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.
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.
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.