NYRPA v Bruen Friends of Court Briefs, the Battle for Words and their Meanings

There is a childhood playground refrain ”sticks and stones may break my bones but words will never hurt me!”.  This simple high-minded notion is given the lie by the Second Amendment, whose 27 words are directly responsible for thousands of deaths each year in our great country.

A battle of words is being played out via the various arguments deployed among the friends of the court briefs before the Supreme Court in NYRPA v Bruen; some seem frivolous, others more fundamental.  Nothing is more fundamental than the arguments about words and their meanings and one would think that so-called Constitutional textualists and originalists would leap at the chance to have authoritative linguistics analysis brought to bear on such an important and costly to society issue.

Let’s start with the basics, the 27 words of the 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.”

Simple words, reflecting substantial Founding Father discussions and debate and the historical context of those discussions and debate.

But that was then and this is now; apolitical historical scholarship has sought to remove the dust of history to gain clearer insight to meanings and political intentions.  However, for some, beginning in the late 1970s, there has been a concerted effort to rewrite that history to achieve self-serving political and societal objectives.

And now we have the debate over NYRPA v Bruen; enter the historical experts of “corpus linguistics” analysis. 

Three noted professors of Linguistics and one professor of Law and Legal History offer what they assert to be relevant and compelling research.  To wit, their brief asserts:

“Overwhelming historical evidence about the meaning of the Second Amendment’s text to ordinary Founding-era voters contradicts that claim (of the NYRPA petitioners). That evidence comes from recent findings in the field of corpus linguistics—none of which existed when this Court decided Heller and McDonald more than a decade ago. Corpus linguistics is an empirical approach to researching the use and meaning of language by surveying large collections of written or spoken texts, known as a corpus (singular) or corpora (plural). Recently, historians have assembled several voluminous new corpora containing American and English historical sources, which have allowed researchers for the first time to search for specific terms and phrases in hundreds of thousands of Founding-era texts. Using this new technology, corpus linguistics researchers have unearthed a wealth of new evidence demonstrating that the phrase “keep and bear arms” provides no support for any broad, unfettered right to carry arms.”

None other than the NRA Civil Rights Defense Fund suits up to challenge, indeed attack, this line of historical analysis.  Their counter-text:

“In recent years, a few scholars targeting the Second Amendment have declared the “correctness” of Heller to be “in grave doubt.” Their claim is rooted in “corpus linguistics,” which is a methodology using large databases to study language use. Corpus linguistics “is based on an assumption” that “how words are used” in these databases “determines what they mean.” Applying an extreme version of that assumption to the Second Amendment, these scholars conclude that Heller was wrong because “keep arms” and “bear arms” overwhelmingly appear in military contexts in Founding-era linguistics databases. They argue that this newly discovered “textual evidence” is “powerful evidence that Heller was mistaken about the Second Amendment’s original meaning.” And they conclude that the Second Amendment can refer only to a collective right for military service (not an individual right held by “the people” more broadly).

This brief challenges those findings and the use of corpus linguistics more broadly for the Bill of Rights guarantees. The Bill of Rights is unlike a federal statute or even the structural provisions of our Constitution. It is an acknowledgment of a pre-existing set of fundamental rights that “the people” did not surrender to their new government. See Part II, infra. Understanding their full scope requires “carry[ing] ourselves back to the time when the Constitution was adopted,” aided by the tools of history and tradition, in addition to the constitutional text. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 372 (1995) (Scalia, J., dissenting) (quoting T. Jefferson, Letter to William Johnson (June 12, 1823), in 15 Writings of Thomas Jefferson 439, 449 (A. Lipscomb ed. 1904)). These fundamental rights cannot be reduced to a few words of text run through a database.

Corpus linguistics could well be a useful starting point for that historical analysis (though it has particular drawbacks for the Second Amendment, infra). But it is hardly the only starting point. And no corpus linguistics findings should ever be considered the dispositive end point in interpreting “the right of the people” that was and remains theirs.”

Some might argue that a disinterested big data analysis cannot be determinate on such a sophisticated political issue, particularly if it undercuts one’s position or point of view. 

But there is much to be said for such an analysis.  It is interesting that the NRA CRDF feels a need to diminish the source material, that is the information sources of the colonial era “elite”, namely the official texts and newspaper writings of the time.  In most cases, the Founding Fathers (educated, propertied, wealthy, often slave owners and so on) are touted by the gun lobby as being cosmic in their political thinking on behalf of the people, including with respect to the Second Amendment. 

But in this case, analyzing the known words on the topic somehow leaves out the ordinary people whose views and thinking on the issue were not captured in print and thus are lost to history.  Ergo for the CRDF, the input of such “corpus linguistics” should be dismissed as interesting but not compelling or relevant.

To this writer, things are perhaps simpler.  Let’s look at the 27 words of the Amendment, recognize what they said and meant at the time, but, equally important, read them for their meaning today in 2022. 

If one does that, it is clear from the outset that the Second Amendment has lost its relevance to 21st century America, because the opening 13 words of the Amendment (“a well organized militia, being necessary to the security of a free State”) make no sense and their point is certainly irrelevant to the United States of today, no matter how hard the “shall not be infringed” crowd tries to assert otherwise. 

Indeed, it is possible that Justice Scalia’s glib dismissal of the prefatory clause was made because he recognized the difficulty the clause posed for sustaining the operative phrase “shall not be infringed”.  If one can’t get logically to that operative phrase, the phrase ceases to be valid or “operable” and there is no “right” to be “infringed”.

Let’s hope that the Supreme Court justices will accept the insight that “corpus linguistics” brings to the issue into their discussion and debate on NYRPA v Bruen.

And let’s hope that the Court will reject both the tenuous Scalia dismissal of the Amendment’s prefatory clause in Heller as well as the current unconvincing challenge to the detailed brief of the four professors, and rule on the basis of valid history, reasoned law, and the interests and needs of 21st century USA, a country corroded by tragic and costly gun violence. 

One would think that the much bruited hype of the Constitutional textualists and the originalists for whom text is everything would mean that the justices would welcome authoritative linguistics analysis, however inconvenient it might be for their own political predilections and some supporters.