Scholarship Highlight: New Scholarship on Heller and Corpus Linguistics

The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.

In a new essay posted to SSRN, Joe Buffington (a law and linguistics scholar and former professor at Albany Law School) weighs in on whether Heller was correctly decided as a linguistic matter.  The corpus debate often centers around the question of whether the amendment’s prefatory clause referencing the militia was intended to set forth an exclusive or primary objective—or simply an objective—of the operative clause.  Buffington argues that “differences between being-clauses and because-clauses suggest that the subordination in the Second Amendment is better understood as an underspecified coordination.” 

He reaches a different conclusion from scholars like Karin Sullivan, who contend that the most likely linguistic reading is that “the being-clause specifies the real-world reason for which ‘the right of the people . . . shall not be infringed’, that is, for the purpose of a militia’s necessity ‘to the security of a free State.’”  Rather, Buffington argues, the amendment is most likely an instance “where the being-clause communicates information that the writers wanted to background, maybe as a means of reassuring certain readers, perhaps so as to indicate that the being-clause is a concession, and a reason, but not necessarily the only reason, for what follows.” 

Joe Buffington, Being vs. Because: New Observations on the Syntax & Semantics of the US Constitution’s Second Amendment (2024)

Abstract:

The Second Amendment of the US Constitution is ambiguous due to its subordination of one clause to another without the use of an overt subordinating conjunction. Many scholars have argued that the subordination is more or less similar, if not identical, to what is seen in because-clauses. One such scholar, Karen Sullivan, has recently used corpus linguistics to conclude that the likeliest interpretation of the Second Amendment’s subordination when the Amendment was written was one of “external causation,” where the militia clause is understood as the real-world reason why the right-to-bear-arms clause is true. This essay responds to Sullivan’s significant work by presenting three synchronic differences between being-clauses and because-clauses that suggest that external causation may not be an optimal interpretation of the Amendment’s structure, after all. An alternative analysis, where the missing conjunction is modeled as a covert proform, is proposed, and consequences of the analysis are considered – in particular, I present a novel argument that the US Supreme Court’s controversial decision in District of Columbia v. Heller was, in essence, correct.