Antonin Scalia and the Meaning of “Bear Arms”

Justice Antonin Scalia died two years ago, but his judicial legacy continues to generate discussion and debate. During his three decades on the Supreme Court, Scalia made “originalism” a household term, at least among lawyers, judges, and law professors. Nowhere was that more true than with regard to the Second Amendment, as Scalia’s originalist interpretation of the phrase “the right of the people to keep and bear arms” charted a new course in Supreme Court jurisprudence.

During a CSPAN interview in 2012, Scalia explained his originalist approach to constitutional interpretation, which “is that the text ought to be given the meaning it had when it was adopted; when it was enacted or when it was ratified in the case of the Constitution.” Historical research thus played a vital role in Scalia’s jurisprudence. As he explained in a speech at the University of Virginia, “I deny the premise that law has nothing to do with historical inquiry. Historical inquiry has nothing to do with the law only if the original meaning is irrelevant.”

But did Scalia get the original history of the Second Amendment right? 

The Heller case

Last week in the Washington Post Dennis Baron published an important op-ed asserting that “Antonin Scalia was wrong about the meaning of ‘bear arms.’” Prof. Baron’s essay challenges Scalia’s opinion in District of Columbia v. Heller, a 2008 case in which a deeply-divided Supreme Court struck down the District’s handgun ban, holding (by a 5-4 margin) that the Second Amendment established an individual right to possess firearms for self-defense and other lawful purposes, unconnected to militia service.

The case turned on the text of the Second Amendment, which states:

“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.”

Writing for the majority, Scalia argued that “in numerous instances” the phrase “‘bear arms’ was unambiguously used to refer to the carrying of weapons outside of an organized militia” and “in no way connotes participation in a structured military organization.” For example, nine state constitutions adopted during the early national period expressly established an individual right of citizens “to bear arms in defense of themselves and the state” or “to bear arms in defense of himself and the state.”

Justice Scalia further contended that when the phrase “bear arms” was used in a military context, it was typically followed by the word “against,” a word not found in the Second Amendment. Scalia thus concluded that the phrase “right of the people” established an individual, federal constitutional right to gun ownership. 

The Corpus of Founding Era American English

However, Scalia’s interpretation of the original meaning of “bear arms” now faces a serious linguistic challenge. In his Washington Post op-ed, Baron asserts that linguistic analysis of 17th and 18th century texts refutes Scalia’s interpretation and strongly indicates that the term “bear arms” referred to the military.

To make his case, Baron did a comprehensive search of the term “bear arms” using Brigham Young University’s new online search engine, which now includes in beta version the “Corpus of Founding Era American English” and the “Corpus of Early Modern English,” together containing some 135,000 texts from the colonial and early national period. In his search he turned up 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.”

Baron has studied the issue for years and he was a co-author of an amicus brief in the Heller case. Here is a key passage from the brief:

“The term ‘bear arms’ is an idiom that means to serve as a soldier, do military service, fight. To ‘bear arms against’ means ‘to be engaged in hostilities with.’ The word ‘arms’ itself has an overwhelmingly military meaning, referring to weapons of offense or armor of defense. In every instance we have found where the term ‘bear arms’ (or ‘bearing arms’ or ‘bear arms against’) is employed, without any additional modifying language attached, the term unquestionably is used in its idiomatic military sense.”

Baron’s word analysis using BYU’s search engine would thus appear to confirm that conclusion.

Weisberg on Heller 

Earlier this week on The Originalism Blog, however, David Weisberg challenged Baron’s analysis. Weisberg points out that according to the Oxford English Dictionary and Webster’s Dictionary, the word “bear” has—since the Middle Ages—meant “to carry” or “[t]o support the weight of (anything) whilst moving it from one place to another.” In his view therefore the word “bear” had no particular military connotation in 1791 when the amendment was ratified.

As for Baron’s finding that the predominant use of the phrase “bear arms” was in a military-context, Weisberg argues that:

“Around the founding era, people in America were interested in questions of liberty, freedom from tyranny, rebellion and revolution. One would expect, during such times, that they would be talking and writing about ‘bearing arms’ in a military context, rather than in the context of hunting or target-shooting. But the context does not change the meaning of the words, or, if it does, it was a change in meaning that apparently both the OED and Webster’s missed.”

In response to Weisberg, Neal Goldfarb wrote a very interesting post yesterday on Language Log that takes issue with how Weisberg frames the issue. As Goldfarb explains:

“The issue is not what bear means in isolation, it is what the phrase bear arms means. Because the meaning of a word as used in a particular context is very often affected by that context. So words are not necessarily the basic units of meaning. And it is entirely possible that in its most frequent use, bear arms was not synonymous to carry arms.”

Neal Goldfarb’s argument makes sense to me. At a minimum, moreover, we would also need to know what the word “arms” meant in the 18th century before we can draw too many conclusions about the original meaning of “bear” in the phrase “bear arms.”  

In any case, David Weisberg’s broader work on the Heller decision is well-worth reading. In 2017 he posted on SSRN a provocative and extremely interesting take on the the Heller case and the Second Amendment, titled “A Unique, Stand-alone Second Amendment Implies That Both Heller and McDonald Were Wrongly Decided.”

In his article-length essay Weisberg contends that the Second Amendment does not create a federal constitutional right to gun ownership, but rather simply protects against federal encroachment on “any state-created right of the people to keep and bear arms.” In Weisberg’s view, the purpose of the amendment was to prevent “an overweening federal government” from threatening the “security and freedom of the States.” He argues, therefore, that when it comes to firearms regulation, the Second Amendment limits the federal government but not the state governments:

“Thus, where a State permits residents to keep and use firearms for all traditional lawful purposes, the federal government may not interfere with those very extensive rights. Where a State permits residents to keep and use firearms for some but not all traditional purposes, the federal government may not interfere with those less extensive rights. And where a State severely restricts or eliminates the right to keep and use firearms—in densely populated urban areas, for example—the federal government, including its third branch, may not properly interfere with those restrictions.”

Weisberg argues, furthermore, that the Second Amendment does not even apply to the District of Columbia—the defendant in Heller—because it is not a state. It’s a really interesting and thought-provoking argument, and is available here on SSRN. 

A new era of constitutional litigation and scholarship

The one thing that seems certain is that the rise of corpus linguistics analysis and the digitization of old texts are going to usher in a new era of constitutional litigation and scholarship. When the Court issued its ruling in 2008, the Heller decision generated a tremendous amount of legal analysis. But most of it came before the scanning and electronic cataloging of 18th century documents and literature.

Accordingly, thanks to the tireless work of librarians, editors, and researchers at institutions like BYU, we now have vastly more evidence regarding the original public meaning of the Constitution’s text than was the case even five years ago. With the rise of these new research tools, it is only a matter of time before every word in the Second Amendment (as well as in the Constitution as a whole) will eventually be subjected to searching linguistic analysis.

Corpus linguistics analysis has value even for non-originalist judges, attorneys, and scholars. Although originalism has thus far been associated almost exclusively with conservatives, the outcome of corpus linguistic analysis is unpredictable in any given case. Last week on The Originalism Blog, Michael Ramsey discussed the Baron op-ed and made the interesting point that “clearly corpus linguistics analysis is not always going to produce result originalists expect or are happy with.” Moreover, it seems obvious to me that using originalist methods does not preclude one from also using other methods of constitutional interpretation as well. 

Indeed, Justice Scalia himself did not always limit his analysis to the Constitution’s text. Prof. Ramsey, one of the leading scholars of originalism, examined Justice Scalia’s approach to originalism in an excellent 2017 Notre Dame Law Review article, Beyond the Text: Justice Scalia's Originalism in Practice. As Ramsey explains, in reaching his decisions, Scalia consulted many other sources besides the Constitution when the constitutional text was ambiguous, and the justice “was forthright in admitting that constitutional text standing alone was very often ambiguous.” It’s a great article, and you can find it here on SSRN. 

I also recommend a 2009 UCLA Law Review article, The Second Amendment, Heller, and Originalist Jurisprudence, by Nelson Lund, another major figure in originalism scholarship. Prof. Lund argued that Justice Scalia’s majority opinion in Heller “makes a great show of being committed to the Constitution’s original meaning, but fails to carry through on that commitment.” Although Lund agreed with the result in Heller, he took Scalia to task for how he got there, asserting that Scalia’s “reasoning is at critical points so defective—and in some respects so transparently nonoriginalist—that Heller should be seen as an embarrassment for those who joined the majority opinion.”

It will be fascinating to see how originalist scholars respond to Baron’s findings regarding the phrase “bear arms.” An obvious next step is to apply corpus linguistics analysis to David Weisberg’s assertions about the 18th century meaning of the word “bear” (albeit with the important caveats that Neal Goldfarb identified). It will also be revealing to learn how 18th century texts used the word “arms” standing alone. In 1791, how many words did Americans have to describe muskets and other firearms? Was the word “arms” exclusively used in a military context, or did it also frequently appear in non-military contexts, such as to mean weapons used in personal self-defense and hunting? What words did 18th century Americans use to describe ordinary firearms used outside military contexts? 

The bottom line is modern technology is making it possible for us to answer those questions more accurately than ever before.    

James Madison and the Meaning of “Bear Arms”

Similar questions should be asked about the writings of James Madison, the author of the Second Amendment. For example, how often, and in what contexts, did he use the phrase “bear arms” in his writings, speeches, and other documents? The University of Virginia Press has collected 38,000 Madison documents (and counting) as part of its Papers of James Madison project, which publishes volumes of Madison’s writing in both hard cover and electronic form. Madison’s voluminous writing thus offers a ripe subject for corpus linguistics analysis. 

In understanding Madison’s use of the term “bear arms,” it is worth noting that Madison had very little military experience of his own, having only briefly joined a militia unit in the Revolution’s early days. Madison’s poor health, diminutive stature, and weak and feeble body made him almost comically unsuited for the military. By any measure, he was a man of books, not arms.

In light of Madison’s distinctly non-military personality, outlook, and experiences, it seems to me that he would not have used the military-evoking terms “bear arms” and “well regulated militia”in the Second Amendment unless he had a very particular reason for doing so. Indeed, as Justice Stevens emphasized in his dissenting opinion in Heller, the state constitutions that expressly protected an individual right to use and possess firearms provided Madison with a clear model to use if he intended to protect such a right. In his dissent Stevens elaborated on this crucial point:

“With all of these sources upon which to draw, it is strikingly significant that Madison’s first draft omitted any mention of nonmilitary use or possession of weapons. . . . When Madison prepared his first draft, and when that draft was debated and modified, it is reasonable to assume that all participants in the drafting process were fully aware of the other formulations that would have protected civilian use and possession of weapons and that their choice to craft the Amendment as they did represented a rejection of those alternative formulations.”

That conclusion is underscored by Noah Feldman’s excellent new biography of Madison, The Three Lives of James Madison: Genius, Partisan, President. Prof. Feldman quotes Madison’s original draft of the Second Amendment:

“The right of the people to keep and bear arms shall not be infringed; a well armed, and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”

As Feldman explains:

“The language left little doubt that the right to bear arms meant neither more nor less than the right to serve in a well-regulated militia. The protection afforded to conscientious objectors at the end of the sentence further underscored the purpose of the amendment: It authorized the right to serve in a militia while simultaneously guaranteeing that pacifists such as Quakers could not be made to serve.”

Prof. Feldman’s analysis seems quite compelling to me, but of course Justice Scalia was famously dismissive of the use of drafting history in textual interpretation. 

Nevertheless, it is a striking and telling fact that the original draft would appear to leave no mystery as to what James Madison had in mind when he wrote the Second Amendment.  

Scalia on CSPAN

The full video of Scalia’s 2012 interview with CSPAN is available here. The topic was Scalia’s book (co-authored with Bryan Garner), Reading the Law: The Interpretation of Legal Texts. You can also read the transcript here.

Regardless of what you think of Scalia’s approach to constitutional analysis or his historical methods, the CSPAN interview is very engaging and interesting and I highly recommend it.

Comments

[anon]

As usual, topic selection must slam a conservative.

For a different, scholarly and more objective pov,

see http:

add

//languagelog.ldc.

add

upenn.edu/nll/?p=255

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.

[r]

[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." http://languagelog.ldc.upenn.edu/nll/?p=38422 (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 (priorprobability.com)]

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.