Other commentary about the Duke University’s CFL<\/p>\n
Duke Center for Firearms Law: Parsing the 2A to Invalidate Individual Gun Rights<\/a><\/p>\n The Duke Center for Firearms Law is\u00a0publishing a series<\/a>\u00a0of papers on corpus linguistics and the Second Amendment. Corpus linguistics is the search for and study of words and phrases in their context to discover their original public meaning.<\/p>\n Much of what I\u2019ve read so far will receive a hostile reception from TTAG readers. Nevertheless, it\u2019s useful reading so as to understand what we should expect to be up against in the courts in the future.<\/p>\n As one example, I call attention to the snippet below from Neal Goldfarb\u2019s abstruse\u00a0Regarding the Strength of the Corpus Evidence (and Noting Issues that the Evidence Doesn\u2019t Resolve)<\/a>. The gist here is the substantial body of corpus evidence that the phrase \u201cbear arms\u201d was used predominantly in a military sense, not in any civilian context such as for self-defense. Very well, I\u2019m prepared to stipulate to this evidence.<\/p>\n Nevertheless, I have a different view of the militia\u00a0prefatory clause<\/a>\u00a0and the corpus evidence that \u201ckeep and bear arms\u201d being used predominantly in a military context. I hold that the liberty to own arms kept on one\u2019s property and to carry them off that property existed in some hierarchy of concerns. Each individual might have held his own construction. A subsistence hunter would hold the purpose of hunting higher than pest control, a grain farmer the reverse.<\/p>\n In any case, the Constitution\u2019s drafters had their respective hierarchies, where I presume hunting and pest control would be relatively low on the list and the relationship of arms to the crown would have been paramount.<\/p>\n Moreover, the role of the federal Constitution was to fix the relationship of the new Constitution\u00a0vis a vis<\/em>\u00a0the states and the people. The\u00a0enumerated powers doctrine<\/a>\u00a0and the \u201cpolice power\u201d vested in the states make it clear that no one drafting, editing, and reading the Second Amendment was particularly concerned with hunting or pest control. These were state domain issues.<\/p>\n If you subscribe to my hierarchy of concerns, then I invite you to consider that the highest of these concerns would have subsumed all the subordinate concerns. That is, if we are to read the Second Amendment to guarantee the right of the people to keep and bear arms for the security of a free state, it also served to guarantee that right for all lesser purposes such as hunting, pest control, etc.<\/p>\n The\u00a0troublesome snippet<\/a>\u00a0reads as follows:<\/p>\n \u2026the state provisions are inconclusive because in each such provision, bear arms\u00a0was modified by a prepositional phrase that has no analogue in the Second Amendment:<\/em><\/p>\n bear arms\u00a0for the defence of themselves and the state<\/u><\/em><\/p>\n bear arms,\u00a0in defense of himself and the state<\/u><\/em><\/p>\n bear arms\u00a0in defense of themselves and the State<\/u><\/em><\/p>\n It seems to me that it\u2019s inappropriate to assume that the use of bear arms without any modification would have been understood in the same way as the use of the phrase as modified in the state provisions.<\/p>\n So \u2014 allegedly \u2014 my ancestral Pennsylvanian ratifiers first read Article XXI of their Commonwealth constitution:<\/p>\n \u201cThe right of the citizens to bear arms, in defense of themselves and the state, shall not be questioned\u201d<\/em><\/p>\n And then they went on to read the proposed Second Amendment to the Federal Constitution:<\/p>\n \u201c. . . the right of the People to keep and bear arms [no prepositional phrase appears here] shall not be infringed.\u201d<\/em><\/p>\n These Pennsylvanian yeomen immediately wrote to their delegates to the ratifying convention as follows:<\/p>\n \u201cIn contemplating the proposed 2A you should not understand that the use of \u2018bear arms\u2019 without any modification as guaranteeing a federal right to self defense.\u201d<\/em><\/p>\n Does this contrived, purely hypothetical, original public understanding square with common sense?<\/p>\n The typical yeoman\u2019s daily life included pest control, hunting, marksmanship development and demonstration, along with regular occasion to contemplate confrontation. Nevertheless, his exclusive concern, reading the proposed Second Amendment, was to secure his rare exercise of a public militia duty. His right was \u2014 exclusively \u2014 to serve in the militia.<\/p>\n He construed no right to any private use of weapons whatsoever. It would never have occurred to him to implicitly \u201cread into\u201d the unqualified \u201cright to keep and bear arms\u201d at least \u2018for self defense\u2019 or at most \u2018for self defense, hunting and all other peaceable and lawful purposes\u2019?<\/p>\n Much of the debate over ratifying the Constitution surrounded the sufficiency of the doctrine of \u201cenumerated powers\u201d counterimposed with that of \u201cinnumerable rights.\u201d The Anti-Federalists insisted that these doctrines \u2014 which the Federalists accepted without question \u2014 must be guarded with a Bill of Rights which would enshrine in parchment and ink at least some enumerated rights.<\/p>\n The right to keep and bear arms made the cut. It was among those Madison construed as clouded by\u00a0not the slightest<\/em>\u00a0controversy.<\/p>\n Yet\u00a0author Neal Goldfarb\u2019s<\/a>\u00a0linguistic analysis concludes that . . .<\/p>\n In fact, much if not all existing Second Amendment scholarship is due for reexamination in light of the corpus evidence. To be more specific, what I think needs to be reexamined is any scholarship that interpreted\u00a0bear arms\u00a0as meaning \u2018carry weapons\u2019 (whether or not such carrying was thought to be associated with militia service). And that, in turn, probably encompasses a large percentage of Second Amendment scholarship\u2014on both sides of the issue.<\/em><\/p>\n Of course, the necessary adjustments will pose a bigger problem for gun-rights advocates than for their opponents.<\/em><\/p>\n Of course.<\/p>\n Looking back nearly 270 years, are we to believe that the common public understanding of the yeomen ratifier was that his personal right to weapons was secured only to the extent sufficient to enable him to perform his public duty of militia service? That he had\u00a0no intention<\/em>\u00a0of guaranteeing to himself any individual right to weapons useful to him in his private life?<\/strong><\/p>\n We must be on-guard against those in the corpus linguistics \u201cprofession\u201d who are want to use this technique to perform these sleights of hand, especially those as transparent as this one.<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" Other commentary about the Duke University’s CFL Duke Center for Firearms Law: Parsing the 2A to Invalidate Individual Gun Rights The Duke Center for Firearms Law is\u00a0publishing a series\u00a0of papers on corpus linguistics and the Second Amendment. Corpus linguistics is the search for and study of words and phrases in their context to discover their … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8],"tags":[],"class_list":["post-69892","post","type-post","status-publish","format-standard","hentry","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/69892","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=69892"}],"version-history":[{"count":2,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/69892\/revisions"}],"predecessor-version":[{"id":69895,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/69892\/revisions\/69895"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=69892"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=69892"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=69892"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}