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10/31/2021

David Kopel on Corpus Linguistics in the Public Carry Case
Michael Ramsey

At Volokh Conspiracy, David Kopel: Corpus Linguistics and the Second Amendment. From the introduction:

Corpus linguistics is the scholarly technique of searching historic databases to gather information on the use of important words or phrases. In the pending U.S. Supreme Court on the Second Amendment to right to bear arms, New York State Rifle & Pistol Association v. Bruen, a pair of amicus brief purport to apply corpus linguistics to the Second Amendment. The briefs say that they prove that individuals have no right to bear arms, and that even if such a right exists, it is tiny. This post examines the claims in the briefs.

This post is co-authored by Campbell University law professor Gregory Wallace....

One of the amicus briefs is on behalf of three professors of linguistics—Dennis Baron (U. Illinois), Stefan Th. Gries (U. Cal. Santa Barbara), and Jason Merchant (U. Chicago)—and one law professor, Alison LaCroix (U. Chicago), who has written about corpus linguistics and founding era documents. It was filed by attorneys for Morrison & Foerster. The other brief is by and for Washington, D.C., attorney Neal Goldfarb. Goldfarb describes himself as "an attorney with an interest and expertise in linguistics, and in applying the insights and methodologies of linguistics to legal interpretation." His brief asks the Supreme Court to call for supplemental briefing on the corpus linguistics issues and to hold the Bruen case over to the next Term for argument on those issues. The arguments in both briefs are similar.

To be clear, we do not criticize corpus linguistics as a methodology. ... The persuasiveness of corpus linguistics claims depends on understanding words in context, considering all relevant sources, and classifying usages accurately. Some corpus linguists do so better than others.

Extensive analysis follow, leading to this conclusion:

Corpus linguistics can be a valuable tool for legal scholars. Future scholars intending to employ corpus linguistics can usefully study the New York State Rifle & Pistol Association amicus briefs as models of errors to avoid: ignoring usages that don't support an author's theory, failure to understand that a words can have multiple meanings at once, separating phrases from context that clearly shows their meaning, not considering the most precisely relevant context (here, the use of words in constitutions), and imposing twenty-first century usage (e.g., "war" is national defense but not personal defense) on earlier generations who used words differently from how modern Americans do.

RELATED:  At the National Constitution Center, a podcast debate Is There a Constitutional Right to Concealed Carry? featuring Professor Kopel and former judge J. Michael Luttig, with Jeffery Rosen moderating.  Professor Kopel comments here: Luttig versus Kopel on the right to bear arms.

ALSO RELATED, as noted earlierCorpus Linguistics and Heller by James Cleith Phillips (Chapman University, Dale E. Fowler School of Law) and Josh Blackman (South Texas College of Law Houston).

The New York Rifle & Pistol case is potentially one of the most important cases for originalist methodology since, well, Heller.  I remain uneasy, however, about the Court's ability to engage the question presented (whether the Second Amendment protects the right to carry concealed weapons in public) without also considering the question (not presented) whether the Second Amendment protects the right to carry non-concealed weapons in public.