James Phillips and I have published an essay at the Harvard Law Review Blog, titled Corpus Linguistics and the Second Amendment.
The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In District of Columbia v. Heller, the dissenting Justices contended that this provision “is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia.” In contrast, the majority opinion concluded that the Second Amendment “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Both the majority and dissent relied on originalist arguments, so the case turned, in large part, on how the phrases “keep and bear Arms”—or more precisely “keep . . . Arms” and “bear Arms”—were understood in 1791.
At the time Heller was decided, both of us were persuaded by Justice Scalia’s majority opinion, which concluded that the Second Amendment protects an individual right to possess a firearm, without regard to militia service. Yet the Supreme Court considered only a fairly narrow range of sources to interpret the critical phrase, “the right of the people to keep and bear arms.” Indeed, Justice Scalia admitted that his analysis was limited to the “written documents of the founding period that we have found” (emphasis added). Likewise, Justice Stevens’s dissent cited “dozens of contemporary texts” (emphasis added). Today, big data allows us to do much better.
Brigham Young University recently released a new database known as the Corpus of Founding Era American English (COFEA). It organized nearly 100,000 texts with over 140 million words from the start of the reign of King George III (1760) to the death of George Washington (1799). (Justice Thomas recently cited COFEA in his separate opinion in Carpenter v. United States.) These documents are not all legal sources. Rather, the corpus—or “body” of works—also includes letters, newspapers, sermons, books, and other materials to show how people from all walks of life used certain words in various contexts during the 18th century. Through the approach known as corpus linguistics, scholars can now analyze how specific words and phrases were understood during this critical period.
Applying corpus linguistics to the Second Amendment leads to potentially uncomfortable criticisms for both the majority and dissenting opinions in Heller. Both Justices Scalia and Stevens should have expressed more caution when reaching their textualist conclusions based on the narrow subset of founding-era sources that they reviewed. Going forward, judges and scholars should consider how corpus linguistics can be integrated into the broader field of constitutional interpretation to better understand the entire Constitution. This essay explores the principles of corpus linguistics in relation to three elements of the Second Amendment: “bear arms,” “keep . . . arms”, and “the right of the People.” This brief essay does not purport to provide a definitive resolution about the Second Amendment’s original understanding. Rather, this essay seeks to shed some light on the discrete textualist inquiries about which the majority and dissent in Heller disagreed, through the lens of corpus linguistics.
This piece will serve as an introduction for a much more thorough article in the works.