Amicus Curiae Brief — New York State Rifle & Pistol Association, Inc., et al., Petitioners v. Kevin P. Bruen, in His Official Capacity as Superintendent of New York State Police, et al.

No. 20-843

In the Supreme Court of the United States

__________

NEW YORK STATE RIFLE &

PISTOL ASSOCIATION, INC. et al.,

Petitioners,

v.

KEVIN P. BRUEN, IN HIS OFFICIAL CAPACITY AS

SUPERINTENDENT OF NEW YORK STATE POLICE, et al.,

Respondents.

__________

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

__________

Brief of Neal Goldfarb

as Amicus Curiae

in Support of Respondents

__________

September 14, 2021

Neal Goldfarb

1301 Fairmont St., N.W.

Washington, D.C. 20009

(202) 262-7886

goldfarbneal@gmail.com

Counsel for Amicus Curiae

Contents

Table of Authorities ..................................................... iii

Interest of Amicus.......................................................... 1

Introduction and Summary of Argument ................... 2

Argument ........................................................................ 5

I. The corpus data undermines Heller’s

interpretation of the Second Amendment. ............. 5

A. The data shows Heller to have been mistaken

about founding-era usage. .................................. 5

1. bear and arms ................................................ 5

2. bear arms ....................................................... 8

3. keep arms ....................................................... 9

4. the right of the people .................................. 11

5. the right of the people to…bear arms .......... 16

6. Other issues ................................................. 17

B. In light of the corpus data (and the analytical framework in Heller) the Court’s interpretation of the Second Amendment is

untenable. .......................................................... 18

II. The NRA Fund’s criticism of corpus linguistics

as an interpretive tool is unfounded. .................... 20

A. Frequency analysis is an appropriate methodology for legal interpretation generally. ...... 21

ii

B. Frequency analysis is also appropriate in

the context of Heller and the Second Amendment ................................................................... 27

Conclusion .................................................................... 32

iii

Table of Authorities

Cases

Asgrow Seed Co. v. Winterboer,

513 U.S. 179 (1995)................................................. 22

BP Am. Prod. Co. v. Burton,

549 U.S. 84 (2006)................................................... 22

Deal v. United States,

508 U.S. 129 (1993)................................................. 22

District of Columbia v. Heller,

554 U.S. 570 (2008)......................................... passim

FDIC v. Meyer,

510 U.S. 471 (1994)...........................................22, 28

FTC v. Sun Oil Company,

371 U.S. 505, 516 (1963) ........................................ 22

Gibbons v. Ogden,

22 U.S. 1 (1824) ....................................................... 28

Lopez v. Gonzalez,

549 U.S. 47 (2006)................................................... 25

Lorenzo v. SEC,

139 S. Ct. 1094 (2019) ............................................ 22

Lumbra v. United States,

290 U.S. 551 (1934)................................................. 25

Mohamad v. Palestinian Auth.,

566 U.S. 449 (2012)................................................. 22

Mallard v. U.S. Dist. Court for S. Dist. of Iowa,

490 U.S. 296 (1989)...........................................22, 28

Ogden v. Saunders,

25 U.S. 213 (1827)................................................... 29

iv

S.D. Warren Co. v. Maine Bd.,

547 U.S. 370 (2006)................................................. 28

Smith v. United States,

508 U.S. 223 (1993)................................................. 21

State v. Misch,

2021 Vt. 10 .............................................................. 14

United States v. Bestfoods,

524 U.S. 51 (1998).............................................22, 28

Watson v. United States,

552 U.S. 74 (2007)................................................... 25

Wisconsin Cent. Ltd. v. United States,

138 S. Ct. 2067 (2018) ......................................24, 25

Constitutional Provisions

U.S. Const. amend. II ........................................... passim

Ala. Const., Art. I, § 23 (1819) .................................... 15

Conn. Const., Art. First, § 17 (1818) .......................... 15

Ind. Const., Art. First, § 20 (1816).............................. 13

Ky. Const., Art. XII, § 23 (1792) .................................. 15

Mass. Const. Pt. First, Art. XVII ................................ 13

Me. Const., Art. I, § 16 (1819) ..................................... 15

Miss. Const., Art. I, § 23 .............................................. 15

Mo. Const., Art. XII, § 3 (1820) ................................... 13

N.C. Decl. of Rights § XVII .......................................... 13

Ohio Const., Art. VIII, § 20 (1802) ............................. 13

Pa. Decl. of Rights § XII .............................................. 13

Tenn. Const., Art. XI, § 26 (1796) ............................... 15

v

Vt. Decl. of Rights, ch. 1, Art. XII ............................... 13

Corpus data analyses

Neal Goldfarb, COFEA & COEME: bear arms &

carry arms (rev. Sept. 12, 2021), bit.ly/Goldfarb

2AmBearArmsCarryArms ..................................... 31

Neal Goldfarb, COFEA & COEME: bear, carry collocate lists (Dec. 16, 2018), bit.ly/BearCarry_

collocates ................................................................... 6

Neal Goldfarb, COFEA & COEME: bear, carry concordance data (Dec. 16, 2018), bit.ly/Bear

Carry_concordances ................................................. 6

Neal Goldfarb, COFEA & COEME: keep arms

(Sept. 12, 2021), bit.ly/Goldfarb2dAmKeep

Arms ........................................................................ 10

Neal Goldfarb, COFEA & COEME (1760-1799)

right - citizens, freemen (Sept. 12, 2021),

bit.ly/2Am_RightCitizensFreemen ........................ 15

Neal Goldfarb, COFEA & COEME: right of the

people, the people have a right, and the people's

right (April 29, 2019), Goldfarb2dAmRtPeople

...........................................................................11, 13

Neal Goldfarb, COFEA: carry guns, carry weapons,

etc. (Sept, 12, 2021), bit.ly/CarryGunsWeapons

_etc........................................................................... 31

Neal Goldfarb, COFEA: keep guns (Sept. 12,

2021), bit.ly/Goldfarb2dAmKeepGuns ............11, 23

vi

Other Authorities

American Heritage Dictionary of the English

Language (4th ed. 2006) ........................................ 22

Randy E. Barnett, Was the Right to Keep and Bear

Arms Conditioned on Service in an Organized

Militia?, 83 Tex. L. Rev. 237 (2004) ...................... 21

Dennis Baron, Antonin Scalia was wrong about the

meaning of ‘bear arms,’ Washington Post (May

21, 2018), tinyurl.com/Baron2AmWaPo..........3, 4, 8

Dennis Baron, Corpus Evidence Illuminates the

Meaning of Bear Arms, 46 Hastings Const.

Law. Q. 509 (2019) ......................................3, 4, 8, 27

Josh Blackman & James C. Phillips, Corpus Linguistics and the Second Amendment, Harv. L.

Rev. Blog (Aug. 7, 2018), bit.ly/Blackman

PhillipsHLRBlog ..............................................3, 4, 8

Patrick J. Charles, Armed in America: A History of

Gun Rights from Colonial Militias to Concealed

Carry (2018) ............................................................ 32

Patrick J. Charles, Historicism, Originalism and

the Constitution: The Use and Abuse of the Past

in American Jurisprudence (2014)........................ 32

Philip Durkin, Borrowed Words: A History of

Loanwords in English (2014) .................................. 7

Neal Goldfarb, A Lawyer’s Introduction to Meaning

in the Framework of Corpus Linguistics,

2017 BYU L. Rev. 1359 (2018) ............................... 23

Neal Goldfarb, A (Mostly Corpus-Based) Reexamination of D.C. v. Heller and the Second Amendment

(2019), bit.ly/Goldfarb2dAmAnalysis ............ passim

vii

Neal Goldfarb, Corpora and the Second Amendment:

“bear arms” (part 1), plus a look at “the people,”

LAWnLinguistics (April 29, 2019), bit.ly/Bear

Arms1LnL ............................................................. 3-4

Neal Goldfarb, Corpora and the Second Amendment:

“bear arms” (part 2) (April 30, 2019),

bit.ly/BearArms2LnL. .............................................. 4

Neal Goldfarb, The Use of Corpus Linguistics

in Legal Interpretation, 7 Ann. Rev. Ling. 473

(2020), available at bit.ly/GoldfarbAnnRev

Ling..............................................................23, 24, 25

Neal Goldfarb, Varieties of Ordinary Meaning:

Comments on Kevin P. Tobia, “Testing Ordinary

Meaning,” (2020), bit.ly/VarietiesOrdinary

Meaning.............................................................24, 25

Brief of Neal Goldfarb as Amicus Curiae in

Support of Respondents, Folajtar v. Garland,

No. 20-812 (U.S. filed March 12, 2021), cert.

denied, April 19, (2021) .......................................... 18

Brief of Neal Goldfarb as Amicus Curiae, New

York State Rifle & Pistol Assn. v. Corlett,

No. 20-843 (U.S. filed Feb. 12, 2021), cert.

granted sub. nom. New York State Rifle &

Pistol Assn. v. Bruen (April 26, 2021) .........2, 21, 32

Stefan Th. Gries & Brian G. Slocum, Ordinary

Meaning and Corpus Linguistics, 2017 BYU L.

Rev. 1417 (2018) ..................................................... 25

Carissa Byrne Hessick, Corpus Linguistics and the

Criminal Law, 2017 B.Y.U. L. Rev. 1503 (2018) ... 25

viii

Josh Jones, Comment, The "Weaponization" of

Corpus Linguistics: Testing Heller's Linguistic

Claims, 34 BYU J. Pub. L. 135 (2019) ................ 8, 9

Nathan Kozuskanich, Pennsylvania, the Militia,

and the Second Amendment, 133 Penn. Mag. of

Hist. & Biog. 119 (2009) ......................................... 15

Thomas R. Lee & Stephen C. Mouritsen, Judging

Ordinary Meaning, 127 Yale L. J. 788 (2018) ....... 23

New Oxford American Dictionary (2d ed. 2005) ........ 22

Plaintiffs-Appellants’ Supp. Br., Jones v. Bonta,

No. 20-56174 (9th Cir. filed April 23, 2021)...... 5, 20

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) .............. 12

Lois G. Schwoerer, English and American Gun

Rights, in Jennifer Tucker et al., eds., A Right to

Bear Arms?: The Contested Role of History in

Contemporary Debates on the Second Amendment (2019) ............................................................. 32

Mark W. Smith & Dan M. Peterson, Big Data

Comes for Textualism: The Use and Abuse of

Corpus Linguistics in Second Amendment

Litigation (July 14, 2021), bit.ly/2UQDpfz ........... 25

Lawrence M. Solan & Tammy Gales, Corpus

Linguistics as a Tool in Legal Interpretation,

2017 BYU L. Rev. 1311 (2018) ............................... 26

1 Joseph Story, Commentaries on the Constitution

of the United States (2d ed. 1858) .......................... 12

ix

Kevin M. Sweeney, Firearms, the Militia, and the

Second Amendment, in The Second Amendment

on Trial: Critical Essays on District of Columbia

v. Heller (Saul Cornell & Nathan Kozuskanich,

eds. 2013) ................................................................ 10

Kevin Tobia, Testing Ordinary Meaning, 134 Harv.

L. Rev. 726 (2020) ................................................... 24

Robert VerBruggen, Gun Groups Take Concealed

Carry to the Supreme Court, National Review

Online (Dec. 18, 2020), bit.ly/VerBruggen2Am

Carry .................................................................... 5, 20

E. Gregory Wallace, Legal Corpus Linguistics and the

Meaning of “Bear Arms,” Second Thoughts Blog

(July 16, 2021), bit.ly/WallaceSecondThoughts

............................................................................. 5, 20

Interest of Amicus1

Amicus Neal Goldfarb is an attorney with an interest and expertise in linguistics, and in applying the

insights and methodologies of linguistics to legal interpretation.

Amicus’s interest in this case stems from his having conducted an in-depth textual analysis of the Second Amendment, based primarily on corpus data regarding 18th-century usage.2 That data, which is much

more extensive than what the Court considered in District of Columbia v. Heller, 554 U.S. 570 (2008), shows

Heller to have been mistaken about the Second Amendment’s original meaning.

Amicus submits this brief in order (1) to inform

the Court of his analysis, and (2) to urge the Court to

call for supplemental briefing on the issues his analysis

raises and to hold the case over to next Term for argument on those issues. In addition, the brief responds to

1. All parties have consented in writing to the filing of this brief.

No part of this brief was authored by any party’s counsel.

Nobody other than amicus contributed any money intended

to fund the brief’s preparation or submission.

This brief follows two typographic conventions generally

followed in linguistics. (a) Italics signal that a word or phrase

is being used to refer to itself as an expression. E.g. “The word

language has eight letters.” (b) ‘Single quotation marks’ are

used to enclose statements of the meaning of a word or phrase.

E.g., “Closed means ‘not open.’”

2. Neal Goldfarb, A (Mostly Corpus-Based) Reexamination of

D.C. v. Heller and the Second Amendment (2019) (“Goldfarb

Analysis”), bit.ly/Goldfarb2dAmAnalysis.

2

criticism of corpus linguistics in the amicus brief filed

by the NRA Civil Rights Defense Fund.

Introduction and

Summary of Argument

In challenging New York’s restrictions on publicly

carrying firearms, Petitioners frame their argument in

terms of “text, history, and tradition.” (Pet. Br. 2, 3, 22,

24, 40, 48.) They understandably take it for granted

that “text” refers to the Second Amendment’s text as

interpreted in Heller, that “history” refers to history

as understood in light of the interpretation in Heller,

and that “tradition” refers to those traditions that are

relevant given that interpretation.

But textual evidence not before the Court in Heller shows that Heller was mistaken about the Second

Amendment’s original meaning. That evidence derives

from corpus linguistics, a methodology that has been

endorsed by originalist judges and scholars, and has

been relied on by two Justices of this Court.3 The

corpus data that will be discussed here is from two corpora compiled by the BYU Law School for the purpose

of facilitating research into constitutional original

meaning: COFEA (the Corpus of Founding Era American English) and COEME (the Corpus of Early Modern

English).

3. See the discussion in Brief of Neal Goldfarb as Amicus Curiae

at 5-9, New York State Rifle & Pistol Assn. v. Corlett, No. 20843 (U.S. filed Feb. 12, 2021) (“Goldfarb Cert.-Stage Amicus

Brief”), cert. granted sub. nom. New York State Rifle & Pistol

Assn. v. Bruen (April 26, 2021).

3

The data from those corpora thoroughly undermines Heller’s original-meaning analysis.

To start with, the data shows that the definitions

of bear and arms that the Court relied on, and on which

it based its interpretation of bear arms, provided a misleading impression of how the two words were used

during the founding era. Bear was not generally synonymous with carry, and only about half the uses of arms

in the corpus conveyed the literal meaning ‘weapons.’

The other half consisted of figurative uses having to do

with war and the military.

Thus, Heller’s interpretation of bear didn’t reflect

how the word was ordinarily used, and its interpretation of arms is called into question by the Court’s unawareness of a major ambiguity. So it is unsurprising

that the Court interpreted bear arms to mean ‘carry

weapons.’

However, the corpus data provides powerful evidence that that wasn’t how bear arms was ordinarily

used. Amicus concluded that the data was overwhelmingly dominated by uses of bear arms that conveyed an

idiomatic military meaning. Other researchers have

with one exception come to essentially the same conclusion,4 and even the researcher constituting the ex4. Dennis Baron, Antonin Scalia was wrong about the meaning

of ‘bear arms,’ Washington Post (May 21, 2018), available at

tinyurl.com/Baron2AmWaPo; see also Dennis Baron, Corpus

Evidence Illuminates the Meaning of Bear Arms, 46 Hastings

Const. Law. Q. 509 (2019); Josh Blackman & James C. Phillips, Corpus Linguistics and the Second Amendment, Harv. L.

Rev. Blog (Aug. 7, 2018), bit.ly/BlackmanPhillipsHLRBlog;

Neal Goldfarb, Corpora and the Second Amendment: “bear

4

ception concluded that idiomatic military uses were

about three times as common as literal uses.

The corpus data is at odds with Heller in other

ways as well. For example, the data provides reason to

believe that the right of the people as used in the Second

Amendment would have been understood to denote a

right that was collective in nature rather than individual. For the reasons above, among others, Amicus concluded that such an interpretation reflects the way in

which the Second Amendment was most likely to have

been understood when it was framed and ratified.

With the one exception mentioned above, Amicus’s reading of the corpus data has not been disputed.

That is striking, because gun-rights advocates have

had an obvious incentive to challenge Amicus’s analysis, and the analyses by the other researchers referred

to above. And they have had more than enough time to

study the corpus data for themselves. Findings regarding the data for bear arms were first made public

roughly 3½ years before cert. was granted in this case.5

And Amicus’s analysis, which deals with issues in addition to bear arms, was completed roughly two years

ago, and has been publicly available since then.6 Yet

despite having both an incentive and an opportunity,

gun-rights advocates have failed to offer a competing

arms” (part 1), plus a look at “the people,” LAWnLinguistics

(April 29, 2019), bit.ly/BearArms1LnL; Neal Goldfarb, Corpora and the Second Amendment: “bear arms” (part 2) (April

30, 2019), bit.ly/BearArms2LnL.

5. See sources cited in note 4, supra.

6. Goldfarb Analysis, supra note 2.

5

interpretation of the data. Instead, their response has

been to criticize the use of corpus linguistics as an

interpretive methodology. 7

Such criticism has shown up in this case, primarily

in the amicus brief of the NRA Civil Rights Defense

Fund (“the NRA Fund” or “the Fund”). But as Amicus

will show, that criticism is unfounded. Under this

Court’s precedents, corpus linguistics is an appropriate

interpretive tool, both in legal interpretation generally

and in connection with the Second Amendment in particular.

Argument

I.

The corpus data undermines Heller’s interpretation of the Second Amendment.

A. The data shows Heller to have been mistaken about founding-era usage.

1. bear and arms

Heller’s interpretation of bear arms as meaning

‘carry weapons’ was based in large part on dictionary

entries defining bear as ‘carry’ and arms as ‘weapons.’

554 U.S. at 581, 584. Given that starting point, it’s not

7. E.g., Robert VerBruggen, Gun Groups Take Concealed Carry

to the Supreme Court, National Review Online (Dec. 18, 2020),

bit.ly/VerBruggen2AmCarry; Plaintiffs-Appellants’ Supp. Br.

8-20, Jones v. Bonta, No. 20-56174 (9th Cir. filed April 23,

2021); E. Gregory Wallace, Legal Corpus Linguistics and the

Meaning of “Bear Arms,” Second Thoughts Blog (July 16,

2021), bit.ly/WallaceSecondThoughts.

6

surprising that the Court interpreted bear arms as it

did.

But as to both words, the corpus data shows that

the definitions provided a view of 18th century linguistic usage that was incomplete, and that was therefore

misleading. As a result, the Court was on shaky ground

in relying on the dictionary definitions in interpreting

bear arms.

bear. While the data shows that bear was sometimes used to convey the meaning ‘carry [a physical object],’ the overall pattern of use for bear and carry differed substantially.8 For example, carry was used to

denote the carrying of things such as guns, provisions,

goods, letters, baggage, supplies, mail, boards, packs,

and parcels. But for bear, comparable uses were much

less common, as to both how many kinds of objects

were described as being borne and the total number of

times bear was used in that way.9

The differences between bear and carry can be explained in large part by changes in the use of bear after

carry became part of English in (or before) the 14th

century. A corpus-based study of both words has been

conducted by Philip Durkin, the Deputy Chief Editor

8. Goldfarb Analysis 18-23; for the underlying data, see Neal

Goldfarb, Corpus data: bear, carry - collocate lists (Dec. 16,

2018), bit.ly/BearCarry_collocates, and Neal Goldfarb, Corpus

data: bear, carry - concordance data (Dec. 16, 2018), bit.ly/

BearCarry_concordances.

9. Goldfarb Analysis 18-19; Corpus data: bear, carry - collocate

lists, supra note 8. For a discussion of other ways in which

bear was used differently than carry, see Goldfarb Analysis

19-23.

7

and principal etymologist of the O xford English Dictionary, and he reported that by the end of the 1600s,

carry had largely replaced bear as the verb generally

used to convey the meaning ‘carry.’10 So by the time the

Second Amendment was framed and ratified, the use

of bear to mean ‘carry’ was a remnant of the past.

arms. Although the use of arms to mean ‘weapons’ is more common in the data than the use of bear

to mean ‘carry,’ it accounted for only about half of the

relevant uses in the data. The remainder consisting of

a variety of figurative meanings relating to war, combat, and the military.11

That fact, when coupled with the data regarding

bear, gives reason to think (even before reviewing the

corpus data for bear arms) that the idiomatic military

sense was more common than the Court in Heller

thought. In addition, the data regarding bear and arms

suggests that in the roughly 220 years between the

Second Amendment’s ratification and the decision in

Heller, the English language changed in ways that may

not be obvious, and that as a result, one shouldn’t

assume that one’s intuitions about the meanings of

founding-era texts are reliable.

In thinking about the Second Amendment’s original meaning, therefore, one must set aside preexisting

assumptions when considering the linguistic evidence.

10. Philip Durkin, Borrowed Words: A History of Loanwords in

English 407-08 (2014).

11. Goldfarb Analysis 23-27.

8

2. bear arms

The corpus data for bear arms confirms the wisdom of the recommendation above to keep an open

mind. The idiomatic military meaning of bear arms

appears in the data far more often than what Heller

referred to as the phrase’s “natural meaning,” 554 U.S.

at 584.12

Note that Amicus uses the phrase “military meaning” advisedly. His conclusion is not merely that bear

arms was used most often in a military context. Rather,

he has described the overwhelming majority of uses as

conveying the phrase’s “idiomatic military meaning.”13

(Note, too, that contrary to what Heller would lead one

to think, 554 U.S. at 586, most of the military uses did

not take the form of bear arms against X.)

Other scholars, including some who support Heller’s interpretation of the right to bear arms, have

reached conclusions similar to Amicus’s.14 Only one

researcher has expressed any disagreement with Amicus’s conclusions, and even by his count, uses of bear

arms conveying the military meaning (147 uses) are

roughly three times as frequent as those he categorizes

as unambiguously literal (47 uses).15 Moreover, when

12. Goldfarb Analysis 34-52;

13. Goldfarb Analysis 38, 47 (emphasis added).

14. See citations to Baron and to Blackman & Phillips, supra note

4.

15. Josh Jones, Comment, The "Weaponization" of Corpus Linguistics: Testing Heller's Linguistic Claims, 34 BYU J. Pub.

L. 135, 171 (2019). Jones refers to the military meaning as

9

one puts aside the uses categorized by this researcher

as ambiguous, one sees that he categorized only 21% of

the relevant uses as unambiguously literal.16 Thus,

everyone who has studied the corpus data (and publicly

acknowledged doing so) agrees that the data does not

support Heller’s interpretation of bear arms; the only

disagreement concerns the extent of the inconsistency.

Not only that, not a single advocate of gun rights

has disputed Amicus’s conclusion as to the overwhelming predominance of idiomatic military uses in

the data for bear arms. This is notable because gunrights advocates have an incentive to try to discredit

Amicus’s analysis (and the analyses of those who have

reached similar conclusions). It is reasonable to think

that at least some gun-rights advocates have downloaded Amicus’s data and studied it in an effort to find

fault with it. Yet no one has come forward with any

such argument.

3. keep arms

Amicus’s original analysis (completed in 2019)

had little to say about keep arms, but he has subsequently reviewed the data for the period 1760-1799

and concluded that most of the relevant uses involved

the keeping of weapons in a military context, a collec-

“figurative” rather than “idiomatic,” but that difference is

purely terminological.

16. See Jones, supra note 15, at 171:

Total unambiguous uses = 224

Total literal uses = 47

47/224 = .21

10

tive context, or both.17 However, Amicus does not regard this as suggesting that keep arms had two meanings, one military and the other nonmilitary. He therefore does not think that the data for keep arms plays a

role in interpreting “the right of the people to keep…

arms.”

Rather, Amicus believes that the important issue

in interpreting that right is whether the right of the

people was understood as denoting a collective as opposed to individual right (a question addressed in the

next section). Under such an interpretation, the right

to keep arms would have been understood as a right of

the people to keep arms collectively—e.g., in arsenals.18

Although Amicus doesn’t regard the data for keep

arms as being helpful in interpreting the right to keep

arms, he sees that data as being relevant for a different

purpose: it suggests that the phrase keep arms was

associated more with military and collective action

than with individual self-defense. (In contrast, the data

for keep guns includes more uses involving nonmilitary

and noncollective contexts those for keep arms, in

terms of both absolute numbers and percentage of total

17. Neal Goldfarb, COFEA & COEME: keep arms, (rev. Sept. 13,

2021, bit.ly/Goldfarb2dAmKeepArms.

18. Cf. Kevin M. Sweeney, Firearms, the Militia, and the Second

Amendment, in The Second Amendment on Trial: Critical Essays on District of Columbia v. Heller 310, 327-63 (Saul

Cornell & Nathan Kozuskanich eds. 2013) (discussing reliance on publicly-supplied weapons during the colonial, revolutionary, and post-revolutionary periods).

11

results.19) This pattern of results is consistent with the

fact that uses in the corpus of bear arms predominantly

conveyed an idiomatic military meaning, and as a result it provides additional support for the conclusion

that Heller’s interpretation of bear arms was mistaken.

4. the right of the people

a. The Court in Heller based its interpretation of

the right of the people on how that phrase (and the

phrase the people) were used in the Constitution, without considering how the right of the people was used

elsewhere. 454 U.S. at 579-80.

I n an effort to answer that question, Amicus reviewed every use of the right of the people in the corpus

data for the period 1760 through 1799. He found that

uses in which the right in question was unambiguously

collective (meaning that the right’s exercise required

the collective action of multiple people) were more than

11 times as frequent as those in which it was unambiguously individual.20 The following are some examples

of the collective uses:

to amend, and alter, or annul their Constitution, and frame a new one

to call a Convention at any time

to change their government & give it the form

they please

19. Neal Goldfarb, COFEA & COEME: keep guns (revised Sept.

12, 2021), bit.ly/Goldfarb2dAmKeepGuns.

20. See Neal Goldfarb, COFEA & COEME, right of the people, the

people have a right, and the people's right (April 29, 2019),

Goldfarb2dAmRtPeople.

12

This evidence gives reason to think that the rights

protected by the Second Amendment would have been

understood as belonging to “the people” collectively

rather than belonging individually to each person who

was one of “the people.”

Heller’s conclusion to the contrary, 454 U.S. at

579-81, was tacitly based on what is referred to in Scalia & Garner’s Reading Law as “the presumption of

consistent use,” which the authors describe as being

“particularly defeasible by context.”21 They also note

that Justice Story (who the Court repeatedly relied on

in Heller) wrote that “‘[it] is by no means a correct rule

of interpretation to construe the same word in the

same sense, wherever it occurs in the same instrument.’”22 The corpus data supports the conclusion that

the presumption has been overcome here,23 but at a

minimum it shows that the right of the people, as used

in the Second Amendment, is ambiguous—a point

whose significance is discussed below (at 18-20).24

b. The corpus data for the right of the people is relevant not only in interpreting the Second Amendment

21. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 170, 171 (2012).

22. Id. (quoting 1 Joseph Story, Commentaries on the Constitution

of the United States § 454, at 323 (2d ed. 1858)).

23. See Goldfarb Analysis 56-59.

24. Heller relied not only on how the right of the people was used

in the Constitution but also on the Constitution’s use of the

people. 454 U.S. at 580-81. Amicus’s analysis addresses the

Court’s discussion of that issue, arguing that the corpus data

provides evidence supporting a conclusion different from the

Court’s. Goldfarb Analysis 56-59.

13

but also with regard to the state constitutional provisions that the Court described in Heller as being the

uses of bear arms that were “[the] most relevant to the

Second Amendment.” 554 U.S. at 584; see id. at 58486, 600-03.

(i) In seven of those provisions, the right to bear

arms was described using language similar to the right

of the people:

x

x

“the people have a right to bear arms”25 or

“…to keep and bear arms”26

or

“their [= the people’s] right to bear arms”27

These phrases are ambiguous in much the same way as

the right of the people is. As is true of the corpus data

for the right of the people, uses of these phrases to denote collective rights substantially outnumber those

denoting rights that were individual.28 The right protected by each of these provisions can therefore reasonably be interpreted as having been inherently collective

rather than individual.

I n two of the provisions there is additional evidence that favors interpreting the right protected by

25. Pa. Decl. of Rights § XII; N.C. Decl. of Rights § XVII; Vt. Decl.

of Rights, ch. 1, Art. XII; Ohio Const., Art. VIII, § 20 (1802);

Ind. Const., Art. First, § 20 (1816).

26. Mass. Const. Pt. First, Art. XVII.

27. Mo. Const., Art. XII, § 3 (1820).

28. Neal Goldfarb, COFEA & COEME, right of the people, the people have a right, and the people's right (April 29, 2019),

Goldfarb2dAmRtPeople.

14

the provision as being collective (and therefore military) in nature. I n the Massachusetts provision, the

protected right is phrased as a right “to keep and to

bear arms for the common defense,” and in the North

Carolina provision it is described as a right “to bear

arms in defence of the State.”29 The Court recognized

in Heller that this language could reasonably be read

as limiting the Second Amendment’s protection to

bearing arms in connection with militia service. 554

U.S. at 601, 602. And the argument for such an interpretation becomes even stronger if the right of the people is interpreted in a collective sense.

I n the other provisions using language similar to

the right of the people, the protected right was defined

as a right “to bear arms in defence of themselves and

of the State[.]” While Heller interpreted the right of

the people to bear arms “in defense of themselves” as

unambiguously individual, the Court had no way of

knowing about the evidence suggesting that the people

have a right and the people’s right could reasonably be

interpreted collectively. That is important because

under such a reading, the people’s right to bear arms

“in defense of themselves” could be understood as

protecting the right of collective self-defense through

service in the militia. I ndeed, the Vermont Supreme

Court, in a decision relying in part on corpus data, recently interpreted the Vermont provision as doing exactly that. 30

29. See citations supra notes 25 & 26.

30. State v. Misch, 2021 Vt. 10, ¶¶ 11-31. For historical support

for interpreting in defense of themselves collectively, see, e.g.,

15

(ii) In addition to relying on the provisions discussed above, Heller relied on provisions that are distinguishable from the Second Amendment in that rather

than describing the right to bear arms as a right of “the

people,” they describe it as a right of “the citizens,”31

of “every citizen,”32 or (in one case) of “the freemen of

this state.”33 The effect of that difference is to reduce

these provisions’ relevance to the interpretation of the

Second Amendment, but to the extent that they are in

fact relevant, they don’t support Heller’s interpretation. 34

In contrast to the corpus data relevant to the right

of the people the data relevant to the corresponding language in these provisions is weighted toward uses in

which the right in question is individual rather than

collective.35 That subset of the data supports the conclusion that these provisions don’t shed much light on

Nathan Kozuskanich, Pennsylvania, the Militia, and the

Second Amendment, 133 Penn. Mag. of Hist. & Biog. 119

(2009).

31. Ky. Const., Art. XII, § 23 (1792).

32. Conn. Const., Art. First, § 17 (1818); Ala. Const., Art. I, § 23

(1819); Me. Const., Art. I, § 16 (1819), Miss. Const., Art. I, §

23 (1817).

33. Tenn. Const., Art. XI, § 26 (1796).

34. The discussion here also applies to the 15 additional state

right-to-bear-arms provisions that are cited by Amicus FPC

American Victory Fund and its fellow amici (Br. at 4; see id.

at 5-8).

35. Neal Goldfarb, CO FEA & CO EME (1760-1799) right - citizens, freemen (Sept. 12, 2021), bit.ly/2Am_RightCitizensFree

men.

16

how the right of the people as was likely to have been

understood.

But that said, the data here does include uses that

Amicus interprets as collective or as having both collective and individual aspects. The existence of such

uses suggests that some of the rights described as belonging to “the citizens,” “every citizen,” or “freemen”

were sometimes understood as being collective at least

in part. To that extent, therefore, these provisions are

at least somewhat relevant to the interpretation of the

Second Amendment, but not in a way that supports

Heller’s analysis.

5. the right of the people to…bear

arms

Given that the idiomatic military sense of bear

arms dominates the corpus data, it is likely that the use

of the phrase in the Second Amendment was understood as conveying an idiomatic military meaning.

However, what Amicus has for the sake of simplicity

been referring to as “the military sense” (in the singular) is more accurately described as a range of meanings encompassing, at one extreme, merely serving in

the military, and at the other extreme, actively fighting

in combat. The question therefore arises as to which

part of that range of conduct is protected by the Second

Amendment.

Amicus concluded in his analysis that the right of

the people to bear arms was probably understood as the

a right to serve in the militia.36 That conclusion was

36. Goldfarb Analysis 52-56.

17

based on the fact that bearing arms was regarded as

both a right and a duty. The corpus data, and other

historical evidence, suggests that the duty to bear arms

was understand to be a duty to serve in the militia, and

Amicus thought that the corresponding right to bear

arms was understood as having the same scope.37

After further reflection, however, Amicus believes

that he may have given insufficient weight to the

likelihood that the right of the people, as used in the

Second Amendment, was understood in a collective

sense. He therefore doesn’t rule out the possibility that

the right to bear arms was understood in terms even

more strongly collective than what he previously

thought. Further research and discussion is needed as

to this issue, by both legal scholars and historians.38

6. Other issues

Amicus would like to call the Court’s attention to

two issues he has addressed elsewhere but does not

have room to do more than mention here.

37. Id. at 52-60. Amicus also concluded that contrary to what the

Court said in Heller (554 U.S. at 580-81), the people as used in

the Second Amendment can reasonably be interpreted as

having referred to those who were eligible for militia service.

Goldfarb Analysis 56-59.

38. The Court in Heller said that interpreting the Second Amendment to protect a “right to be a soldier or to wage war” was

“an absurdity that no commentator has ever endorsed.” 554

U.S. at 586. But such an interpretation has in fact been

endorsed by commentators, and (more importantly) is supported by historical evidence. See Goldfarb Analysis 53-55.

18

First, he has argued that Heller’s interpretation of

well regulated militia is flawed in its reasoning and inconsistent with evidence that the phrase was likely to

have been understood to denote a militia organized and

regulated by the relevant state.39

Second, he has responded to Heller’s argument

that the use of bear arms in the Second Amendment

cannot be interpreted idiomatically because that would

require reading arms as being simultaneously literal

(as part of keep arms) and figurative (as part of bear

arms), 554 U.S. at 586-87. Specifically, he has argued

that keep and bear arms could in fact have been

understood that way when the Second Amendment

was framed and ratified.40

B. In light of the corpus data (and the

analytical framework in Heller) the

Court’s interpretation of the Second

Amendment is untenable.

1. The Court structured its analysis in Heller

around the conclusion that the Second Amendment’s

prefatory clause plays no role in interpreting the operative clause unless the operative clause is ambiguous,

in which event the ambiguity is be resolved by consulting the prefatory clause. 554 U.S. at 577-78. So in

order for Amicus to show that the prefatory clause

must be considered in interpreting the operative

39. Brief of Neal Goldfarb as Amicus Curiae in Support of Respondents, Folajtar v. Garland, No. 20-812 (U.S. filed March

12, 2021), cert. denied, April 19, (2021).

40. Goldfarb Analysis 60-73.

19

clause, he need not establish that the Court’s analysis

of the operative clause is wrong in every respect, or

that all of its conclusions are unreasonable. Rather, he

need only show that the Second Amendment does not

unambiguously mean what the Court held it to mean.

Amicus has satisfied that burden. He has shown

that at a minimum, bear arms as used in the Second

Amendment could reasonably have been understood as

conveying an idiomatic military meaning. I t is therefore appropriate to take the prefatory clause into account in interpreting the operative clause.

2. Once the prefatory clause is taken into account

as part of interpreting the operative clause, it becomes

clear that bear arms should be understood as having

been used in an idiomatic military sense. Amicus has

discussed that point in detail as part of his analysis,41

but in this brief he can’t do more than offer a barebones explanation.

For founding-era readers of the Second Amendment’s text, the prefatory clause established the immediate context within which they would have understood the operative clause. What would have stood out

as most important was the importance of having a well

regulated militia—a concept that would have been

more likely to bring the brought to mind the idiomatic

military sense of bear arms than the literal sense. The

idea of a well regulated militia is conceptually closer to

the military sense than to the literal sense, given that

militia service, and the militia itself, were central aspects of the military sense. And that, together with the

41. Goldfarb Analysis 56-59.

20

much greater frequency of the military sense, means

that the military sense would almost certainly have

been what came to mind.42

This is true despite Heller’s conclusion that the

prefatory clause is consistent with the operative clause,

554 U.S. at 598-60. That conclusion presupposes that

the Court was correct in its interpretation of the

prefatory clause, but that presupposition is unjustified.

As previously noted (pp. 17-18, supra), the Court’s

interpretation of well regulated militia (the most important part of the prefatory clause) doesn’t hold up to

scrutiny. And beyond that, Heller’s interpretation of

the prefatory clause assumes that the Court was correct in its interpretations of bear arms and the right of

the people. The discussion of the corpus data shows

that assumption to have been unjustified. For both of

those reasons, Heller’s interpretation of the prefatory

clause is overdue for reconsideration.

II.

The NRA Fund’s criticism of corpus

linguistics as an interpretive tool is

unfounded.

Having found no significant flaws in Amicus’s conclusions about the corpus data, the NRA Fund (like

gun-rights advocates more generally) falls back on

criticizing the use of corpus linguistics in legal interpretation.43 This move is ironic given that the first person to advocate the use of corpus linguistics as to the

42. Id.

43. See, e.g., sources cited in note 7, supra.

21

Second Amendment was the gun-rights advocate and

originalist scholar Randy Barnett.44

Of course, what is more important than the irony

of the NRA Fund’s criticism is that, as shown below, it

is baseless.

A. Frequency analysis is an appropriate

methodology for legal interpretation

generally.

Before dealing with the use of frequency analysis

in connection with interpreting the Second Amendment, it will be helpful to explain why such analysis is

appropriate with respect to legal interpretation more

generally.

1. The starting point is the rule that the terms in

a legal provision are to be interpreted as having their

ordinary meaning. Although there is no single conception of ordinary meaning that is uniformly applied

(as shown by the differing approaches to interpreting

use a firearm followed by the majority and the dissent

in Smith v. United States45), this Court has in a number

of cases equated ordinary meaning with what the expression at issue “ordinarily means” and how it is “or44. Randy E. Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83 Tex. L. Rev.

237, 239-40 (2004); see Goldfarb Cert.-Stage Amicus Brief, supra note 3, at 5-6. Barnett’s article was written before any

significant attention was paid to the idea of using corpus linguistics in legal interpretation, and he wasn’t aware at the

time that what he was advocating was, in effect, corpus linguistics.

45. 508 U.S. 223 (1993).

22

dinarily used.”46 The way an expression is ordinarily

used is by definition the way it is most often used.47 The

same is true with respect to other formulations the

Court has invoked, such as “normal and usual meaning”48 and “normally means.”49 Indeed, the Court has

equated the ordinary meaning of a word with its “most

common meaning.”50

Under cases such as these, corpus data about the

relative frequencies of different senses of an expression

is relevant to determining ordinary meaning: it is evidence as to what the expression ordinarily means, how

it is ordinarily used, and what its most common meaning is. But two caveats must be kept in mind.

First, the cases cited above must be read in light

of the “fundamental principle of statutory construction

(and, indeed, of language itself) that the meaning of a

word cannot be determined in isolation, but must be

drawn from the context in which it is used.”51 There46. E.g., Lorenzo v. SEC, 139 S. Ct. 1094, 1101 (2019); Wisconsin

Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070–71, 2072

(2018); Mohamad v. Palestinian Auth., 566 U.S. 449, 454

(2012); United States v. Bestfoods, 524 U.S. 51, 66 (1998);

FDIC v. Meyer, 510 U.S. 471, 476 (1994); Mallard v. U.S. Dist.

Court for S. Dist. of Iowa, 490 U.S. 296, 300–01 (1989).

47. E.g., American Heritage Dictionary of the English Language

1238 (4th ed. 2006); New O xford American Dictionary 1198

(2d ed. 2005).

48. FTC v. Sun Oil Company, 371 U.S. 505, 516 (1963).

49. Deal v. United States, 508 U.S. 129, 133 (1993).

50. Mallard, 490 U.S. at 301.

51. Deal, 508 U.S. at 132.

23

fore, contrary to what the NRA Fund seems to think

(Br. at 15), the interpretive goal is not to determine the

most frequent use of the word overall, without regard

to context, but rather to determine the most frequent

contextually similar use of the word.52

Second, using corpus data to determine which

sense of a word is the most frequent requires that the

word in question have more than one potentially relevant sense. Not all issues that are regarded as involving word meaning fit that description. For example, in

the classic vehicles-in-the-park hypothetical, only one

sense of vehicle is relevant; it would be strange to say

that vehicle means something different with respect to

cars than what it means with respect to trucks. But

that problem doesn’t arise here: the idiomatic military

sense of bear arms conveys a meaning different from

the sense that Heller found to be its natural meaning.

2. In addition to equating ordinary meaning with

what the relevant word ordinarily means and how it is

52. E.g., Neal Goldfarb, The Use of Corpus Linguistics in Legal

Interpretation, 7 Ann. Rev. Ling. 473, 475-76, 477-78 (2020),

available at bit.ly/GoldfarbAnnRevLing; Neal Goldfarb, A

Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics, 2017 BYU L. Rev. 1359, 1362, 1366-68, 1379

2018); Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 Yale L. J. 788, 795, 821-24, 826 (2018).

With respect to the Second Amendment, the most contextually similar uses of bear arms are the state constitutional

provisions that are discussed above (at 12-16, supra). But as

that discussion shown, those uses can’t offer much guidance.

That ultimately isn’t important, however, because the military sense of bear arms is used uniform across almost all

other contexts.

24

ordinarily used, the Court has equated it with how the

word is “ordinarily understood.”53 And although corpus data cannot provide direct evidence of how words

are ordinarily understood, it can provide indirect evidence of such ordinary understanding. On the assumption that people ordinarily speak and write in such a

way as to make themselves understood, the way a word

or phrase is ordinarily understood corresponds to how

it is ordinarily used. (This is essentially what it means

to say that words have conventional meanings.) Thus,

ordinary usage can serve as a proxy for ordinary understanding.54

This conclusion is valid not only from a linguistic

perspective, but also as a legal proposition. This Court

has in a number of cases treated ordinary understanding and ordinary usage as two sides of the same

coin—for example by referring in an opinion both to

how the relevant word was “ordinarily understood”

and how it was “ordinarily used”;55 by switching its

focus in an opinion back and forth between usage and

53. Wisconsin Central Ltd., 138 S. Ct. at 2070.

54. For further discussion, see The Use of Corpus Linguistics in

Legal Interpretation, supra note 52, at 476-77, 478-79; Neal

Goldfarb, Varieties of Ordinary Meaning: Comments on Kevin

P. Tobia, “Testing O rdinary Meaning,” 5-8 (2020), bit.ly/

VarietiesOrdinaryMeaning.

55. Wisconsin Central Ltd., 138 S. Ct. at 2072.

25

understanding;56 and by talking about how the relevant word is “ordinarily used and understood.”57

3. The NRA Fund cites the work of several commentators in support of its criticisms of frequency

analysis (Br. at 14–15 & nn. 37-40), but none of that

work supports its position.

Although three of the articles the Fund cites are

critical of frequency analysis, they miss the mark because they don’t recognize the conception of ordinary

meaning as amounting to the way that the relevant

word or expression is ordinarily used.58 Another of the

articles is cited for a proposition that does nothing to

advance the Fund’s argument, namely, that corpus

linguistics can’t resolve normative questions such as

“what makes some permissible meaning the ordinary

meaning.”59 That proposition is irrelevant because Amicus doesn’t rely on linguistics to resolve that issue.

56. Wisconsin Cent. Ltd., 138 S. Ct. at 2071-72; Watson v. United

States, 522 U.S. 74, 79 (2007); Lopez v. Gonzalez, 549 U.S. 47,

53, 56 (2006). See The Use of Corpus Linguistics in Legal

Interpretation, supra n. 52; Varieties of O rdinary Meaning,

supra note 54 at 6-8.

57. Lumbra v. United States, 290 U.S. 551, 561 (1934).

58. Carissa Byrne Hessick, Corpus Linguistics and the Criminal

Law, 2017 B.Y.U. L. Rev. 1503 (2018); Mark W. Smith & Dan

M. Peterson, Big Data Comes for Textualism: The Use and

Abuse of Corpus Linguistics in Second Amendment Litigation

(July 14, 2021), bit.ly/2UQDpfz; Kevin Tobia, Testing O rdinary Meaning, 134 Harv. L. Rev. 726 (2020).

59. Stefan Th. Gries & Brian G. Slocum, Ordinary Meaning and

Corpus Linguistics, 2017 BYU L. Rev. 1417, 1421 (2018), quoted in NRA Fund Br. 15 n.39.

26

Rather, as previously discussed, Amicus relies on this

Court’s decisions equating ordinary meaning with the

way in which the relevant term is ordinarily used and

understood.60

4. The NRA Fund criticizes legal corpus linguistics for not living up to its supposed ideals: it says that

“corpus linguistics analysis is as much art as it is science” and that “[a]s scientific as it might sound, discerning usage from database hits is full of judgment

calls.” (Br. 7.) But as applied to Amicus’s analysis, that

criticism is misdirected.

Amicus has never suggested that corpus analysis

doesn’t involve making judgment calls. Nor has he ever

suggested that a reason for using corpus linguistics is

that doing so would make legal interpretation “scientific.” Rather, his reason for using it and advocating its

use is simply that it provides more and better information than dictionaries do.

The mere fact that corpus analysis requires the exercise of judgment therefore provides no reason to reject its use. Rather, the appropriate focus is on the

substance of the judgment calls. And the circumstances

here provide assurance that Amicus’s methodology and

interpretation of the data are both sound. That assurance comes from the fact that his analysis has been

fully transparent. The data underlying Amicus’s origi-

60. The final article cited by the NRA Fund (Br. 15 n.39) is Lawrence M. Solan & Tammy Gales, Corpus Linguistics as a Tool

in Legal Interpretation, 2017 BYU L. Rev. 1311 (2018). As far

as Amicus can tell, the portion of the article that is cited has

nothing to do with the point the Fund seeks to make.

27

nal analysis (cited here as “Goldfarb Analysis”) has

been publicly available for at least two years, as has his

evaluation of every one of the hundreds of individual

data points contributing to his analysis.61 During that

entire time, gun-rights advocates have had an obvious

incentive to challenge his analysis. Yet both his methodology and his findings have for the most part gone

unchallenged.62

B. Frequency analysis is also appropriate in the context of Heller and the

Second Amendment.

1. In its discussion of bear arms, Heller used different terminology than was used in the cases

discussed in the preceding section: it spoke in terms of

“natural meaning” rather than “ordinary meaning.”

554 U.S. at 584. But that difference is superficial,

61. Some of the data analyses discussed in this brief were conducted in 2021, and have not been generally available until

now. See notes 17, 19, 35, supra and 67, infra, and accompanying text).

62. The NRA Fund’s only criticism of Amicus’s methodology is

that he limited his analysis to texts from 1760-1799. (Br. 910.) But at least as to bear arms, research by another scholar

shows that the pre-1760 results would have been essentially

the same as Amicus’s. See Baron, Corpus Evidence Illuminates the Meaning of Bear Arms, supra note 4. And while it is

true that, as the Fund notes, Amicus did not consider materials from the Reconstruction era, such documents aren’t reliable evidence of founding-era understandings.

The Fund’s criticism of a categorization criterion used by

researchers other than Amicus (Br. at 10-11) is irrelevant

here because Amicus didn’t rely on that criterion.

28

because the Court has treated the two formulation as

synonymous.63 And in at least three such cases, it

equated “ordinary meaning” (and therefore “natural

meaning”) with how the word in question is “ordinarily used” and “ordinarily understood.64

Furthermore, the approach in those cases is similar in substance to the Court’s stated approach Heller.

The Court said at the outset that the Constitution “was

written to be understood by the voters” and that “its

words and phrases were used in their normal and ordinary as distinguished from technical meaning.” 554

U.S. at 576 (cleaned up). While the Court’s reference to

“ordinary” meaning might have been meant only as a

contrast to “technical meaning,” its reference to “normal…meaning” implicitly invoked considerations of

frequency (as did the reference to what bear arms

“normally meant”, id. at 586).

The Court also cited the passage in Chief Justice

Marshall’s opinion in Gibbons v. Ogden, 22 U.S. 1, 188

(1824), suggesting that the words in the Constitution

should be interpreted in accordance with how they are

“usually understood,” and stating that the framers and

ratifiers “must be understood to have employed words

in their natural sense[.]” As with Heller’s allusion to

“normal meaning,” the reference in Gibbons to how

words are “usually understood” supports the conclu63. E.g., S.D. Warren Co. v. Maine Bd., 547 U.S. 370, 376 (2006);

Bestfoods, 524 U.S. at 66; Meyer, 510 U.S. at 476; Mallard,

490 U.S. at 300–01.

64. Bestfoods, 524 U.S. at 66; Meyer, 510 U.S. at 476; Mallard,

490 U.S. at 300–01.

29

sion that the relative frequency of a particular sense of

a word is relevant in determining original meaning.

And given that point, the statement that the words in

the Constitution were used “in their natural sense”

suggests that a term’s “natural meaning” amounts to

the meaning that it is “usually understood” to convey.

Also relevant (though not cited in Heller) is Chief

Justice Marshall’s dissent in O gden v. Saunders, 25

U.S. 213 (1827), where he said that the Constitution’s

words “are to be understood in that sense in which

they are generally used by those for whom the instrument was intended[,]” id. at 332 (emphasis added)—a

parallel with the cases discussed in the previous section

that focus on how the term at issue is “ordinarily

used.”

2. In addition to criticizing the use of corpus linguistics in legal interpretation generally, the NRA Fund

raises arguments against its use that are specific to the

Second Amendment. But those arguments are baseless.

a. Contrary to what the NRA Fund contends (Br.

at 14), Heller did not reject the use of frequency analysis. The discussion above has shown that frequency

analysis is entirely consistent with Heller, and the

portion of the opinion that the Fund cites (554 U.S. at

588-89) provides no reason to think otherwise.

b. The NRA Fund argues that because the corpus

data overrepresents the writings of founding-era political and social elites, it “might not fully reveal commonly understood meaning when it comes to the Bill of

30

Rights.”65 This argument is speculative by its own

terms, and the Fund offers no reason to think that the

corpus results would differ significantly if the data

included more texts from non-elite sources.

Even if the Fund had presented evidence backing

up its argument, that wouldn’t effectively defend Heller against the challenge posed by the corpus data.

That’s true for two reasons. First, the Fund’s argument would prove too much, because its criticism of the

corpus data applies equally to the texts on which the

Court relied in Heller. Second, if there was substantial

variation in how the terms in the Second Amendment

were used, that would mean that those terms were ambiguous. And that, in turn, would provide an independent basis for consulting the prefatory clause in order

to resolve the ambiguity, with the consequences that

have already been discussed (pages 19-20, supra).

c. I n addition to arguing that the corpus data is

weighted toward elite usage, the NRA Fund contends

that it is unduly slanted toward discussions of “newsworthy” topics and slights those about topics that are

“more mundane.” (Br. at 14-16.) As a result, the Fund

contends, the data does not reflect day-to-day discussions in which bear arms may have been used in talking

about carrying and using weapons in nonmilitary contexts. (Id. at 16-17.)

But that argument is based on an implicit assumption for which the Fund offers no justification and that

is demonstrably unfounded. The assumption is that

when people during the founding era wanted to talk

65. NRA Fund Br. 12; see also id. at 13-14.

31

about carrying weapons in nonmilitary contexts, bear

arms was the only expression in their vocabularies that

would enable them to do so. Without that assumption,

the Fund’s argument would be invalid, because there

would be no reason to think that the references to

carrying weapons that are supposedly missing from the

corpus data would have involved the use of bear arms.

But as the data shows, bear arms was not the only

expression that was used to talk about carrying weapons. Among the available options was, unsurprisingly,

carry arms.66 And the additional options disclosed by

the corpus data include the following:67

carry gun(s)

carry weapon(s))

carry musket(s)

carry pistol(s)

carry rifle(s)

carry fire-arms

carry sword(s)

carry dagger(s)

This evidence exposes the Fund’s argument as a product of imagination.

d. The NRA Fund contends that corpus linguistics

cannot account for the historical background that led

up to the Second Amendment (Br. 19-22), and it’s true

that while corpus linguistics provides a tool for studying linguistic history, it is of limited use in dealing with

social and political history. Nevertheless, it is entirely

possible to rely on historical scholarship in addition to

66. Neal Goldfarb, COFEA & COEME: bear arms & carry arms,

(rev. Sept. 12, 2021), bit.ly/Goldfarb2AmBearArmsCarry

Arms.

67. Neal Goldfarb, COFEA: carry guns, carry weapons, etc. (Sept,

12, 2021), bit.ly/CarryGunsWeapons_etc.

32

corpus linguistics. In fact, Amicus did exactly that in

his analysis.68

The real issue relating to history is that the proper

interpretation of the historical record is very much in

dispute. The Court’s treatment of history in Heller has

been the subject of extensive criticism, as to both its

conclusions and its methodology.69 There is therefore

an element of question-begging in accepting Heller’s

interpretation as conclusive—especially now that Heller’s textual analysis has been shown without contradiction to be deeply flawed.

Conclusion

Amicus has shown Heller’s interpretation of the

Second Amendment to be inconsistent with the Amendment’s original meaning. While that doesn’t necessarily mean Heller should be overruled,70 the issue is

too important to ignore.

But the case in its current posture is not an appropriate vehicle for revisiting Heller: respondents did not

68. Goldfarb Analysis 53-56.

69. See, e.g., Patrick J. Charles, Armed in America: A History of

Gun Rights from Colonial Militias to Concealed Carry 41-121

(2018); Patrick J. Charles, Historicism, Originalism and the

Constitution: The Use and Abuse of the Past in American

Jurisprudence 2014); Lois G. Schwoerer, English and American Gun Rights, in A Right to Bear Arms?: The Contested Role

of History in Contemporary Debates on the Second Amendment

139 (Jennifer Tucker et al., eds. 2019).

70. See amicus’s discussion of this point in his cert.-stage amicus

brief in this case, cited supra note 3, at 22-23.

33

raise the issue in opposing cert., and Petitioners and

their amici have already filed their briefs.

The Court could nevertheless call for supplemental briefing on the issues Amicus has raised, and hold

the case over to next Term for argument on those issues. Amicus urges the Court to do so.

Respectfully submitted,

September 14, 2021

Neal Goldfarb

1301 Fairmont St., N.W.

Washington, D.C. 20009

(202) 262-7886

goldfarbneal@gmail.com

Counsel for Amicus Curiae