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Michael Showalter: Corpus Linguistics Criticisms of Heller Misuse Corpus Linguistics
Michael Ramsey

Michael Showalter (Independent) has posted Corpus Linguistics Criticisms of Heller Misuse Corpus Linguistics (SMU Law Review, forthcoming) (19 pages) on SSRN.  Here is the abstract:

A number of linguistics experts have asserted that new corpus-linguistics evidence undermines the U.S. Supreme Court’s conclusion in District of Columbia v. Heller that the Second Amendment phrase "keep and bear arms" means to possess and carry weapons. At the time of ratification, the term "bear arms" carried both an idiomatic sense meaning “to serve as a soldier” and a literal sense meaning “to carry weapons.” The Heller majority concluded that the Second Amendment uses the literal sense, partly because the idiomatic reading has the absurd implication of causing the Amendment to protect a right to serve as a soldier. In recent years, however, several commentators have concluded from corpus data that "bear arms" was used more often in the idiomatic military sense than the literal sense at the time of ratification. The commentators have argued that this undermines the Heller majority’s interpretation.

But these commentators have misused corpus linguistics. Corpus data comparing usage of the literal and idiomatic senses may be relevant if there is ambiguity as to which sense the Second Amendment uses, but most of the commentators do not even mention the Heller majority’s conclusion that there is no ambiguity because the idiomatic reading is absurd. And the Heller majority was right—traditional tools of interpretation establish that the idiomatic reading is not plausible. The commentators err by treating the corpus data as probative before establishing the existence of even a modest level of ambiguity. Compounding the problem, most of the commentators have compared uses of "bear arms" in military contexts versus nonmilitary contexts, but ambiguity can exist only with respect to distinct senses, not distinct contexts. In sum, the commentators have skipped step one (establish a degree of ambiguity) and botched step two (compare usage of the competing senses).

These multiple analytical errors highlight the need for caution when evaluating the claims of linguistics experts or examining corpus data. Amid a developing debate over the use of corpus linguistics in the law, this Essay is significant both for its Second Amendment implications and as an interpretive cautionary tale.

This strikes me as a important paper (without expressing any view on the merits) because some prominent authorities have argued in strong terms that the post-Heller development of corpus linguistics has greatly undermined Justice Scalia's textualist conclusions in Heller.  This paper takes on those arguments directly and provides an important counterpoint.