Stephen Halbrook has wrapped up his guest-posting at Volokh Conspiracy with two additional posts:
A Surprise Amicus Brief in the Challenge to New York's Gun Carry Ban (a sharp commentary on Judge Michael Luttig's brief in support of the state)
The Right to Bear Arms in Historical Context
From the second post:
The Boston Massacre was an important event leading up to the Revolutionary War. It also provides important evidence about the scope of the right to keep and bear arms. The Massacre was a clash between British soldiers and colonists in downtown Boston that resulted in the death of five colonists. The British soldiers were tried for murder, and they were defended by one of the most prominent and accomplished lawyers in America—future President John Adams.
A key issue was whether the soldiers acted in self-defense against the assembled colonists, many of whom were armed with clubs. In making his plea to the jury, Adams did not assert that the colonists committed an act of unlawful provocation merely by carrying arms. Instead, he conceded that "here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defence, not for offence, that distinction is material and must be attended to." 3 Adams, Legal Papers 248 (1965).
And from later on:
Opponents of an individual right to bear arms often seek to engage the debate at a more abstract level that fails sufficiently to grapple with the details of historical events. A particularly egregious example of this is the attempt by some researchers to use a "corpus linguistics" analysis to relitigate Heller and show that the Second Amendment does not protect an individual right to bear arms. These analysts run phrases like "bear arms" through databases containing a large number of Founding-era texts, categorize the hits into various senses, and then tally up the results.
There are a whole host of conceptual and practical problems with this sort of analysis, which others have explored in depth. See, for example, Mark W. Smith & Dan Peterson, Big Data Comes for Textualism: The Use and Abuse of Corpus Linguistics in Second Amendment Litigation (forthcoming Drake L. Rev. Spring 2022), as well as the amicus brief of the NRA Civil Rights Defense Fund. But one key problem with it is that an analysis that simply searches databases and counts up hits fails to engage with the contextual information necessary to conduct a meaningful inquiry into the meaning of a constitutional right. This is starkly illustrated by the fact that while the overly general term "bear arms" may be used most often in a military sense, the correct search term is "the right to bear arms," and it can only refer to an individual liberty.
Posted at 6:02 AM