The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I recently participated in a conference on the application of legal corpus linguistics to the Second Amendment, a topic I've long wanted to make up my mind about. My tentative conclusion is that the corpus linguistics evidence does not undermine much of the Supreme Court's opinion in DC v. Heller. As part of the conference I have a blog post, Heller Survives the Corpus, at the Second Thoughts Blog, hosted by the Duke Center for Firearms Law.
Here's the intro:
District of Columbia v. Heller, meet legal corpus linguistics. Opponents of the decision are excited to have a new lever that might dislodge it. Proponents of the methodology are excited to have a great victory to prove their methodology's worth. But in my view most of this excitement is premature.
And from the analysis:
In the course of supporting [its legal] conclusions, the Court invoked at least five historical premises. These include: (1) the conclusion that the prefatory clause does not limit the scope of the operative clause; (2) the conclusion that a "right" belonging to the "people" is an individual right; (3) the conclusion that "keep arms" included having weapons in one's home; (4) the conclusion that "bear arms" does not connote participation in a structured military organization; (5) the conclusion that individual constitutional rights can be regulated largely based on historical analogs rather than public interest balancing tests.
The evidence on premise (2) ("the right of the people") appears weak. While there are examples in the corpus of a "right of the people" being used collectively, Heller's chief reason for rejecting such a reading was constitutional context: other provisions of the Constitution (viz, the First and Fourth Amendments) use the "right of the people" to refer to an individual right, so it is likely that the Second Amendment did so as well. This is a good example of the limits to legal corpus linguistic analysis. The use of a phrase in other contexts cannot do much to rebut a claim made from the context of a particular document.
The evidence on premise (3) ("keep arms") appears even weaker, with no showing that it clearly meant something else.
That leaves premise (4) ("bear arms"). Here there seems to be abundant evidence – much more evidence than one would expect from reading the Court's opinion in Heller – that most uses of the phrase in the corpus appear in a military context.
This finding might be enough to dislodge Heller's premise (4), but that is not certain, for at least two reasons:
First, the fact that a phrase usually appears in a particular context is only indirect evidence about its meaning in the context under examination. (Consider this parable.) That is especially true when the Court relies on context-specific evidence for its reading, such as Justice Scalia's argument that mixing non-idiomatic and idiomatic uses is analogous to the "grotesque" phrase "he filled and kicked the bucket."
Second, many instances in the corpus demonstrate a military context, but not all of them demonstrate a military (or military-only) meaning of the phrase. Perhaps "bear arms" meant "fight a war" or "serve in the militia." But perhaps it merely meant "carry and/or use a gun (in the way prototypically associated with soldiers)." The second definition would undermine far less of Heller than the first.
This brings us to the final upshot. If Heller was wrong, even clearly wrong, about premise (4) it does not follow that the dissent's view, or a "collective rights" view, was correct. Even a somewhat generous reading of the legal corpus linguistics evidence against Heller could still support an individual right to keep weapons, as well as an individual right to use weapons that have some military connection. This might suggest less protection for handguns and more for military rifles (or even for body armor). In other words, perhaps corpus linguistics indicates that Heller erred in denying the military flavor of the Second Amendment right without erring in concluding that it was an individual one.