In the past few weeks, there’s been a few new pieces of interesting firearms law scholarship out. One focuses on the challenge to Heller from the corpus linguistics data unavailable at the time of the decision. The other argues that the historical record supports New York’s law under review in Bruen.
From the Abstract:
In District of Columbia v. Heller, the Supreme Court sharply divided over the meaning of the twenty-seven words in the Second Amendment. Justice Scalia wrote the majority opinion. He 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.” In short, an “individual” right. Justice Stevens, in his dissent, contended that the Second Amendment “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.” That is, a “collective” right.
Justice Scalia and Justice Stevens both made linguistic claims about four elements of the Second Amendment: “right of the people,” “keep and bear arms,” “keep arms,” and “bear arms.” Both the majority and the dissent used various textualist approaches to consider these four phrases, but their toolkit in 2008 was limited. They considered only a fairly narrow range of sources to interpret the text. Today, we can do better. In this Article, we will grade the four linguistic claims made in the Heller case using corpus linguistics.
We rely on the Corpus of Founding Era American English (“COFEA”). In 2015, one of us conceptualized and oversaw the initial development of COFEA. We performed five queries with COFEA. First, we queried right of the people. Second, we queried keep and bear arms (and synonyms). Third, we queried the word right within six words of arms. Fourth, we queried the word keep, and variants of keep, within six words of arms. Fifth, we queried the word bear, and variants of bear, within six words of arms. We used multiple coders who independently coded their results using a type of double-blind methodology.
Both the majority and the dissenting opinions erred with respect to some of their linguistic claims. Justices Scalia and Stevens should have expressed far more caution when reaching their textualist conclusions based on the narrow subset of founding-era sources they reviewed. Additionally, corpus linguistic theory reveals that there are inconsistencies in both Justice Scalia’s and Stevens’s descriptions of the Second Amendment’s original public meaning.
From the Introduction (footnotes omitted):
…There is good reason for concern that the Court in Bruen could place these and other demonstrably effective policy measures at risk. Now, three Trump nominees join with three Justices from the 5-4 majority in Heller. Do the math.
But the gun lobby should not start shooting off their celebratory gunfire just yet. Heller, and the historical traditions on which it relies, support upholding New York’s law, and other longstanding gun laws. And Heller, intentionally or not, tracked what many Americans believe–that they have some right to firearms, but restrictions are generally allowed. Indeed, more sweeping conceptions of the Second Amendment are at odds with most Americans’ views. Limiting Heller to its narrow holding might therefore hit the political sweet spot.
This Article argues that preserving Americans’ authority to enact strong gun laws is consistent with Heller and longstanding tradition. And Heller’s historical and doctrinal shortcomings make it far too shaky a foundation to expand upon.