Corpus Linguistics and Heller

77 Pages Posted: 27 Oct 2021

See all articles by James Cleith Phillips

James Cleith Phillips

Chapman University, The Dale E. Fowler School of Law

Josh Blackman

South Texas College of Law Houston

Date Written: October 25, 2021

Abstract

In District of Columbia v. Heller, the Supreme Court sharply divided over the meaning of the twenty-seven words in the Second Amendment. Justice Scalia wrote the majority opinion. He concluded that the Second Amendment “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” In short, an “individual” right. Justice Stevens, in his dissent, contended that the Second Amendment “is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia.” That is, a “collective” right.

Justice Scalia and Justice Stevens both made linguistic claims about four elements of the Second Amendment: “right of the people,” “keep and bear arms,” “keep arms,” and “bear arms.” Both the majority and the dissent used various textualist approaches to consider these four phrases, but their toolkit in 2008 was limited. They considered only a fairly narrow range of sources to interpret the text. Today, we can do better. In this Article, we will grade the four linguistic claims made in the Heller case using corpus linguistics.

We rely on the Corpus of Founding Era American English (“COFEA”). In 2015, one of us conceptualized and oversaw the initial development of COFEA. We performed five queries with COFEA. First, we queried right of the people. Second, we queried keep and bear arms (and synonyms). Third, we queried the word right within six words of arms. Fourth, we queried the word keep, and variants of keep, within six words of arms. Fifth, we queried the word bear, and variants of bear, within six words of arms. We used multiple coders who independently coded their results using a type of double-blind methodology.

Both the majority and the dissenting opinions erred with respect to some of their linguistic claims. Justices Scalia and Stevens should have expressed far more caution when reaching their textualist conclusions based on the narrow subset of founding-era sources they reviewed. Additionally, corpus linguistic theory reveals that there are inconsistencies in both Justice Scalia’s and Stevens’s descriptions of the Second Amendment’s original public meaning.

Suggested Citation

Phillips, James Cleith and Blackman, Josh, Corpus Linguistics and Heller (October 25, 2021). Wake Forest Law Review, Vol. 56, No. 609, 2021, Available at SSRN: https://ssrn.com/abstract=3949818

James Cleith Phillips

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

HOME PAGE: http://https://www.chapman.edu/our-faculty/james-phillips

Josh Blackman (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

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