Corpus Linguistics and HellerDavid Weisberg

Prof. Ramsey notes that Duke Law has posted essays focused on corpus linguistics (CL) and D.C. v. Heller.  Several of those essays unintentionally highlight problems that CL can generate when applied to constitutional interpretation.  This note will address one post, “The ‘Strange’ Syntax of the Second Amendment,” by professor of linguistics Kari Sullivan.  (Full disclosure: I’ve argued that both Heller and its direct descendant, McDonald v. Chicago, were wrongly decided.) 

The 2nd Amendment:

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. 

This includes what Prof. Sullivan calls a being-clause, and that grammatical construction apparently fell out of use almost one hundred years ago.  Nevertheless, applying CL methodology to being-clauses with the same basic structure as the 2nd Amendment (the being-clause precedes the main clause and has a different subject), she finds that such clauses have four possible meanings: temporal, conditional, causal (or “external causal”), and logical (or “internal causal”.)  Examples follow.

Temporal: “The morning being come…, [the] coach was brought.”  That is, after the morning had come, the coach was brought.

Conditional: “These things [atmospheric conditions] being granted what is of a like kind [condensation] will readily be so disposed too.”  That is, one predicts, with greater or lesser degrees of confidence, that, if certain things occur, other things follow.

Causal (or External Causal): “The usual passages for the waters below being obstructed, they flooded the low grounds.”  Prof. Sullivan explains: “That is, flooding occurred because the passages were obstructed.  This is an external causation because it refers to a cause and a consequence in the real world.”

Logical (or Internal Causal): “The words in the will being to Richard and the heirs of his body, the heirs were in that will only words of limitation[.]”  That is, because the will recites “to Richard and the heirs of his body,” one must conclude that “the heirs” were only words of limitation.

The 2nd Amendment’s being-clause, we are told, must belong to one of these four types.  Regarding external causation, Prof. Sullivan writes:

The external causal interpretation would mean that “the right of the people to keep and bear Arms, shall not be infringed” for the purpose of “A well regulated Militia…necessary to the security of a free State”. 

Problems immediately arise.

First, the paradigm of external causation had the form “flooding occurred because the passages were obstructed.”  Now, the phrase “for the purpose of” has been substituted for “because”.  Why?  Prof. Sullivan doesn’t explain.  Nevertheless, if one asserts that “the right of the people to keep and bear Arms, shall not be infringed” because “a well regulated Militia [is] necessary to the security of a free State,” one would be asserting a or the reason why the people have that right.  That is, the being-clause would clearly have a logical (or internal causal, not external causal) meaning.     

Another problem with Prof. Sullivan’s external causal interpretation of the 2nd Amendment is that it is  incoherent.  Incoherence is more apparent if inessential complexity is eliminated:

The right … to … bear arms, shall not be infringed for the purpose of … a … militia … necessary to … a free State.  

I am not a professional linguist, but I am a native speaker of American English.  To my understanding, the above statement is meaningless—grammatically correct word salad.

The incoherence of an external causal interpretation of the 2nd Amendment is not accidental.  Abstract concepts—e.g., “the right of the people to keep and bear Arms”—do not causally interact with the physical world.  Concepts are not something that can be the cause or effect of anything in the physical world, in the way obstructions in rivers cause floods.  Of course, real world things can cause people to think about concepts—Prof. Sullivan’s interesting paper caused me to think about Heller.  And our thoughts about concepts can cause us to act in the real world—my belief that Covid-19 is dangerous caused me to be vaccinated.  But those phenomena are entirely different from the concepts themselves, and not our thoughts about concepts, acting either as causes or effects in the physical world.  Human beings, including our mental states, are part of the physical world; abstract concepts are not.

Here is the punchline.  Prof. Sullivan reports that a relevant corpus contains 38 being-clauses of the relevant type from the relevant time period.  (She writes “37,” but I think that’s a typo, because the categories add up to 38.)  Eighteen have temporal meanings, 1 is conditional, 19 have external causal meanings, and there are zero logical or internal causals.  But the 2nd Amendment’s being-clause cannot possibly have an external causal meaning, because abstract concepts cannot cause or effect things in the physical world.  A temporal interpretation means that whenever a Militia is necessary to the security of a free State, the right of the people shall not be infringed.  So, the right might or might not be subject to infringement, depending on changing circumstances.  I personally do not believe the 2nd Amendment was ever understood to have so potentially fleeting or intermittent an application.  The conditional interpretation—if a well regulated Militia is necessary to the security of a free State, then the right of the people, etc.—is entirely too agnostic.  Why adopt the 2nd Amendment, if it’s unclear whether a Militia truly is necessary to a State’s security?

I conclude that the only acceptable interpretation of the 2nd Amendment’s being-clause—and, incidentally, the interpretation that is embraced by both Justice Scalia’s majority opinion and Justice Stevens’ dissent in Heller—is the logical or internal causal interpretation: Because a Militia is necessary to the security of a State, it was concluded that the right of the people to keep and bear Arms shall not be infringed.  If that’s right, then the interpretation which finds zero support in CL is nevertheless correct, and all the other interpretations, which together earn an aggregate CL score of 38, are incorrect.  Those who rely on CL to facilitate constitutional interpretation would do well to exercise extreme caution.