The Mysterious Meaning of the Second Amendment

The Mysterious Meaning of the Second Amendment (Atlantic). I post this article here because it is mostly about a new academic tool, and with the foreboding foreknowledge that it will be driven off topic within a few posts (as the entrenched views of most advocates are well known). In my view, the new data demonstrates the folly of the Heller decision, but confirms my view on the topic. Unsurprisingly, the authors assert that it strengthened their views (even though that conclusion seems at odds with their own data). Those views are not necessarily contradictory, but they are definitely not consonant.

The tool is "corpus linguistics".

This tool allows researchers to search millions of documents to see how words were used during the founding era, and could help courts determine how the Constitution was understood at that time—what is known as “original public meaning.” Corpus linguistics, like any tool, is more useful in some cases than in others. The Second Amendment in particular poses distinct problems for data searches, because it has multiple clauses layered in a complicated grammatical structure.

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The article demonstrates both how this tool can be used AND misused, as the authors manage to do both. For now, I'll leave it to you, and hopefully an interesting discussion can come forth.

So basically, it could mean this or it could mean that. :lol:

I wonder if they plan to use the tool on other amendments.

NWRatCon said:

The Mysterious Meaning of the Second Amendment (Atlantic). I post this article here because it is mostly about a new academic tool, and with the foreboding foreknowledge that it will be driven off topic within a few posts (as the entrenched views of most advocates are well known). In my view, the new data demonstrates the folly of the Heller decision, but confirms my view on the topic. Unsurprisingly, the authors assert that it strengthened their views (even though that conclusion seems at odds with their own data).

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The authors conclude in favor of the majority opinion of Justice Scalia in District of Columbia v. Heller, albeit for reasons different from those expressed by Scalia. To be completely fair to them, the data isn't at odds with their interpretation:

1. They find evidence that the phrase to "keep and bear arms" would be understood as two distinct phrases "to keep arms" and "to bear arms." The justification is that in spite of a corpus of over a billion words stretching over two centuries, the phrase appear to be novel and specific to the 2nd amendment;
2. They find that the phrases "to keep arms" and "to bear arms" was used for both military and for personal uses. In both cases, you're looking at a substantial amount of instances. It would therefore be fair to assume someone in the late 18th century would understand the phrase "to keep and bear arms" as refering to both military and personal use;
3. Looking at the broader context of usage of the words "rights" and "arms," they also find that both collective and personal contexts were commonplace. Again, the same comment applies.

It's granted that the whole debate doesn't entirely hinge on the meaning of that phrase and you may disagree for other reasons. However, it's not fair to say they are ignoring evidence or misreading evidence. Misreading the evidence would be to look at what they find and state that the phrase "the right to keep and bear arms" would have been understood in the late 18th century as unequivocally meaning a collective right which only applies to military purposes. That would be cherry picking. More likely, people would have understood the sentence to mean something closer to all or most of the above (collective and individual, military and personal) and not just the single most politically convenient subset thereof. Now, you might have other reasons to think that they are wrong and, fair enough. But misusing the evidence? The evidence is mixed enough to suppose a broader rather than narrower reading of the phrase is justified. We're not talking about 95% uses going in just one direction. Besides, they themselves point out that it's not enough to resolve the debate. There is more to the Heller decision than speculations about the original meaning of 7 words.


On a sidenote, I genuinely have trouble picturing any scenario that would lend credence to the idea that the federal government could somehow reserve for itself the right to do as it sees fit with the weaponry owned by citizens. The philosophical slant of the US Constitution is deeply Lockean, entirely designed to limit the scope of the government and it was written by people who just fought a bloody war to overthrow a tyrannical government with firearms they personally owned. It doesn't strike me as likely that these people would allow their new government to have an undisputed control of firearms. Frankly, that sounds like wishful thinking, even if I am not peculiarly convinced by either side of the debate on the likely consequences of gun control on gun-related violence.

But, then again, I'm an economist, not a lawyer. I know enough about the history of political philosophy and the nuances of some of those arguments to find this odd, but I might be overlooking some details. I just want to make sure nobody suddenly accuses me of sidding with the authors on account of a personal bias. I don't have a peculiarly strong stance on any issue related to gun control. All I did was read the article and think about why the authors might not be so wrong.

Artymoon said:

So basically, it could mean this or it could mean that. :lol: I wonder if they plan to use the tool on other amendments.

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If I might add, the phrase about which they inquired could also refer to many things at once.

And it's always interesting to learn about American history. If the SCOTUS uses it as a tool to supplement their analysis, it would be nice.

TheEconomist said:

The authors conclude in favor of the majority opinion of Justice Scalia in District of Columbia v. Heller, albeit for reasons different from those expressed by Scalia. To be completely fair to them, the data isn't at odds with their interpretation:
....
But, then again, I'm an economist, not a lawyer. I know enough about the history of political philosophy and the nuances of some of those arguments to find this odd, but I might be overlooking some details. I just want to make sure nobody suddenly accuses me of sidding with the authors on account of a personal bias. I don't have a peculiarly strong stance on any issue related to gun control. All I did was read the article and think about why the authors might not be so wrong.

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As always, my friend, you restore my faith in rational discussion of the topic. I've truncated your post to address the points individually, and I'll be frank about my criticism of the OP, because it is germane to your post.

I'll begin with my bias, which is the opposite of the authors. They are acolytes of/apologists for Scalia and produced an article which demonstrates that bias in spades. I've always found Scalia to be overrated and a charlatan when it comes to academic study of the law. That's my bias.

As you posit, to be fair, their position isn't completely at odds with the data, but it is substantially so. The reason is their peculiar parsing of the phrases. This process is both deliberate, and, in my view, deceptive, because it takes the language out of context and twists its meaning to their viewpoint. As you also point out, "the phrase about which they inquired could also refer to many things at once." But to drill down a bit about what bothers me:

I start with their decision to separate the phrases "to keep" and "to bear" arms. "They find evidence that the phrase to "keep and bear arms" would be understood as two distinct phrases 'to keep arms' and 'to bear arms.'" Understood by whom? Not by the framers, certainly, as they conjoined them into a single phrase. And this is where the deception begins. They dismiss, rather cavalierly, Justice Stevens' conclusion that "the phrase keep and bear arms was a unitary term of art." Instead they determined, without elaboration, that Stevens' "linguistic intuition" was incorrect.

To be fair, they did conclude that

In roughly 90 percent of our data set, the phrase bear arms had a militia-related meaning, which strongly implies that bear arms was generally used to refer to collective military activity, not individual use.... Further, we found that bear arms often took on a military meaning without being followed by against. Thus, the word against was sufficient, but not necessary, to give the phrase bear arms a militia-related meaning. Scalia was wrong on this particular claim.

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But, their aim (I think quite clearly) was to reach the same conclusion in a different way. They did so by ignoring the overwhelming evidence of the error of both their and Scalia's interpretation to focus on a different error, by parsing out the phrase "keep arms", and asserting

The results here were somewhat inconclusive. In about 40 percent of the hits, a person would keep arms for a collective, military purpose; these documents support Justice Stevens’s reading. And roughly 30 percent of the hits reference a person who keeps arms for individual uses[.]

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And thus they concluded "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." I call BS. The weight of the evidence is against their conclusion, so they ignore that, and they go on to do that in the context of "arms" in the context of "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.

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So, even though the majority of uses were unambiguously about militias, they ignore that conclusion to declare it "ambiguous".

Of course, this entire discussion is taken out of the context of the Amendment itself, which begins with the phrase “A well regulated Militia, being necessary to the security of a free State..." Just as Justice Scalia did. That is the methodology of those who pursue “original public meaning” as a goal, to divorce the language from its context so as to misconstrue its meaning. That is the kernal of the deception.

I think Corpus linguistics can be a valuable tool. In the proper hands, it can illuminate meaning where ambiguities exist in the text. With those with a less honorable bend, though, it (like a firearm) can be uses to cause harm and to create ambiguities where none appear.

NWRatCon said:

I start with their decision to separate the phrases "to keep" and "to bear" arms. "They find evidence that the phrase to "keep and bear arms" would be understood as two distinct phrases 'to keep arms' and 'to bear arms.'" Understood by whom? Not by the framers, certainly, as they conjoined them into a single phrase. And this is where the deception begins. They dismiss, rather cavalierly, Justice Stevens' conclusion that "the phrase keep and bear arms was a unitary term of art." Instead they determined, without elaboration, that Stevens' "linguistic intuition" was incorrect.

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Let me quote the article verbatim:

The phrase keep and bear arms was a novel term. It does not appear anywhere in COEME—more than 1 billion words of British English stretching across three centuries. And prior to 1789, when the Second Amendment was introduced, the phrase was used only twice in COFEA: First in the 1780 Massachusetts Declaration of Rights, and then in a proposal for a constitutional amendment by the Virginia Ratifying Convention.

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We are looking at a string of 4 words which appears twice in one database in the 1780s, outside of the use in the Constitution a few years later, and not a single time in the much larger COEME database of British English. I would argue that this makes the phrase a novelty. Clearly, Justice Stevens was at least wrong to call this a "term of art with a fixed meaning," even if you may think as Stevens did that the phrase must nonetheless be taken as a single unit. Moreover, that the phrases "bear arms" and "keep arms" were on their own used quite often on their own. This lends some credence to the idea that it is a conjunction of two rights rather than the conjunction of two aspects of a single right. To me, it doesn't sound like such an implausible idea that you would be justified to call this deceptive. And I would not call the evidence they bring to bear on the infrequent use of the full phrase and the frequent use of the component of the phrase being merely dismissive of Justice Stevens. That's patently unfair.

NWRatCon said:

And thus they concluded "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." I call BS. The weight of the evidence is against their conclusion, so they ignore that, and they go on to do that in the context of "arms" in the context of "rights". So, even though the majority of uses were unambiguously about militias, they ignore that conclusion to declare it "ambiguous".

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Let me put it this way. There are four combinations here: military vs personal use, individual vs collective rights.

They find evidence that 90% of the use of either keeping or bearing arms involved a military context, but 10% did cover personal use. Personally, my next question would have been how many instances are repported here? If we're talking about 10, I would definitely side with you and consider their interpretation bogus. But if we're looking at maybe 100 or more, spread over many documents, I would say that the context of personal use isn't especially odd. Giving the authors the benefit of the doubt, I do not see why we would need to restrict our attention to either uses: it might well be taken to mean both. It is granted that this idea hinges on the 10% not being limited to so few documents and periods that the interpretation would be considered odd. Going in the direction of rights, 25% of cases meant an individual right and 30% meant both. So, the majority of cases referred at least in part to an individual right.

All four combinations have been seen, are plausible and it would make perfect sense if they meant most or even all of the above. So, why should we feel the need to pick a more restrictive interpretation?

NWRatCon said:

Of course, this entire discussion is taken out of the context of the Amendment itself, which begins with the phrase “A well regulated Militia, being necessary to the security of a free State..." Just as Justice Scalia did. That is the methodology of those who pursue “original public meaning” as a goal, to divorce the language from its context so as to misconstrue its meaning. That is the kernal of the deception.

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For the sake of the argument assume that the second Amendment refers to the individual right to own firearms for personal use and nothing else. How is that so much at odds with the preamble? You read the preamble and think something along the lines that it means we should be allowed to form armed forces and this is how they used to do it. Yet, nothing in being allowed to own a firearm for your own use prevents you from forming militias or manning armed forces of any sort. The preamble doesn't lend itself peculiarly to one interpretation or the other, even if it has a military overtone.

And if you want to talk about context, take a hard look at the experience of the people who wrote that Amendment. Does it really seems likely to you that these people meant to say that if the government renders militias obselete, it has an unlimited licence to take away firearms from the hands of law abiding citizens?

NWRatCon;1071466108 They are acolytes of/apologists for Scalia and produced an article which demonstrates that bias in spades. (...) This process is both deliberate said:

aim[/B] (I think quite clearly) was to reach the same conclusion in a different way. They did so by ignoring the overwhelming evidence of the error of both their and Scalia's interpretation(...).

Of course, this entire discussion is taken out of the context of the Amendment itself, which begins with the phrase “A well regulated Militia, being necessary to the security of a free State..." Just as Justice Scalia did. That is the methodology of those who pursue “original public meaning” as a goal, to divorce the language from its context so as to misconstrue its meaning. That is the kernal of the deception.

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Do you notice the extent to which this commentary contains speculations about the intentions of other people? What about the number of times something along the lines of a "political bias" is raised? Suppose I humour you for a minute: let's say that the authors are deceitful, biased and perhaps even malign. Is this a sufficient condition to dismiss their claims? No since horrible people can believe true things. Is it a necessary condition? Neither since people can make honest mistakes. It is plenty enough to look at the content of speech and to forget the author if the subject matter is the content of the speech and not the behavior of the authors.


Everyone does this from time to time, myself included. In my experience, this happens when we're being unreasonable. It's a smart strategy if you are trying to rally support, form coalitions and take action, but it's not a good way to explore the nuances of ideas because it plays on our tribal instincts.

Interesting the amount of time dedicated to "bear arms" vs "the people".

Its rather funny that an amendment signed 240 years ago with a 240 year precedence of private firearm ownership is somehow seen as vague to people.

VanceMack said:

Interesting the amount of time dedicated to "bear arms" vs "the people".

Its rather funny that an amendment signed 240 years ago with a 240 year precedence of private firearm ownership is somehow seen as vague to people.

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Hi! The reference to militias, which precedes the 'rights' statement, requires an understanding of the times. State militias were important to the politicos and certain merchants of the time. There was money to be had in provisioning them. There was patronage in providing commissions. Turning that over to a federal government was not something they [state politicians and merchants] viewed as being in their interest. They certainly didn't want the new federal government to cut them out of the lucrative lucre loop.

'Nuf said. Regards, stay safe 'n well.