Unfaithful to Textualism

75 Pages Posted: 11 Oct 2012 Last revised: 13 Oct 2012

Date Written: June 15, 2012


Linguistic analysis is applied to the Second Amendment to the U.S. Constitution. This one-sentence amendment has a syntactic structure comprising an “absolute” (a non-tensed propositional modifier of a main clause) which conditions the speech act embodied in the main clause. Because the absolute’s proposition (“A well-regulated militia is necessary to the security of a free state”) is false, the main clause speech act (prohibition of infringement of the right to keep and bear arms) is unsupported, giving rise to a hard problem: what the Amendment says it does, it doesn’t do, but being law, it does. The linguistic analysis in the majority opinion in D.C. v. Heller (554 U.S. 570 (2008)), authored by Justice Scalia, is analyzed. The analysis shows that Scalia covertly abandoned his own prominently and energetically advocated textualist program. A faithful application of textualism would have resulted in a different outcome in the case.

Keywords: Second Amendment, Heller, Scalia, textualism, originalism

Suggested Citation

Kaplan, Jeffrey P., Unfaithful to Textualism (June 15, 2012). Available at SSRN: https://ssrn.com/abstract=2160589 or http://dx.doi.org/10.2139/ssrn.2160589

Jeffrey P. Kaplan (Contact Author)

San Diego State University ( email )

San Diego, CA 92182-0763
United States

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