Conservative jurists claim to focus on the text and nothing but the text as they seek to discover the original public meaning of the Second Amendment. But it’s not clear that the amendment ever had a single shared meaning, or if it did, whether that meaning is recoverable. That’s true of any text, not just legal ones. The best we can hope for when investigating an older text is to examine how it was discussed around the time it was written and to use historical sources to glean the meaning of any difficult or ambiguous words or phrases. And even so, there’s no guarantee that a reasonable reader in 1791 would interpret the Second Amendment the same way as their equally-reasonable neighbor. When the Supreme Court said in
District of Columbia v. Heller (2008) that it had determined the original public meaning of the Second Amendment, its reading, like any linguistic interpretation, involved both an examination of the text and a certain amount of guesswork.
The modern concepts of textualism and originalism that drive the search for a law’s true meaning would have seemed strange to earlier legal scholars like
Edward Saunders, who in 1571 called a statute’s words mere “verberation of the air.” Saunders taught that the significance of a law exists not in the text but “in the minds of the expositors of the words,” both the legislators who draft the statutes and judges like Saunders, who interpret them. In 1765
William Blackstone similarly observed that legal interpretation may require going beyond the text.
Still, all interpretation starts with text, and when a word or phrase in that text is problematic, judges have frequently turned to dictionaries for help. But
Learned Hand warned in 1945 not to make a fortress of the dictionary. Perhaps he was thinking of
Nix v. Hedden (1893), where the Supreme Court rejected the dictionary definition of
tomato as a fruit because ordinary people consider tomatoes vegetables. Still, dictionaries remain popular legal tools. In
Taniguchi v. Kan Pacific Saipan (2012), Justices Alito and Ginsberg cited a total of fourteen dictionaries as they backed competing interpretations of the word
interpreter in the statute in question. They even disagreed over the meaning of the same definition from two of those dictionaries.
Corpus linguistics, which some hail as better than dictionaries for legal interpretation, allows us to access and analyze large swaths of digitized text. Take this example from a case that has nothing to do with the Second Amendment. An early corpus search of the verb ‘to harbor’ played a role in
U.S. v. Costello (2012), where Costello appealed her conviction for harboring a fugitive. Opposing the appeal, the government argued that dictionaries defined harboring in the 1917 Immigration Act as ‘sheltering.’ But Judge Richard Posner wasn’t convinced. Googling
harbor confirmed his intuition that the word usually involves, not sheltering someone, but ‘hiding’ them from the authorities. A later, more-rigorous corpus search by
Stefan Th. Gries and Brian G. Slocum found that
harbor more often means ‘to shelter’ than ‘to hide.’ But in the context of the Immigration Act’s penalties for anyone who “conceals, harbors or shields from detection” an alien, ‘hiding’ seems correct. Costello made no effort to conceal her fugitive boyfriend, who lived openly in her home and went about in public both alone and in her company. Nor did she shelter him. As Posner put it, “‘Sheltering’ doesn’t seem the right word for letting your boyfriend live with you.”
Since Posner’s foray into database searches, new corpora have come online, some allowing us to search English texts going back to the fifteenth century. These new digitized historical collections have given corpus linguistics more courtroom buzz. In 2019, Judge
Amul Thapar suggested in a pension case that corpus linguistics should become part of the judge’s tool belt. And in his concurrence in
Facebook v. Duguid (2021), a case about autodialing by telemarketers, Justice Alito put in a plug for corpus linguistics. Alito challenged the court’s reliance on the judicial canons of interpretation because they are guidelines rather than categorical linguistic rules, adding, “Perhaps someday it will be possible to evaluate these canons by conducting what is called a corpus linguistics analysis, that is, an analysis of how particular combinations of words are used in a vast database of English prose.”
A search of these digitized databases permits us to better understand some key elements of the Second Amendment’s meaning, though it’s not clear that the insights of corpus analysis will change the legal landscape. Most recently, a Ninth Circuit panel asked both sides in
Jones v. Bonta, a challenge to a California gun law, if corpus linguistics could determine the original public meaning of three phrases in the Second Amendment: “a well regulated militia,” “the right of the people,” and “shall not be infringed.” Responding to the court’s question,
appellants argued that corpus linguistics is a flawed tool for legal interpretation, proving their point with a flawed corpus analysis of their own. The
appellees took a more positive view of the emerging field, yet their own database searches revealed that corpus linguistics was of “limited utility” in answering the court’s questions. The appellees did add an important caveat. Corpus analysis, while a useful tool to guide legal interpretation, is not something easily done by an untrained judge or lawyer, and is best left to specialists. Indeed, corpus data has become an important tool for professional lexicographers at all the major dictionaries.
Corpus linguistics didn’t come up during oral arguments in
Jones, and it remains to be seen whether the Ninth Circuit will incorporate the new methodology in its deliberations. But corpus data has already provided important information about one of the Second Amendment’s most problematic phrases, “to keep and bear arms.”
In his opinion in Heller, Justice Scalia argued that the plain meaning of bear arms is simply, ‘carry a weapon’:
Although [bear arms] implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization. From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia.
That claim contradicts the long-held understanding that
bear arms has always been a military term, as we see when Judge Nathan Green wrote in
Aymette v. State (1840), an early concealed-carry case in Tennessee,
A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day for forty years, and yet it would never be said of him, that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane.
Green was not alone in that opinion. A 2007 search by the historian
Saul Cornell found over 100 examples of
bear arms in founding-era texts, with ninety-six percent having a military context, corpus evidence that the
Heller majority shrugged off.
The following exchange during
oral arguments in Heller also demonstrates that
bear arms is a military idiom, not a synonym for ‘carry a gun.’ Solicitor General Paul Clement claimed that
bear arms means “to carry them outside the home.” Justice Souter asked him, “But wait a minute. You’re not saying that if somebody goes hunting deer he is bearing arms, or are you?” Clement replied, “I would say that and so would Madison and so would Jefferson.” But Souter wasn’t convinced: “In the eighteenth century, someone going out to hunt a deer would have thought of themselves as bearing arms? I mean, is that the way they talk?” Clement, who is currently challenging New York State’s gun permit requirement in
New York State Rifle and Pistol Association v. Bruen, a case that the Supreme Court will hear next term, finally conceded, no, that is not the way they talk: “I will grant you this, that ‘bear arms’ in its unmodified form is most naturally understood to have a military context.” Souter didn’t need to point out that bear arms appears in its unmodified form in the Second Amendment.
Two large digitized corpora,
COFEA, the Corpus of Founding Era American English, and
COEME, the Corpus of Early Modern English, were not available to the Heller Court. But searching them,
I found that almost every one of some 900 distinct occurrences of
bear arms before and during the founding era refers to war, soldiering, or some other form of coordinated armed action by a group rather than an individual. Only seven hits for
bear arms were either ambiguous or carried no military connotation. Other researchers have found similar results using different search parameters.
Even so,
E. Gregory Wallace has collected six founding-era examples where
bear arms appears “to describe carrying weapons in individual and civilian contexts.” A look at the full context from which these citations are drawn (see appendix) shows them all to be connected to a larger military narrative. To be sure, frequency is not the sole determinant of meaning, but the overwhelming frequency of the military sense of
bear arms cannot be ignored when we interpret the Second Amendment.
James Madison undoubtedly thought of
bear arms as military when he used the idiom both in the familiar main clause of the Second Amendment and in a second clause exempting “those scrupulous of bearing arms” from militia service. That conscientious objector clause appeared in the first four drafts of the amendment. It was dropped from the fifth version, but its presence reinforces the military nature of
bear arms. Judge Green thought
bear arms was military in 1840 when he scoffed that hunters and malefactors don’t bear arms. And
bear arms was still a military idiom in 1995, when the historian
Garry Wills wryly observed, “One does not bear arms against a rabbit.”
Keep arms, rarer than bear arms, occurs only thirty-eight times in COFEA and COEME. Twenty-five of the twenty-six relevant occurrences of keep arms refer to weapons for use in the military or the militia, and one is ambiguous. The military sense of keep arms in these databases reinforces the military connotation of bear arms in the Second Amendment.
Searching the full phrase keep and bear arms in COFEA and COEME shows that it only appears when writers quote or allude to the Second Amendment. But that doesn’t tell us what keep and bear arms means. The two sides in Heller offered competing explanations. In his dissent, Justice Stevens argued that keep and bear are practically synonymous and refer to a single right. But Justice Scalia countered that adding keep to bear arms destroys any military sense that bear arms may have had, since keep means ‘own’ or ‘possess.’ Neither argument is satisfying. It’s true that keep and bear differ in meaning. But since keep arms often invokes a military context and bear arms almost always does so, it’s reasonable to conclude that combining them into the phrase keep and bear arms reinforces the military context of the Second Amendment. In addition, a search of the corpora for the conjoint verbs keep and bear without specifying an object yields just 20 hits, all followed by arms, confirming that, in the founding era, one does not keep and bear other things, only arms.
Appellants in Jones v. Bonta also argued that a corpus search is fatally flawed because the databases “favor elite usage over common usage.” They suggest that something akin to cancel culture is at work in the corpora: “The vast majority of planters, tradesmen, and frontiersmen who used American English—to say nothing of enslaved peoples, indentured servants, or Native Americans—did not write and publish any books, pamphlets, or broadsides.” Like Justice Scalia, the appellants want us to believe that the common people in the eighteenth century would have understood that bear arms does not entail a military context. They also want us to believe that the elite American writers in the founding era were preoccupied with the recent revolution, and so any references to bear arms in their writing reflect that military history. For everybody else, bear arms simply meant ‘tote a gun’—though these “ordinary” Americans had also lived through and borne arms in the same revolution. But a search of COEME, a database which stretches from 1475 – 1800, confirms that nonmilitary uses of bear arms are rare in any sort of text, whether American or British, military, political, historical, religious, literary, philosophical, or belletristic. With almost no exceptions, bear arms evokes a military image.
Many of the books, pamphlets, and broadsides written in the founding era and collected in COFEA were read not just by “elites,” but also by members of the general public. In addition, the growing number of newspaper databases provide access to texts clearly aimed at ordinary readers, not just the moneyed and political classes, and it's reasonable to assume that the language of the papers was readily understood by the same general public that read pamphlets and broadsides. Searching for instances of bear arms in newspapers from 1700 – 1800 in four databases—newspapers.com; Readex America’s Historical Newspapers; the British Library’s britishnewspaperarchive.co.uk; and the Library of Congress’s chroniclingamerica.loc.gov (whose digitized data begins with 1777)—confirms that bear arms rarely appears outside of a clearly military context. Results for keep arms in the newspapers are more divided between military and nonmilitary contexts. In 1794, one citation attempts to distinguish keep arms, which the writer suggests is an individual right, from bear arms, which is military: “We acknowledge it a mark of Freedom to ‘keep’ arms—But to be compelled to bear them . . . is an evidence of tyranny” (“The Soldier, No. 13,” New Bedford Marine Journal, Sept. 26, 1794, pp. 1 – 2). However that distinction between keep arms and bear arms differs from what either Scalia or Stevens came up with in Heller. It seems that the meaning of the phrase keep and bear arms remains a matter of dispute.
In any case, all the corpora confirm that Heller clearly got bear arms wrong. It is true that ordinary people didn’t write as much as the framers. But there’s no proof that ordinary people in the federal period said they were bearing arms when they hunted deer, elk, buffaloes, or rabbits. Nor is there any evidence that elite writers like Madison and the members of Congress who carefully edited and revised the Second Amendment baked a non-elite, non-military sense of bear arms into the amendment as a concession to an unattested “ordinary” usage.
And here’s something else to ponder. Everytown for Gun Safety filed an amicus brief in
New York State Rifle v. Beach (now
New York State Rifle v. Bruen as it heads to the Supreme Court), which traces weapons laws from the English Statute of Northampton in 1328 through colonial, federal, and territorial laws, as well as nineteenth and early twentieth century state laws. These statutes show that England and America were never places where people carried weapons freely and routinely, particularly in urban areas. A quick read of these criminal statutes, some prohibiting open carry and others, concealed carry, shows that the verb phrases associated with the possession of banned weapons, whether long guns, pistols, swords, swords in canes, knives, Arkansas toothpicks, or metallic knuckles, are
go (about) armed, ride armed, carry arms, and
have arms. In none of these statutes are offenders said to
bear arms.
That brings us back to the question of original public meaning. To repeat: it’s not clear that any text has one single meaning that everyone would have shared. Not in the past. Not today. As
Akhil Reed Amar,
Joseph Gienapp, and others have shown, immediately after the Constitution was ratified, the framers who drafted, debated, and carefully revised its clauses, openly disagreed about the meaning of what they had just approved. And the split in the
Heller Court offers a compelling modern example of dueling public meanings: nine highly-educated jurists, who spent their entire careers dissecting legal meaning, arrived at two competing interpretations of the twenty-seven word sentence that is the Second Amendment.
To make things worse, as
Posner and others have observed, the
Heller majority, committed to text-driven originalism, boldly read into the Second Amendment ideas that it did not explicitly contain. Justice Scalia insisted that the framers “undoubtedly” were thinking of self-defense when they drafted the amendment, though self-defense does not appear in the amendment’s text or in any other part of the Constitution, its emanations, or its penumbras. On the other hand, the militia appears explicitly both in Article I and in the Second Amendment.
Corpus linguistics is an important tool, and it can direct us toward a clearer understanding of the right to keep and bear arms. But it’s not a magic bullet. Today’s Supreme Court majority may cling to the myth that bear arms has nothing to do with soldiering. After all, to paraphrase the notorious NRA slogan, words don’t make meanings, people do. But to claim that
Heller reads the Second Amendment the way it was understood in 1791 is as fatuous as insisting that “planters, tradesmen, and frontiersmen,” along with enslaved, indentured, and indigenous people in the early republic, spoke a non-elite version of English where soldiers, hunters, and criminals routinely bore arms. That’s just not how they talked. Such a claim ignores, not just the many statutes in England and America regulating who may have weapons and for what purpose, but also
those statutes disarming slaves to prevent revolts, and the fact that the southern states saw
militias as essential for controlling enslaved people. Yes, the corpus data helps us interpret the Second Amendment, but we shouldn’t need evidence from a corpus or the imagined utterances of an eighteenth-century proletariat to know that soldiers bear arms, hunters carry guns, and villains pack heat.*
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* To better illustrate how they talked, the 18th- and 19th-century equivalents of modern expressions for going armed, like heavy, packing, strapped, and tooled up, include boden, burled, fixed, and geared.
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Appendix: A close look at Gregory Wallace’s examples.
1. William Robertson’s History of Charles V (1770; rpt. 1828, p. 43) refers to “women, orphans, and ecclesiastics, who could not bear arms in their own defence.” Although that phrase suggests personal self defense, it occurs in a book about military history, on a page about knights redeploying their military skills to aid helpless civilians. Robertson describes German knights, returning from their failed crusades, forced to ply their military skills in domestic policing, “To check the insolence of overgrown oppressors; to rescue the helpless from captivity; to protect or to avenge women, orphans, and ecclesiastics who could not bear arms in their own defence; to redress wrongs, and to remove grievances, were deemed acts of the highest prowess and merit.” In this context, women, children, and the clergy were not expected to engage in military or quasi-military activities and are instead defended by a domestic military force, i.e., a militia.
2. Timothy Cunningham, in A New and Complete Law Dictionary, vol 1 (1764), s.v. armour or arms, offers this citation from the statute known as 12 Richard II, c. 6: “Servants and labourers shall use bows and arrows on Sundays, &c., and not bear other arms.” That quotation conflates two portions of the statute and is not quite accurate. The law was originally written in French, where the verb porter is used for the various senses bear, wear, and carry. The relevant portion reads,
null servant de husbandrie ou laborer ne servant de artificer ne de vitailler ne porte desore enavant baslard dagger nespee … sinon en temps de guerre pour defense du Roialme … mes eient tielx servants & laborers arkes & setes & les usent les dymenges. [emphasis added]
The English en face translation, written later than the original French, reads,
no Servant of Husbandry, or Labourer, nor Servant [or] Artificer, nor of Victualler, shall from henceforth bear any [Buckler,] Sword, nor Dagger . . . but in the Time of War for Defence of the Realm of England . . . but such Servants and Labourers shall have Bows and Arrows, and use the same the Sundays and Holydays. [emphasis added]
Though it retains its military sense today, the English verb bear was replaced by carry in many contexts by the mid-seventeenth century. Enacted in 1388, this law was a direct result of the Peasants Revolt of 1381 and the extreme labor shortage caused by the plague. Although this statute deals with personal use of weapons, like later statutes disarming at various times the Scots, the Irish, the Protestants, and the Catholics, it seeks to prevent armed revolts against the crown. But as it turned out, Richard had more to fear from his knights than from peasants and laborers: a group of nobles, supporting his rival Henry Bolingbroke, forced Richard to abdicate in 1399, then imprisoned him, and finally assassinated him in 1400.
3. Wallace cites James Madison’s anti-poaching Bill for Preservation of Deer to the Virginia legislature in 1785, a measure which had been written by
Thomas Jefferson in 1779. Anyone convicted of killing deer not on their own lands and out of season faced further punishment if, in the following year, they “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 an additional good-behavior bond.
Although the statute does cover individual use of guns for hunting, the statute notes that bearing a gun "whilst performing military duty" remains legal, suggesting the possibility that the choice of the verb bear is influenced by the military exception.
4. The 1795 epic poem
M’Fingal by 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.”
This cite is taken from a footnote to the poem, apparently added to the 1795 London edition by an anonymous editor. The anecdote in question concerns British soldiers in 1774-75 framing an unsuspecting yankee yokel, or “countryman,” by selling him an inoperable gun in order to make the Americans appear to be the aggressors and to provoke a war. The military context, overall, and the intent to portray a gullible peasant as a revolutionary soldier, suggests that the right to bear arms in this instance is related to military service.
5. Charles Brockden Brown’s 1799 novel, Edgar Huntly: or, Memoirs of a Sleepwalker, contains this passage: “I fervently hoped that no new exigence would occur, compelling me to use the arms that I bore in my own defence” (London, 1803, vol. 3, p. 21).
Although this suggests a context of personal self defense, the narrative of this gothic novel, in which Huntly falls asleep in his own bed and wakes up in a cave, is told with the protagonist describing himself throughout as a soldier going into battle, and military imagery and metaphors abound. In this larger context, bear arms is consistent with the overall military themes of the novel.
6. Finally, Wallace cites a line from a play written in by John Leacock,
The Fall of British Tyranny: or, American Liberty Triumphant: “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” (London, 1776, p. 6).
In Locklaw’s play, a mad King George III, thinly disguised as Lord Paramount, plots with Mocklaw, his aide, to overthrow Parliament by military force, provoke an American civil war, and force both England and the colonies to submit to his absolute authority. He will buy the loyalty of the peers, assemble an army to defeat the English militia, half of whom “scarce ever fired a gun in their lives, especially those of London,” and offer these inducements to turn the Irish to his side: “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 the Protestants in their turn.”
Arming the Irish, then, is part of George/Paramount’s plan to stage a military coup to topple Parliament and reassert royal power over England and its colonies. In this context, bear arms must be read not for hunting or personal self defense, but in a military sense. This is confirmed by parliamentary proposals in the 1790s—not satiric but quite serious—to arm Irish Catholics to defend Ireland and the realm from rebellion in the absence of British military forces stretched thin by the Napoleonic wars.
