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May 31, 2018


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As usual, topic selection must slam a conservative.

For a different, scholarly and more objective pov,

see http:




Why simply choose sources that support a point and ignore those that don't? this, to be sure, is advocacy. One supposes there is nothing wrong with being a left wing ideologue.

However, some signal, IMHO, should be given to acknowledge that an analysis is not objective, but simply trying to embarrass a "conservative" or prove a left wing talking point to be correct. Perhaps,

"For those of us who are politically opposed to a right of individuals to possess firearms, several sources can be cited to prove our side to be correct." At least then, the omission of any objectivity (such as the reference to incorporation above) could be read as consistent with the author's stated purpose.

THen, of course, the FL becomes a venue for lawyer's briefs. Nothing wrong with that, again. But, let's not pretend filing lawyer's briefs on contemporary issues on a legal scholarship blog is "scholarly." (As some who boast about posting here sometimes clearly do.)

Deep State Special Legal Counsel

The best bear arms are Yogi's. You can close the comments now.


[My apologies if this posts twice.]

The analysis that the meaning of "bear arms" was typically used in a military context in 17th and 18th century texts is persuasive. However, I also find very persuasive the fact that the entirety of the post completely ignores the preceding word: keep. To go further down Neal Goldfarb's road, the issue is not what "bear arms" means in isolation, it is what the phrase "the right of the people to keep and bear arms" means. The second amendment protects two rights of the people, the right to keep arms and the right to bear arms.

The people's right to keep arms seems very much to denote an individual right to possess arms not limited to military involvement. In fact, Mr. Goldfarb not only searched the corpus for "bear arms" but also provides the corpus for "keep arms." (click on the link near the end of the post). Reviewing the usage of "keep arms," it quickly becomes clear that this term was not understood only or primarily in the military context.

Anthony Gaughan

Thank you for your comment, "r." The result of your search of the term "keep arms" is quite interesting indeed. The BYU search engine for the 18th century corpus is brand new, so I certainly expect that in the weeks and months ahead the 18th century usage of every word, phrase, and combination of words in the Second Amendment is going to be very closely and exhaustively scrutinized. I think it's exciting. We are getting a new window into 18th century America and the world in which the Constitution was written and adopted. To paraphrase Faulkner, the past is very much alive. Thanks again.

Deep State Special Legal Counsel

Why don't gun owners stand up for a woman's right to bodily privacy?

Deep State Special Legal Counsel

Where were the fun owners when the two dudes were arrested at the Starbucks?

Neal Goldfarb

r is correct that ultimately the issue is the meaning of "keep and bear arms" rather than simply "bear arms." COFEA provides no evidence on that specific issue, because it has no examples of "keep and bear arms" other than those that appear in what appear to be drafts of the Second Amendment. However, there are ideas from linguistics more broadly that suggest ways of thinking about the issue that I think are useful, and that provide a perspective from Justice Scalia's.

In any case, I wouldn't put too much weight on the data in COFEA on "keep arms," because it's so sparse. The phrase shows up in only 11 corpus lines (compared to hundreds for "bear arms"), and some of them seem to me to be in military contexts.

More importantly, one of the issues that will be relevant here is not simply how "bear arms" and "arms" *can* be used, but whether one or the other of the uses predominates. If one meaning does predominate, the existence of counterexamples doesn't necessarily carry much weight in determining what the ordinary meaning was.

Finally, I'll be posting several hundred corpus lines for "arms" shortly.

Anthony Gaughan

Thanks so much, Neal. Your posting and analysis of the data provide a tremendous service for everyone interested in this very important question.

Enrique Guerra-Pujol (

This new database sounds very promising but my prediction is that it won't go far in resolving the originalism/living constitution dilemma, even if the database were comprehensive and easily searchable (like Google). Why not? Two reasons: (1) Because the people who drafted and published the documents in the database themselves did not agree about the meaning of the Constitution, and (2) even if they did agree on its meaning, they literally lived in a different world and had different assumptions about the meaning of liberty, rights, and duties. I'm thinking here of Thomas Kuhn's notion of theoretical paradigms or world-views in the history of science. To the extent such events as the Civil War, the New Deal, or the election of Trump resulted in a "paradigm shift" or a new way of thinking about liberty and the Constitution, the BYU database will be the starting point of our historical analysis, not the end point.

Anthony Gaughan

Thank you for your comments, Enrique. I agree entirely that these methods should be the starting point, not the end point, of constitutional interpretation.

My own overarching view is that the more information that the courts have when addressing constitutional issues, the better. That is why I welcome the use of historical research for understanding and analyzing the Constitution, including historical research into the original public meaning of constitutional terms, phrases, and words.

To be sure, as you rightly point out, there are inherent limitations into any such inquiry, particularly with regard to efforts to ascertain the original "intent" of the framers, which is even harder to pin down than the original "meaning" of the words.

But nevertheless I think that historical research in all its forms provides a helpful baseline and starting point for courts faced with resolving difficult constitutional issues. Thanks again.

Jeremy Telman

Thanks to Neal for weighing in, but I disagree with him about the nature of the inquiry. Given the rapid changes in political theory and even in constitutional vocabulary in the decade leading up to the drafting of the Constitution, I do not think courts should be in the business of determining a "predominant" meaning. If "keep arms" and "bear arms" do not clearly establish an intention to create a private right to bear arms, rather than a concern with militias, then we are in the realm of constitutional construction. There, I would hope that courts would defer to reasonable constructions that legislatures have adopted. Where there is no clear legal resolution to a question of interpretation, courts' institutional competence should yield to constitutional meaning as construed by the political branches.

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