Joshua Feinzig and Joshua Zoffer: A constitutional case for gun control

Was Stevenss linguistic intuition correct? No. The phrase keep and bear arms was a novel term. It does not appear anywhere in COEMEmore 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. In short, keep and bear arms was not a term of art with a fixed meaning. Indeed, the meaning of this phrase was quite unsettled then, as it had barely been used in other governmental documents. Ultimately, a careful study of the Second Amendment would have to treat keep arms and bear arms as two separate linguistic units, and thus two separate rights.

We performed another search in COFEA, about the meaning of keep arms, looking for documents in which keep and arms (and their variants) appear within six words of each other. 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 Stevenss reading. And roughly 30 percent of the hits reference a person who keeps arms for individual uses; these documents support Justice Scalias analysis. The remainder of the hits did not support either reading.

We could not find a dominant usage for what keep arms meant at the founding. Thus, even if Scalia was wrong about the most common meaning of bear arms, he may still have been right about keep arms. 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.

Finally, it is not enough to consider keep and bear arms in a vacuum. The Second Amendments operative clause refers to the right of the people. We conducted another search in COFEA for documents that referenced 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. The remainder were ambiguous. With respect to rights, there was not a dominant sense for keeping and bearing arms. Here, too, an ordinary citizen at the time of the founding likely would have understood that the phrase arms, in the context of rights, referred to both militia-based and individual rights.

Based on these findings, we are more convinced by Scalias majority opinion than Stevenss dissent, even though they both made errors in their analysis. Furthermore, linguistic analysis formed only a small part of Scalias originalist opus. And the bulk of that historical analysis, based on the history of the common-law right to own a firearm, is undisturbed by our new findings. (We hope to publish this research, which also looked at other phrases in the Second Amendment, such as the right of the people, in an academic journal.)

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The Mysterious Meaning of the Second Amendment - The Atlantic