On the Panorama blog Alison L. LaCroix just shared her own findings in an essay headed “Historical Semantics and the Meaning of the Second Amendment.” Summarizing work she’s down with Jason Merchant of the University of Chicago’s linguistics department, LaCroix writes:
Much of originalism’s appeal lies in its reliance on a specific type of historical authority, and in the fact that it portrays historical meaning as an objective fact capable of being ascertained by a non-specialist reader. According to originalism’s “fixed-meaning canon” as articulated by Justice [Antonin] Scalia and Bryan A. Garner, “Words must be given the meaning they had when the text was adopted.” The words of the Constitution are, for the most part, recognizable to a modern speaker of English. The canon therefore rests on two premises: first, that there was a single meaning of the words at the time the text was adopted (for the Second Amendment, 1791); second, that this meaning is accessible to modern readers.Which fits perfectly with what the Second Amendment states as the right that it preserves: “the right of the people to keep and bear Arms.”
Originalism’s version of a historical approach stands in stark contrast to the rigorous empirical research that Chief Justice [John] Roberts dismissed as “sociological gobbledygook” in last term’s partisan gerrymandering case, Gill v. Whitford.[1] Any informed modern speaker of English can read an old text and determine what it means, the theory implies. Moreover, the theory relies on a tool that most historians, as well as linguists, treat with caution: the dictionary. In particular, the justices tend to reach for Samuel Johnson’s Dictionary of the English Language, first published in 1755. . . .
In our work, we have asked two questions: (1) Does the subject of “bear arms” always have to denote a collectivity? (2) Does the subject always have to be plural?
Using the Google Books corpus, we searched a range of published materials dating from the period between 1760 and 1795 for the phrase “bear arms.” We then classified by hand each of the 181 texts that our search produced according to the following categories: the use or sense in which the phrase “bear arms” was employed (collective, individual, or undeterminable), and the type of subject that accompanied the phrase (plural, singular, or undeterminable). A last category was for heraldic uses. . . .
According to our research, then, in 67.4 percent of the instances in which the phrase “bear arms” was used in books published between 1760 and 1795, the phrase was being employed in a collective sense. (The results for newspapers are even more dramatic.) For most ordinary citizens in the founding generation, then, the phrase “bear arms” referred to an activity undertaken by groups of people, not only by individuals.
ReplyDeleteHow useful in this debate is the original English Bill of Rights, 1688, which the framers of the US constitution will have known and possibly discussed?
"Subjects’ Arms. That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law."
See: https://www.legislation.gov.uk/aep/WillandMarSess2/1/2/introduction
I appreciate the research and analysis that you have devoted to this subject. There are many people (if not most) who will stand by their hopes and beliefs as to what the 2nd Amendment means despite any mountain of evidence that is presented to the contrary. I can certainly understand that. I am a strong supporter of the 2nd Amendment and believe that the right of self defense, using any means available to me, whether purchased or crafted by my own hands, is a natural right that is not to be infringed by any individual or collection of individuals. That being said, I also believe that the 2nd Amendment was written for the express purpose of limiting the newly formed federal government from infringing on that right. The 2nd Amendment has no authority over what the states may or may not do in regards to the infringement of our right to bear arms. That battle is left to be fought between the states and their citizens. One of the beautiful things about living in the United States is, if the state you live in is not compatible with your values and your way of life, you're free to try and find another one to live in which is.
ReplyDeleteI think the English Bill of Rights was crucially important to the Founders’ understanding of a proper national constitution and traditional rights. When Americans sought a “Bill of Rights” in 1788 and the following years, they were referring to that precedent.
ReplyDeleteHowever, referring to the 1688 language raises as many questions as it answers. Does “Arms for their Defense” mean collective self-defense or individual self-defense? Since the language doesn't mention hunting, and that was in fact restricted in large parts of Britain, does that precedent mean the use of firearms to obtain food or simply for recreation isn’t covered? What limitations does “suitable to their Conditions and as allowed by Law” encompass? And if firearms ownership is a human right, what does a religious restriction mean for this precedent?
Originally the Amendments we Americans came to call our Bill of Rights did only operate on the federal government, and the Second was explicitly keeping that level of government from limiting an institution that had traditionally operated on the state level.
ReplyDeleteHowever, subsequent Amendments and Supreme Court cases have extended the Bill of Rights to cover the states as well. We therefore enjoy freedom of speech regardless of both national and state laws, and so on. Is the Second Amendment an exception to that rule? Given how historically state governments have been more oppressive of individual rights, I'd prefer to see wider application and enforcement of the Bill of Rights.