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08/20/2019

Corpus Linguistics and 2nd Amendment
David Weisberg

I agree completely with Neil Goldfarb’s conclusion that Heller was wrongly decided.  (My own reasoning is set forth in a paper, “A Unique, Stand-Alone Second Amendment Implies That Both Heller and McDonald Were Wrongly Decided,” available here on SSRN.) Nevertheless, I just as strongly disagree with his interpretation, based on corpus linguistics (“CL”), of the meaning of the Second Amendment.

Mr. Goldfarb’s Supreme Court brief asserts (at p. i) that CL “provides compelling reason to believe” that the Second Amendment was originally understood to protect “the right to serve in the militia, not a right of individual self-defense.”  The brief also states: “In light of that evidence [provided by CL], it is reasonable to conclude that the right to bear arms that the Second Amendment protects is a right that doesn’t merely relate to military service, but rather consists of the right to serve in the militia.” (p. 4, italics in original.)  

Thus, it seems fair to say that, from Mr. Goldfarb’s perspective, a proper CL interpretation of the Second Amendment’s original meaning would probably be: “The right of the people to serve in the well regulated Militia of a State, shall not be infringed.” 

The CL formulation raises two questions: one obvious, and one more subtle.  The obvious question: If that is what the framers meant, why isn’t that what they wrote?  They would have used 19 words (all of which are used in the actual amendment) rather than 27, and expressed themselves much more precisely to boot.  And the prefatory clause, which (as Justice Scalia noted) is unique to the Second Amendment, is rendered redundant and superfluous.  That the actual Second Amendment is very different from the CL interpretation suggests that that interpretation is a misinterpretation.

The more subtle question: Why is there a stand-alone Second Amendment at all?  If the CL interpretation is correct, the First  Amendment could have been drafted thusly:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances; or infringing the right of the people to serve in the well regulated Militia of a State.

This formulation encompasses only 17 words, and the Bill of Rights would be condensed from ten amendments to nine.  So, why wasn’t the First Amendment framed in that way? 

The answer, in a tiny nutshell, is that the scope of “the right of the people to keep and bear arms” that is protected from federal infringement by the Second Amendment—and by “scope” I mean, e.g., whether or not the right is limited to keeping and bearing arms for service in the militia, or also includes self-defense, or also hunting, or also target practice, or etc.—is determined by each State’s law.  That is why the reference in the prefatory clause to “a free State” is important.  In contrast, the scope of each of the rights protected by the First Amendment (and also the rights protected in the Third thru Eighth Amendments) is not determined by any State’s law.  That difference makes it impossible to meld the Second into the First.

I think CL could never provide a satisfactory answer to either of the two questions I’ve highlighted.  I also believe that the key to a correct interpretation of the Second Amendment is an understanding of why it has the prefatory clause it has, and why the amendment as a whole stands alone.  That's why I think CL will never yield a correct interpretation of the Second.