Over the past decade, research into the ordinary meaning of constitutional terms has been supplemented by corpus linguistics. There is obvious value in examining large databases of historical texts to determine how a particular group of people used a particular word or phrase at a particular time.

The text of the Second Amendment protects the right to “bear Arms.” The majority and dissenting justices in District of Columbia v. Heller disagreed over how the phrase “bear Arms” was understood in 1791. Justice Scalia, writing for the majority, read the phrase broadly to include protection for the carrying of firearms apart from military service (what Justice Scalia called its “natural” meaning). Justice Stevens, writing for the dissenting justices, read the phrase narrowly to protect only the carrying of firearms in connection with military service (what the majority and dissent called its “idiomatic” meaning). Both the Scalia and Stevens opinions relied on multiple original sources to support their conclusions, but, at the time, those sources were limited in number.

Since Heller, the creation of two databases—the Corpus of Founding Era American Usage (COFEA) and the Corpus of Early Modern English (COEME)—has enabled researchers such as Dennis Baron, Neal Goldfarb, Josh Blackman, James Phillips, and Josh Jones to analyze how the phrase “bear arms” was understood during the founding era (1760-99).

These researchers generally agree that “bear arms” was used mostly in its idiomatic or military sense during this period, but not solely or exclusively so. Baron concluded that the natural use of the phrase was “almost always” in a military sense, while Goldfarb found that nearly 95 percent of all uses of “bear arms” conveyed the idiomatic sense relating serving in the military. Blackman and Philips, examining a smaller sample, found that the “overwhelming majority” of uses of were in the military context. Josh Jones, using somewhat different search and coding parameters, found that the figurative or specialized military sense of “bear arms” was used in 66 percent of relevant uses, the literal carrying sense in 21 percent, including both military and civilian contexts, and the remaining 13 percent were too ambiguous to place in either category.

Heller rejected the view that “bear Arms” in the Second Amendment exclusively means to carry arms while serving in a state-organized militia. Has Heller’s conclusion been undermined by legal corpus linguistics (LCL)? There are several points to consider in answering this question.

First, there is no question that “bear arms” was used during the founding period to describe carrying weapons in individual and civilian contexts, outside of service in an organized militia or other military unit. Here are several examples:

• William Robertson’s 1770 history of the reign of Charles the Fifth, emperor of Germany, which was published in America, refers to “women, orphans, and ecclesiastics, who could not bear arms in their own defence.”
• Timothy Cunningham’s 1771 popular English legal dictionary of the period, which was found in Jefferson’s library, gives this example of the usage of “arms”: “Servants and labourers shall use bows and arrows on Sundays, & c. and not bear other arms.”
• James Madison proposed an anti-poaching Bill for Preservation of Deer to the Virginia legislature in 1785, which had been written by Thomas Jefferson in 1779. Anyone convicted of killing deer out of season faced further punishment if, in the following year, he “shall bear a gun out of his inclosed ground, unless whilst performing military duty. The illegal gun carrier would have to return to court for “every such bearing of a gun” to post additional good-behavior bond.
• The 1795 epic poem M’Fingal by lawyer John Trumbull reads: “A soldier, according to his directions, sold an old rusty musket to a countryman for three dollars, who brought vegetables to market. This could be no crime in the market-man, who had an undoubted right to purchase, and bear arms.”
• Charles Brockden Brown’s 1799 novel, Edgar Huntly: or, Memoirs of a Sleepwalker, states, “I fervently hoped that no new exigence would occur, compelling me to use the arms that I bore in my own defence.”
• John Leacock, well-known Philadelphia businessman, patriot, and playwright, wrote the following line for the character Paramount in the patriotic drama, The Fall of British Tyranny: or, American Liberty Triumphant, which was printed in Philadelphia, Boston, and Providence: “I shall grant the Roman Catholics, who are by far the most numerous, the free exercise of their religion, with the liberty of bearing arms, so long unjustly deprived of, and disarm in due time all of the Protestants in their turn.”

Given these and other examples of “bear arms” being used outside the military or militia context, the LCL debate over the meaning of “bear arms” turns largely upon the clashing arguments that set frequency against context found in Kevin Tobia’s excellent chart in the opening blog post in this series.

Second, some LCL researchers have overclaimed that because “bear arms” was used most often in a military or militia sense, this is its meaning in the Second Amendment, and therefore Heller was wrongly decided. It is not surprising that “bear arms” was used mostly in a military context during the founding period, given the Revolutionary War and subsequent debates about a standing army and state militias. But it does not necessarily follow that the Second Amendment uses this narrow idiomatic or specialized sense, rather than a more general sense of carrying arms in either civilian or military contexts.

The use of frequency data in LCL is more complex than those who suggest it is determinative in Heller. It can show us the range of possible candidates for the ordinary meaning of the term, and perhaps even suggest a presumptive meaning if one sense is overwhelmingly predominant, but frequency data by itself is not conclusive. Frequency data must be supplemented by relevant legal context.

Third, the most relevant legal context for the ordinary meaning of “bear arms” in the Second Amendment is found in several contemporary state constitutions, as well as a proposed amendment to the federal Constitution from Pennsylvania. These founding-era sources used the phrase “bear arms” to describe the right to carry weapons for non-military purposes. They are especially significant because they occur in the context of defining the scope of constitutional rights to arms.

The Anti-Federalist minority report from the Pennsylvania constitutional ratifying convention in 1788 proposed an amendment to the Constitution protecting the people’s “right to bear arms for the defence of themselves and their own state or the United States, or for the purpose of killing game.”

Three state constitutions (Pennsylvania, Vermont, Kentucky) written during the founding period protected the people’s right to “bear arms in defense of themselves and the state.” Additionally, there were multiple complaints from citizens in Massachusetts that their state’s constitutional right to arms was too narrow because “the people have a right to keep and bear arms as well for their own as the common defense.” Six additional state constitutions written prior to 1820 (Ohio, Indiana, Mississippi, Connecticut, Alabama, Missouri) contained protections for the right of the people to “bear arms in defense of themselves and the state” or the right of every citizen to “bear arms in defense of himself and the state.” Both the proposed amendment proffered by the Pennsylvania Anti-Federalists as well as multiple state constitutional protections extended the right to “bear arms” to both civilian self-defense as well as to service in the militia.

Congress obviously was aware that the Pennsylvania Anti-Federalists and early state constitutions used “bear arms” in a sense that did not refer exclusively to service in a state militia. But did their omission of a modifying phrase signal to ordinary readers that the term “bear arms” had a narrower military meaning? That’s what Justice Stevens and the Heller dissenters believed. In his Heller dissent, Justice Stevens points out that

[h]ad the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves,” as was done in the Pennsylvania and Vermont Declarations of Rights. The unmodified use of “bear arms,” by contrast, refers most naturally to a military purpose, as evidenced by its use in literally dozens of contemporary texts.

But this fails to account for how ordinary readers would understand the meaning of “bear arms” given Congress’ deliberate decision not to modify the phrase. The fact that you don’t modify something also can indicate what it means. Congress rejected a proposal to add the narrowing modifier “for the common defence” after “the right of the people to keep and bear arms.” Since two early state constitutions protected the right to bear arms only “for the common defence” (Massachusetts) or “for the defence of the state” (North Carolina), the decision not to limit the scope of the right to an exclusive military or militia context supports the Heller majority’s broader reading of “bear arms.”

Fourth, while LCL provides one among many useful tools for determining the meaning of words or phrases as used by original speakers, it has various methodological limitations. One limitation is that legal researchers must formulate search parameters and make coding decisions that inevitably are influenced by the researcher’s own judgment, intuition, and biases.

For example, Neal Goldfarb concluded that at least 95 percent of all uses of “bear arms” between 1760 and 1799 conveyed the idiomatic sense relating serving in the military. But Goldfarb excluded from his analysis all uses of “bear arms” when the phrase appeared in the text of a proposed or ratified constitutional provision at the federal or state level protecting that right, because he believed these uses irrelevant to his analysis. When another researcher, Josh Jones, included and coded these and other uses omitted by Goldfarb, he found that “while the specialized sense of bear arms (i.e., serving in the military or engaging in collective armed conflict) appears to have been used significantly more often than the carrying sense of bear arms, the latter still appears to have been used more often than past research may have suggested.” Jones’s own research reveals that “over one-fifth of recorded uses of bear arms in COFEA employed the phrase in the carrying sense. While the literal carrying sense should still be recognized as the minority sense, it is not an all-but-nonexistent sense like Goldfarb and others suggest.”

This and other limitations with LCL methodology in the Second Amendment context suggest that other tools should not be abandoned. As Jones points out,

[b]ecause the carrying sense of bear arms was still common at the time of the Founding (and . . . it may have been even more common than this Note’s principal findings suggest), the Court may need to continue to rely on other textual and historical tools (such as the grammar cannon, states’ Second Amendment equivalents, early American firearm regulations and practices, the Second Amendment’s connection to the English Bill of Rights, etc.) to determine the original understanding and current legal scope of the Second Amendment. Corpus linguistics data are most reliable when they are harmonized with other tools of interpretation.

Corpus linguistics is a wonderful tool for constitutional interpreters, but it is not a complete tool. At this point, the verdict is still out on the probative value of LCL in understanding the original meaning of the Second Amendment.

The casebook Firearms Law and the Second Amendment: Regulation, Rights, and Policy is used in several law school classes on firearms law. It also functions as a treatise for academics, practitioners, and anyone else interested in this subject. A third edition of the casebook is scheduled to be published next year.

Five online chapters spanning 636 pages supplement the casebook’s eleven printed chapters. These online chapters recently were updated and are now available at no charge on the casebook’s website. They are co-authored by Nicholas J. Johnson, David B. Kopel, George A. Mocsary, and me.

For the Duke Center’s Scholarship Highlight interview series, Jake Charles recently spoke about the updated online chapters with George A. Mocsary, professor at Wyoming College of Law and one of the casebook’s co-authors. Jake and George talked about Chapter 14 on Comparative Law. I’d like to follow up with an overview of the remaining online chapters.

Here are the titles, a brief summary, and notable points for each chapter:

• Chapter 12–Firearms Policy and Status: Race, Gender, Age, Disability, and Sexual Orientation

This chapter examines the costs and benefits of firearms for diverse groups in American society as defined by race, gender, sexual orientation, age, disability, marijuana use, military service, and American Indian tribal law and culture. In addition to amicus briefs in which advocates set forth their views directly, the chapter includes judicial decisions, relevant statutes, and historical material. Especially relevant are the divergent views about the role of firearms and gun control in Black communities.

• Chapter 13–International Law.

This chapter covers international-law principles and documents involving self-defense and firearms control. It considers the leading international legal conventions on the right of self-defense or gun control (e.g., Universal Declaration of Human Rights, various United Nations programs and standards), major regional firearms agreements (e.g., Inter-American Convention Against the Illicit Manufacture of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials), the legal and philosophical foundations of international law and the individual and collective rights of self-defense (e.g., the writings of Grotius, Pufendorf, and other framers of classic international law), genocide, and arguments for whether and how international gun control should be implemented. One interesting section examines the extent to which international law recognizes the right of people to forcefully resist genocide and whether that right overcomes otherwise valid laws that prevent the acquisition or use of firearms.

• Chapter 14–Comparative Law.

This chapter compares and contrasts the domestic gun laws of various nations and examines the consequences of those laws. It is the subject of the interview with George A. Mocsary, so I refer you to the blog post and video for information about this chapter.

• Chapter 15–In-Depth Explanation of Firearms and Ammunition.

Knowledge of how firearms and ammunition function is essential to careful thinking about firearms law and the Second Amendment. Unfortunately, there are too many examples of policymakers, litigators, and judges getting their facts wrong about firearm operation and use. This chapter describes the components, operation, and safe handling of firearms and ammunition, explains the specific features and uses of handguns, rifles, and shotguns, examines special types of firearms and accessories, including those covered by the National Firearms Act (machine guns, bump-stocks, and silencers), and even covers nonfirearm arms such as stun guns and edged weapons. Especially useful is how the chapter connects firearm mechanics with various aspects of gun policy.

• Chapter 16–Antecedents of the Second Amendment.

The casebook examines the history of the right to arms in both the United Kingdom and the United States. Yet debates about the legitimate use of arms and legitimate forms of arms control long precede this history. This chapter provides a sampling of arguments various thinkers have offered for and against arms possession and about appropriate legal constraints on the use of arms. Many of these readings are part of the intellectual background of the Second Amendment. The chapter includes material from ancient China, Greece, and Rome, the Judeo-Christian tradition, and European political philosophy. It emphasizes various themes, including the morality of the use of force (or deadly force) in self-defense, the distribution of force between government and the people, and the benefits and dangers of militias versus standing armies.

Firearms law is both fascinating and extensive. We invite you to explore the wide range of materials in these updated online chapters.