fear and stupidity.

      The fact, however, is that even after all these years, the body of the citizenry STILL has no comprehension of the wisdom it took to put our Founding Documents together, because they believe themselves to be mature enough to alter it.

    • SpiritOfLiberty March 15, 2020, 2:35 pm

      And that is exactly the argument Tyrants use to enslave those who would stand against them!

  • Clem March 6, 2020, 10:18 am

    So I could reasonably say “I am a militia of one!” So I have it all covered. Since government didn’t sponsor the militia at the time of our freedom they have no authority over it today.

  • H Jay Margolis March 6, 2020, 10:13 am

    The right to bear arms is the right to wear a sword and all that derived from it. In other words, the right by Americans to self-defense and to assume the dignity of a gentleman. It extends to firearms by the ENGLISH Bill of Rights after The Glorious Revolution. It is actually a social right.

    At the time of the Revolution, English nobles and gentry raised their own standing militias. Many of the Founders, particularly of the South, assumed many of the social graces and practices of the English nobility. They were gentlemen and they could wear a sword or other means of defense.

    As a socials right, this meant that, provided one had the means or banded with others who did, one had the right to defend his personal property.

    The Founders were social climbers. They did not accept being inferior to nobility. A Commission to military service defined an American officer as a Gentleman to be received by foreign officers as their equal and not to be denied social status at embassies.

    And the Constitution forbids Americans

    Summing up: the Second Amendment was the right of the sword, the right to proclaim one’s social status as a gentleman—and that extended through the ENGLISH Bill of Rights to Protestants (here the social nature is clear). And the right to carry a sword or firearm was also the right to act as any other gentleman—to raise a militia to protect one’s personal holdings.

    To me, the Second Amendment is the PROCLAMATION NOT ONLY THAT—AS AN AMERICAN—I CAN DEFEND MYSELF. IT IS THAT I CAN DEFINE MYSELF. The Second Amendment says that I have the RIGHT to be all and WHATEVER I CAN BE.

    • 2brknot2bfree March 6, 2020, 6:17 pm

      If what you say is true, why did Tenche Coxe pen these words: Quotes on the Second Amendment:

      “As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.” (Tench Coxe in ‘Remarks on the First Part of the Amendments to the Federal Constitution’ under the Pseudonym ‘A Pennsylvanian’ in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1)

      “Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American…. [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.” (Tench Coxe, The Pennsylvania Gazette, Feb. 20, 1788.)

      Notice particularly the part where he mention “Their swords, and every other terrible implement of the soldier, are the birthright of an American….”

      I honestly think you haven’t a clue, and are making things up which are not true so as to try to convince we others, who are knowledgeable, of the righteousness of your theory. After all, what you posit is merely a theory.

      • H Jay Margolis March 8, 2020, 3:46 pm

        I haven’t a CLUE? Well, it HAS BEEN 50 years since I taught history at Colorado State. I studied under Mark Gilderhus.

        But ave you seen the French peasants rising with swords or pitchforks? The use of arms extends to such concepts as Coat of Arms. Peasants did not have them.

        I realized after I posted this that it might have seemed that I was using an elitist term by gentleman. I meant that, as Louis IV did by making aristo clothing so ornate as to become a status symbol, the ability to defend oneself by a sword—which cost a fortune—was the right of only a few.

        I think YOU haven’t a clue in that my argument was that the
        Second is enlightening: it lets EVERYONE be free to define themselves as entitled to self Defence—NOT a privileged few.

      • H Jay Margolis March 8, 2020, 6:20 pm

        Don’t you have a clue that we are IN TOTAL AGREEMENT? I was saying that the 2nd Amendment virtually enshrines I to the law of the land what only is NOTED in the Declaration of Independence: the right to life, liberty and the pursuit of Happiness. That is, the extension of the right to the sword restricted in Europe—the French peasantry revolted not with swords but with pitchforks—was to legalize the right of self-defense equal to the rights enjoyed heretofore by only a select few. And that implies a lot. It says that if you could arrange to EARN an armament, you deserved the rights stemming FROM possession of that arm.

  • Walt Haskins March 6, 2020, 8:44 am

    I wish they would do this on the word “infringe”. It only appears once in the Constitution, that being in the 2nd Amendment. It would shed a lot of light on what restrictions, if any, the founders felt could be placed on the right, not granted by the 2nd Amendment, but protected therein.

    Excellent work.

    • 2brknot2bfree March 6, 2020, 6:22 pm

      I wrote about this meaning in the NYS SCOPE Firing Lines, back in the last edition of 2007. I, too, would like to see SCOTUS use the 1828 Webster’s dictionary meaning, which, until recently was unchanged throughout the history of its publication.

      Hint, it is detailed, and the meaning(s) would preclude any intrusion on the right by any level of government, including state & local. That the federal government saw NY’s Sullivan Law as a reason to make ‘inroads’ in 1934 as it wasn’t challenged by anyone, despite its being used as a means to prop up one political machine – the DemocRATic(k) Party – over another.

    • Ti March 7, 2020, 7:50 pm

      It’s called Occam’s Razor.

      Lib’s need to try it some efing time.

  • Gala Poola March 6, 2020, 7:40 am

    How silly the thought that we’d need an amendment explaining that the military needs firearms. Isn’t that a foregone conclusion? Maybe these smart guys need to take a 101 course in common sense.

  • BRANDON LEE March 6, 2020, 7:03 am

    I don’t care how anyone else interprets the Constitution. You WILL respect it. You WILL follow its guidelines. Or We The People will attack and rid ourselves of each enemy, foreign and domestic. Gents. If you are not already part of a militia, of at least have your own “group,” the time is here to assimilate. Weather in one year, or 5, soon, we will have a very serious decision to make. Stand up for what you know is right, or live under a tyrannical governmental regime that no generation in the future will likely be able to regain control over. These are the choices we will have to make. Please tell me I am seeing things as they are and are not overly sensitive to this issue.

    • Charles Vito March 6, 2020, 10:45 am

      Your right on the money, It’s our God given right and god help those who try to take it away.

    • Nicholas March 6, 2020, 10:57 am

      What Militia? Stop pretending to be part of something that you know nothing about.
      Militia is a requirement of the Constitution; Article I, § 8, Cls. 15 & 16, and Article II, § 2, Cl. 1.
      Militia is a State institution that is primarily controlled by “We the People” as the only authority recognized “to execute the Laws of the Union…”
      “We the People” abdicated our responsibility to maintain “a free State” by abandoning the constitutional Militia. Now there are those who want to pretend that they are somehow a lawful entity.

      • Fee1776 March 6, 2020, 11:48 am

        The US has an organized militia and an unorganized militia. States form the organized militia, and every able body male that is not in it belong to the unorganized militia. It is also codified by Federal Law. Look up those terms.

      • 2brknot2bfree March 6, 2020, 6:25 pm

        “Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American…. [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.” (Tench Coxe, The Pennsylvania Gazette, Feb. 20, 1788.)

    • Michael Boyd March 6, 2020, 11:09 am

      Ya, we’ll have a lot of success standing up to mini-guns, drones, full auto ‘assault’ weapons, poison, nerve gas, etc. etc.
      I’m not promoting caving to tyrants, but what are you/we going to do in the face a full on assault on the Constitution other than giving our lives for a lost cause if the Marxists do get into power.
      We (us including the NRA) have consistently allowed the Federal Govmnt and state legislatures to erode our 2A rights going all the way back to 1934 (read ‘Unintended Consequences’ by John Ross if you can get past the pornographic prose). The 2A amendment is in the U.S. Constitution, so I don’t believe that it is a states right to infringe on the rights therein. We keep putting squishes into federal and state office that either lie or flat out tell us they are going to take our guns.
      We are a house divided and a house divided cannot stand.

  • Willy March 6, 2020, 7:00 am

    Do not let those who know nothing about guns, tell those of us who know about guns, about guns. It is not about guns. It is about power and controlling people. They are also afraid to go after real criminals, or even admit that there should be focus on the real problem of real criminals. Instead, they go after what they believe are the easy ones to control.

  • Steve in Detroit March 6, 2020, 5:49 am

    It will not matter what meaning is accepted to Biden if he is elected POTUS. He has made his intention to void the 2nd Amendment known with his announcement of O’Rourke as his “gun czar”. It would truly be a dark day in U.S. history if Biden is elected. It seems now, with the wide division between Republicans and Democrats that we have entered a dark phase of political brinkmanship. They fail to realize that without the 2nd, there will be no 1st, or any other with a democratic dictator.

    • deanbob March 6, 2020, 8:40 am

      Progressive believe they know what is best for all. As such, they need control of all to enforce their doctrine. If they can eliminate the constitution, they will be well on their way to achieving totalitarian control. History is replete with examples of such, which is why history is seldom required in college; or, if it is, the history is not often accurate.

    • ~ Occams March 6, 2020, 10:10 am

      Not to worry; Israel will never let Biden ‘win’. Trump has given EVERYTHING to Israel, while Amerikans have gone without. They’re not going to let that change.

      • RASH March 6, 2020, 10:43 pm

        Big load of class A bovine excrement, AKA …. bullshit! Israel has no power over Biden, Bernie, Tulsi Gabbard, or Mickey Mouse! You are IGNORANT to even suggest that Israel has ANY power over our election, especially when it comes to Biden. Israel would hate Bernie, because Bernie would cut off ALL military aid to Israel. Israel would hate Biden, because of Biden being VP to Obommie the Commie, and Obommie being a closet Muslim, Biden would also cut off aid to Israel. So, that only leaves Trump. AND, Israel does not have the “juice” to make or break Trump.

  • Wyze Wildfire March 6, 2020, 5:20 am

    It’s great that people are dissecting the wording of the unambiguous 2nd amendment. No matter how many documents they can find from that era with provable meanings of militia vs ‘ordinary citizen’, you can’t ignore the context provided in the proceeding words of the amendment itself: “the right of the people to keep and bear Arms, shall not be infringed.” The right of who? THE PEOPLE. The ending is most important: “SHALL NOT BE INFRINGED.”, Oops too late… Your fathers fathers before you were foolish enough to surrender the 2nd amendment back in 1934 with the NFA. They gave the devil an inch, and the devil has returned again and again for just a little bit more of your God given natural right to self defense, this one precious freedom, once protected by our once honored and agreed upon law of the land the 2nd amendment. We will miss her… Adios America!

  • Dr. Strangelove March 6, 2020, 4:23 am

    During colonial times, every able-bodied male was considered eligible for militia duty, and therefore had not only the right, but the duty to keep and bear arms for the common defense. When my family came to this land, gun control meant that you were required to carry your musket to church, so that others wouldn’t have to defend you.

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