Scholarship Highlight: New Insights on Heller and Original Public Meaning
Summarized below are two recent pieces of scholarship that seek to shed light on the original meaning of the Second Amendment using different methods—foreign-language translations of the Bill of Rights from the Founding Era, and corpus linguistics analysis of grammatically-similar phrases—and reaching opposite conclusions.
- Brandon Kinney, A Well-Outfitted Militia: German–American Translations of the Second Amendment and Original Public Meaning, 62 American Journal of Legal History 237-261 (September 2022)
This article seeks to uncover the original public meaning of the Second Amendment by scrutinizing unusual and previously unexamined sources: German-- American translations of the Bill of Rights during the Founding Era. Translations offer a unique perspective of political culture, because they served as thoughtful analysis and contextual commentary on the source text. Using six German--American translations in the Founding Era, this article argues that the public understanding of the Second Amendment during the Founding Era was one that recognized the individual right to own firearms for individual use unconnected to militia service as well as a constitutional endorsement of an armed population as the best bulwark to preserve the liberty of the national people. Though the exact text of the translations differ across publishers and states, they retain thematic and syntactic similarities that suggest a public consensus over the meaning of the text. The notion that the Second Amendment protects an individual right rather than a collective one is borne out by additional translations well into the mid-nineteenth century. Printers adjusted their translations of the amendment after the militia as a military institution had fallen into disuse but preserved or strengthened the clause protecting the individual right to arms rather than letting it ‘fall silent’.
- James Vanden Bosch, Heller (2008) and the language of the Second Amendment: Grammar, meaning, and canonical conventions, in Legal Meanings (De Gruyter Mouton 2021)
Summary (adapted from Preamble and Conclusion)
Media coverage of Professor Vanden Bosch’s work on Heller is available here.
Legal scholars use linguistic tools in their work as a matter of course, and scholars of Constitutional law regularly engage in semantic analysis, trying to determine what specific words and phrases mean in context. Historical linguistics (the study of how language changes over time) and corpus linguistics (the analysis of large bodies of text, now typically aided by computers) also have roles to play in the study of Constitutional law, and these tools prove to be particularly helpful in the study of the 2008 Supreme Court decision on the Second Amendment, District Of Columbia, et al., Petitioners v. Dick Anthony Heller (2008). One such subject of discussion in Heller is the meaning of “to bear arms” in the main clause. The other matter has to do with the opening phrase of the Second Amendment, and its grammatical and semantic relationship to the main clause.
In these two instances – the meaning of “to bear arms” and the meaning and scope of the introductory absolute phrase – the two corpora I have referred to seem to be very relevant for the discussion of the meaning of the Second Amendment. The Heller position on these two elements is put into question by the words, phrases and clauses that COFEA has made available from the very era in which the Second Amendment was written and ratified. The absolute phrase that announces the purpose of the Second Amendment retains its function of being “a permissible indicator of meaning,” and the common-sense reading of the amendment seems to support the older, traditional interpretation of this amendment, namely, that the bearing of arms referred to in the operative clause is done in support of well-regulated militias, not for hunting and self-defense.