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.

Supreme Court briefSep 21, 2021

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No. 20-843

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In The

Supreme Court of the United States

---------------------------------♦---------------------------------

NEW YORK STATE RIFLE & PISTOL

ASSOCIATION, INC., ET AL., PETITIONERS

KEVIN P. BRUEN, IN HIS OFFICIAL

CAPACITY AS SUPERINTENDENT OF

NEW YORK STATE POLICE, ET AL.

---------------------------------♦--------------------------------ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

---------------------------------♦--------------------------------BRIEF FOR CORPUS LINGUISTICS

PROFESSORS AND EXPERTS AS AMICI

CURIAE SUPPORTING RESPONDENTS

---------------------------------♦--------------------------------JAMIE A. LEVITT

JANIE C. BUCKLEY

MORRISON & FOERSTER LLP

250 W 55th St.

New York, NY 10019

BRIAN R. MATSUI

Counsel of Record

SETH W. LLOYD

MORRISON & FOERSTER LLP

2100 L St., NW, Ste. 900

Washington, DC 20037

(202) 887-8784

BMatsui@mofo.com

Counsel for Amici Curiae

SEPTEMBER 21, 2021

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE .........................

INTRODUCTION AND SUMMARY OF

ARGUMENT ........................................................

Corpus Linguistics Provides Previously

Unavailable Guidance On The Meaning Of

The Second Amendment ............................

1. Far more Founding-era texts are more

readily available today than when the

Court decided Heller ............................

2. Corpus linguistics permits greater

research into historical texts...............

3. Corpus linguistics researchers use

databases that are vast, diverse, and

neutral .................................................

Ordinary Use Of “Keep” And “Bear” Arms

At The Founding Confirms That Any Right

To Bear Arms Was Highly Regulated ........ 13

1. Bear arms was frequently used in the

military context, with little reference

to individual rights .............................. 13

2. Keep arms often suggested military

context and the limited individual

uses support that carrying firearms

was often subject to restrictions .......... 21

CONCLUSION..................................................... 24

TABLE OF AUTHORITIES

CASES

Caesars Ent. Corp. v. Int’l Union of Operating

Engineers Local 68 Pension Fund,

932 F.3d 91 (3d Cir. 2019) ............................... 7, 9, 12

Carpenter v. United States,

138 S. Ct. 2206 (2018) .............................................12

District of Columbia v. Heller,

554 U.S. 570 (2008) ............................... 3, 4, 5, 13, 21

Fire Ins. Exch. v. Oltmanns,

416 P.3d 1148 (Utah 2018)......................................13

Lucia v. SEC,

138 S. Ct. 2044 (2018) .............................................12

McDonald v. City of Chicago,

561 U.S. 742 (2010) ...................................................3

Muscarello v. United States,

524 U.S. 125 (1998) ...................................................9

People v. Harris,

885 N.W.2d 832 (Mich. 2016) ..................................12

Wilson v. Safelite Grp., Inc.,

930 F.3d 429 (6th Cir. 2019) ....................................13

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. II .......................1, 3, 4, 5, 13, 14, 23

iii

TABLE OF AUTHORITIES

OTHER AUTHORITIES

Randy E. Barnett, New Evidence of the Original

Meaning of the Commerce Clause, 55 ARK. L.

REV. 847 (2003).................................................. 11, 12

Dennis Baron, Corpus Evidence Illuminates the

Meaning of Bear Arms, 46 HASTINGS CONST.

L.Q. 509 (2019) ........... 5, 13, 14, 15, 16, 17, 21, 22, 23

Dennis Baron, Corpus linguistics, public

meaning, and the Second Amendment, The

Web of Language (July 20, 2021)............................19

Douglas Biber et al., Corpus Linguistics:

Investigating Language Structure and Use

(1998) .........................................................................8

Douglas Biber, Corpus-Based and CorpusDriven Analyses of Language Variation and

Use, in THE OXFORD HANDBOOK OF LINGUISTIC

ANALYSIS (Bernd Heine & Heiko Narrog eds.,

2d ed. 2015) ...............................................................6

Josh Blackman & James C. Phillips, Corpus

Linguistics and the Second Amendment, Harv.

L. Rev. Blog (Aug. 7, 2018) ...................... 5, 12, 21, 23

Jonathan Carver, The New Universal Traveler

(1779) .......................................................................18

Google, Library Partners—Google Books, Google,

https://www.google.com/googlebooks/library/

partners.html .............................................. 10, 12, 17

Stefan Th. Gries, Dispersions and Adjusted

Frequencies in Corpora, 13 INT’L J. CORPUS

LINGUISTICS 403 (2008) ..............................................6

TABLE OF AUTHORITIES—Continued

Robert Henry, The History of Great Britain (2d

ed. 1788) ..................................................................17

Susan Hunston, Corpora in Applied Linguistics

(2002) .........................................................................7

Samuel Johnson, The Works of English Poets

(1779) .......................................................................18

Jeffrey P. Kaplan, Unfaithful to Textualism, 10

GEO. J.L. PUB. POL’Y 385 (2012) ..............................14

Alison L. LaCroix & Jason Merchant, Beyond

intuitions, algorithms, and dictionaries:

historical semantics and legal interpretation,

Univ. of Chicago, Neubauer Collegium

Workshop on Historical Semantics & Legal

Interpretation (May 22-23, 2017) ..................... 19, 20

Alison L. LaCroix, Historical Semantics and the

Meaning of the Second Amendment, The

Panorama (Aug. 3, 2018) ...... 5, 9, 13, 14, 17, 18, 19, 20

Thomas R. Lee & Stephen C. Mouritsen,

Judging Ordinary Meaning, 127 YALE L.J.

788 (2018) .................................................... 6, 7, 8, 10

Jennifer L. Mascott, Who Are “Officers of the

United States”?, 70 STAN. L. REV. 443 (2018) ..... 8, 12

Tony McEnery & Andrew Wilson, Corpus

Linguistics: An Introduction (2d ed. 2001) ..............5

Darrell A.H. Miller, Second Amendment

Equilibria, 116 NW U. L. REV. 239 (2021) ..............21

TABLE OF AUTHORITIES—Continued

Stephen C. Mouritsen, Hard Cases and Hard

Data: Assessing Corpus Linguistics as an

Empirical Path to Plain Meaning, 13 COLUM.

SCI. & TECH. L. REV. 156 (2011) ..............................12

Thomas Paine, Common Sense (1776) .......................17

James C. Phillips et al., Corpus Linguistics &

Original Public Meaning: A New Tool To

Make Originalism More Empirical, 126 YALE

L.J. FORUM 21 (2016) ........................... 8, 9, 11, 12, 21

Guillaume Thomas François Raynal, A

Philosophical and Political History of the

British Settlements and Trade in North

America (2d ed. 1779)..............................................18

Readex, America’s Historical Newspapers, https://

www.readex.com/sites/default/files/productflyers/

AHN-readex-flyer.pdf.................................... 11, 12, 19

Lawrence M. Solan, Can Corpus Linguistics

Help Make Originalism Scientific?, 126 YALE

L.J. FORUM 57 (2016) .................................................9

Lawrence M. Solan & Tammy Gales, Corpus

Linguistics as a Tool in Legal Interpretation,

2017 B.Y.U. L. REV. 1311 (2017) ......................... 9, 10

BRIEF FOR CORPUS LINGUISTICS

PROFESSORS AND EXPERTS

SUPPORTING RESPONDENTS

Dennis E. Baron, Alison L. LaCroix, Stefan Th.

Gries, and Jason Merchant respectfully submit this

brief as amici curiae in support of respondents.1

INTEREST OF AMICI CURIAE

Amici curiae are professors and experts in the

fields of linguistics, law, and legal history. They file this

brief on behalf of themselves as individuals, not as representatives of any institution.

Dennis E. Baron, Ph.D., is a Professor of English

and Linguistics, emeritus, at the University of Illinois.

Professor Baron has written extensively about language and grammar, and he is an expert in the areas

of English language history and structure, the technologies of communication, and language and law. Professor Baron’s recent work has focused on the use of

corpus linguistics to understand the meaning of the

Second Amendment.

Alison L. LaCroix, J.D., Ph.D., is the Robert Newton Reid Professor of Law at the University of Chicago

Law School, and an Associate Member of the University of Chicago Department of History. Professor

No counsel for a party authored this brief in whole or in

part, and no person other than Amici or their counsel made a

monetary contribution to its preparation or submission. Petitioners and respondents granted blanket consent for the filing of amicus curiae briefs.

LaCroix is a scholar of American legal history, specializing in constitutional law, federalism, and eighteenthand nineteenth-century legal thought. Professor

LaCroix has also written about corpus linguistics and

the study of Founding-era texts.

Stefan Th. Gries, Ph.D., is a Professor of Linguistics in the Department of Linguistics at the University

of California, Santa Barbara, and Chair of English

Linguistics at the Justus-Liebig-Universität Giessen.

Between 2013 and 2017, he was a Visiting Chair of the

Centre for Corpus Approaches to Social Science at Lancaster University, and between 2007 and 2019, he was

a Visiting Professor at five Linguistic Society of America Linguistic Institutes. Professor Gries publishes

widely in quantitative corpus linguistics and has been

involved in research and briefs on the ordinary meaning of words and phrases in legal texts.

Jason Merchant, Ph.D., is Vice Provost and the

Lorna P. Straus Professor, Department of Linguistics

and the College at the University of Chicago. Professor

Merchant’s primary research area is syntax and its

interfaces with morphology and with semantics. Professor Merchant has researched corpus linguistics

applied to historical semantics and legal interpretation.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Petitioners ask this Court to stretch the Second

Amendment well beyond its textual and historical confines. They claim that the Second Amendment secures

an essentially inviolable right to carry concealed weapons outside the home for “self defense.” They base that

claim on this Court’s decisions in District of Columbia

v. Heller, 554 U.S. 570 (2008), and McDonald v. City of

Chicago, 561 U.S. 742 (2010), and on Founding-era legal treatises and nineteenth-century judicial interpretations of the right to bear arms.

Overwhelming historical evidence about the

meaning of the Second Amendment’s text to ordinary

Founding-era voters contradicts that claim. 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.

Rather, the evidence demonstrates that the phrase

possessed a collective, militaristic meaning at the

Founding. And consistent with that collective, militaristic meaning, the corpora confirm that ordinary

Founding-era voters would have understood that the

right to keep and bear arms was subject to regulation.

This new historical evidence undermines petitioners’ theory that the Second Amendment entitles citizens to carry concealed firearms in public without any

government oversight. It cautions against expanding

the right recognized in Heller. And it shows that New

York’s regulation of firearms comports with the Second

Amendment’s original meaning.

ARGUMENT

A. Corpus Linguistics Provides Previously

Unavailable Guidance On The Meaning

Of The Second Amendment

1. Far more Founding-era texts are

more readily available today than

when the Court decided Heller

In the decade since this Court decided Heller, the

readily available historical resources about the meaning and usage of the Second Amendment’s phrase

“keep and bear arms” have expanded dramatically.

Heller made clear that the Second Amendment must

be given the meaning it had to ordinary voters when it

was ratified. 554 U.S. at 576-77. Yet when this Court

decided Heller, it could find “few examples” from “the

founding period” to shed light on the meaning of

“keep arms.” Id. at 582-83; id. at 586-88 (similar for

“bear arms”).

Today, scholars can examine a far more extensive

historical record in ways that were “technologically

impossible in 2008 when Heller was decided.” Josh

Blackman & James C. Phillips, Corpus Linguistics

and the Second Amendment, Harv. L. Rev. Blog

(Aug. 7, 2018).2 Indeed, new research has enhanced

the historical and linguistic understanding of the

Second Amendment’s text by allowing researchers to

analyze vast quantities of newly digitized historical

texts from the Founding era. Ibid. Those texts contain copious examples of “keep arms” and “bear arms”

in everyday written speech from when the Second

Amendment was ratified. Dennis Baron, Corpus

Evidence Illuminates the Meaning of Bear Arms,

46 HASTINGS CONST. L.Q. 509, 510-13 (2019); Alison L.

LaCroix, Historical Semantics and the Meaning of the

Second Amendment, The Panorama (Aug. 3, 2018).3

2. Corpus linguistics permits greater

research into historical texts

Much of the relevant research has come in the

field of corpus linguistics. Corpus linguistics is “the

study of language based on examples of ‘real life’

language use.” Tony McEnery & Andrew Wilson,

Corpus Linguistics: An Introduction 1 (2d ed. 2001).

https://blog.harvardlawreview.org/corpus-linguistics-andthe-second-amendment.

http://thepanorama.shear.org/2018/08/03/historical-semanticsand-the-meaning-of-the-second-amendment.

“[D]eveloped over the past several decades to support

empirical investigations of language variation and

use,” corpus linguistics uses “both quantitative and

qualitative analytical techniques” to study “a large

and principled collection of natural texts, known as

a ‘corpus.’ ” Douglas Biber, Corpus-Based and CorpusDriven Analyses of Language Variation and Use, in

THE OXFORD HANDBOOK OF LINGUISTIC ANALYSIS 193-95

(Bernd Heine & Heiko Narrog eds., 2d ed. 2015).

Corpus linguistics uses a variety of objective,

empirical methods to perform “tasks that cannot be

performed by human linguistic intuition alone.”

Thomas R. Lee & Stephen C. Mouritsen, Judging

Ordinary Meaning, 127 YALE L.J. 788, 831-32 (2018).

Chief among these are frequency, collocation, and keywords in context. Applying these methods produces

“ ‘research findings that have much greater generalizability and validity than would otherwise be feasible.’ ”

Id. at 828 n.170 (citation omitted).

Frequency. Measuring the frequency of a word or

phrase in a particular context is perhaps the most common tool for analyzing the meaning of language in

corpus linguistics. Stefan Th. Gries, Dispersions and

Adjusted Frequencies in Corpora, 13 INT’L J. CORPUS

LINGUISTICS 403, 403 (2008). Frequency can show,

among other things, “the importance of particular

words/grammatical patterns” and “the degree of cognitive entrenchment of particular words/grammatical

patterns.” Ibid. That is, by measuring “the statistical

frequency of words and word senses in a given speech

community and over a given time period,” researchers

can “determine empirically” whether “the ordinary

meaning of a given word” is merely “possible, common,

or the most common sense of that word in a given

context.” Lee & Mouritsen, supra, at 831-32. Hence,

corpus linguistics can shed considerable light on how

the phrase “keep and bear arms” was most commonly

understood at the Founding by studying the frequency

with which its terms are used and in what contexts.

Collocation. This method is used to study “the

tendency of words to be biased in the way they cooccur.” Susan Hunston, Corpora in Applied Linguistics

68 (2002). Collocation analyzes the statistical frequencies of the appearance of two or more words together

in a particular context (e.g., “keep arms” or “bear arms”

in the context of military service). It thus reveals “the

possible range of linguistic contexts in which a word

typically appears and can provide useful information

about the range of possible meanings and sense divisions.” Lee & Mouritsen, supra, at 832; see Caesars

Ent. Corp. v. Int’l Union of Operating Engineers Local

68 Pension Fund, 932 F.3d 91, 95 (3d Cir. 2019) (using

“collocates” method to find “the words that most often

co-occurred with ‘previously’ ”).

Keywords in context. Often referred to as

“KWIC,” this tool “allows a corpus user to evaluate

words in context systematically” by reviewing “a particular word or phrase in hundreds of contexts, all

on the same page of running text.” Lee & Mouritsen,

supra, at 832. “The core idea underlying KWIC analysis

is to examine the context surrounding uses of the

term or phrase under review as the term was actually

employed in spoken or written English during the relevant time period.” Jennifer L. Mascott, Who Are

“Officers of the United States”?, 70 STAN. L. REV. 443,

467 (2018) (describing KWIC as a “corpus linguistics

technique” that is “particularly relevant to statutory

and constitutional interpretation”). So, for example,

analysts can use the KWIC function to learn how the

terms “keep” and “bear” were used in the context of

firearms and other weapons at the time of the Founding. In doing so, KWIC analysis illuminates “the

occurrences of a chosen word with its surrounding context.” Douglas Biber et al., Corpus Linguistics:

Investigating Language Structure and Use 26 (1998).

Using these objective, empirical tools, corpus linguistics enables systematic analyses of language in

historical texts. This provides “meaningful and quantifiable insight about the range of possible uses of a

word and the frequency of its different senses.” Lee &

Mouritsen, supra, at 832.

3. Corpus linguistics researchers use

databases that are vast, diverse, and

neutral

Corpus linguistics researchers apply the methods

of frequency, collocation, and keywords in context to a

corpus. “A corpus, in linguistic terms, is merely a

searchable body of texts used to determine meaning

through language usage.” James C. Phillips et al.,

Corpus Linguistics & Original Public Meaning: A

New Tool To Make Originalism More Empirical,

126 YALE L.J. FORUM 21, 23 (2016). “Lawyers use

corpora on a daily basis. In a sense, Google and

Westlaw or Lexis are corpora.” Ibid.; see Muscarello v.

United States, 524 U.S. 125, 129 (1998) (“[W]e have surveyed modern press usage, albeit crudely, by searching

computerized newspaper databases.”). “But a linguistdesigned corpus is more than just a big database. Because linguist-designed general corpora have a balance of different genres of texts, one can obtain a more

representative slice of language usage and meaning.”

Phillips et al., supra, at 23.

Importantly, a corpus of historical texts “is neutral in the sense that those whose writing contributes

to it had no agenda with respect to the constitutional

debates that occur now, some 250 years after the

texts were written.” Lawrence M. Solan, Can Corpus

Linguistics Help Make Originalism Scientific?,

126 YALE L.J. FORUM 57, 59 (2016). As Judge Hardiman

explained, courts “can use corpora to perform analyses

unavailable in standard sources like dictionaries.

These analyses include measuring, in a given speech

community over a given time, the statistical frequency

of a word and the linguistic contexts in which it appears.”

Caesars, 932 F.3d at 95 n.1. Indeed, by analyzing the

use of a word or phrase in these corpora, courts and

researchers can gather objective, empirical information about “which meanings were possible at a

given time, and what their relative distribution and

frequency were.” LaCroix, supra.

Corpora generally come in one of two types:

“general and specialized.” Lawrence M. Solan &

Tammy Gales, Corpus Linguistics as a Tool in Legal

Interpretation, 2017 B.Y.U. L. REV. 1311, 1337 (2017).

General corpora are usually “large (frequently millions

to billions of words) and usually aim to capture a range

of registers that are representative of a common language variety.” Ibid.; see Lee & Mouritsen, supra, at

830 (“A general corpus endeavors to represent the language used by a broad (often national) speech community.”). Specialized corpora, by contrast, “are typically

smaller (frequently thousands to millions of words)

and focus on a more specific or less accessible variety

of language.” Solan & Gales, supra, at 1337; see Lee &

Mouritsen, supra, at 830-31 & n.180 (special corpora

are often “limited to a particular genre, register, or dialect,” e.g., “a corpus of recorded Egyptian Arabic telephone calls”).

Today, corpus linguistics relies on various databases comprising a multitude of different and varied

sources. Important research has been performed, for

example, on Google Books, a corpus containing more

than 25 million sources digitized in partnership with

over 40 libraries, including Columbia University, Harvard University, the New York Public Library, and Oxford University.4 The same is true of Readex, a corpus

of early American newspapers dating back to 1690 curated by a “distinguished academic advisory board” in

“partnerships with the American Antiquarian Society,

Google, Library Partners—Google Books, Google, https://

www.google.com/googlebooks/library/partners.html.

the Library of Congress, the Wisconsin Historical Society and more than 90 other institutions.”5

Additionally, Brigham Young University recently

unveiled two groundbreaking corpora: the Corpus of

Founding-Era American English (“COFEA”) and the

Corpus of Early Modern English (“COEME”). COFEA

includes over 120,000 texts and 154 million words

drawn from sources between 1760 and 1799, and

COEME includes 40,000 texts and close to 1.3 billion

words from sources dating back to 1475. Specifically,

COFEA contains: (1) The National Archive Founders

Online, which contains over 90,000 records, including

documents from Washington, Franklin, Adams, Jefferson, Hamilton, and Madison; (2) HeinOnline, which includes federal and state statutes, executive reports,

and Founding-era treatises; (3) Evans Early American

Imprints, which contains over 3000 written documents

from 1760 and 1799; (4) Elliot, The Debates in the

State Conventions on the Adoption of the Federal Constitution; (5) Farrand, Records of the Federal Constitutional Convention of 1787; (6) United States Statutesat-Large from the first five Congresses.

As commentators have observed, “[t]he use of a

corpus-like database to do originalist research is not

new. After all, combing through the debates on the federal convention or the Federalist Papers is a form of

corpus-based originalism.” Phillips et al., supra, at 26

(citing Randy E. Barnett, New Evidence of the Original

Readex, America’s Historical Newspapers, https://www.

readex.com/sites/default/files/productflyers/AHN-readex-flyer.pdf.

Meaning of the Commerce Clause, 55 ARK. L. REV. 847,

856-63 (2003), which surveyed uses of the term “commerce” in the Pennsylvania Gazette from 1728 to 1800).

Still, as recently as 2011, corpus-based techniques had

“rarely been brought to bear on the legal question of

ordinary meaning.” Stephen C. Mouritsen, Hard Cases

and Hard Data: Assessing Corpus Linguistics as an

Empirical Path to Plain Meaning, 13 COLUM. SCI. &

TECH. L. REV. 156, 161-62 & n.21 (2011).

But all that has changed now that courts and researchers can analyze the use of language in hundreds

of thousands of Founding-era sources. Jennifer L.

Mascott, supra, at 466-67 (“More tools than ever before

are at the disposal of originalist interpreters with the

recent adaptation of corpus linguistics techniques to

constitutional and statutory interpretation.”). And of

particular relevance here, corpora, “usually tens or

hundreds of millions of words in size, can help with the

small sample sizes that have usually plagued originalist research.” Phillips et al., supra, at 23. Corpus linguistics thus provides a potentially indispensable tool

for understanding the Constitution’s original meaning.

Carpenter v. United States, 138 S. Ct. 2206, 2238-39 &

nn.4-5 (2018) (Thomas, J., dissenting) (citing corpus

linguistics research from COFEA, Google Books, and

Readex); Lucia v. SEC, 138 S. Ct. 2044, 2056-57 (2018)

(Thomas, J., concurring) (citing corpus linguistics research in Mascott, supra).6

See, e.g., Caesars, 932 F.3d at 95 n.1 (“Corpus linguistics

describes language empirically.”); People v. Harris, 885 N.W.2d 832,

B. Ordinary Use Of “Keep” And “Bear”

Arms At The Founding Confirms That

Any Right To Bear Arms Was Highly

Regulated

In concluding that the Second Amendment protects an individual right to possess a firearm, this

Court in Heller never suggested the right was unfettered. Rightly so. Newly available corpus-linguistics

evidence shows that ordinary voters at the Founding

understood the Second Amendment’s text to allow governments broad authority to regulate firearm possession.

1. Bear arms was frequently used in the

military context, with little reference

to individual rights

Consistent with its military origins, the phrase

“bear arms” has a collective connotation, typically

referring to “the act of soldiering and the use of

weapons in war.” Baron, supra, at 513; LaCroix,

supra. Since Heller was decided, corpus-linguistics

838-39 & n.29 (Mich. 2016) (using “corpus linguistics” as “a tool

that can aid in the discovery of ‘how particular words or phrases

are actually used in written or spoken English’ ”); Fire Ins. Exch.

v. Oltmanns, 416 P.3d 1148, 1163 n.9 (Utah 2018) (Durham, J.,

concurring in part, concurring in the result) (“In the field of corpus

linguistics, scholars determine those meanings that are consistent with common usage, or the term’s ordinary or most frequent meaning based on empirical data rather than personal

intuition.” (quotations and alterations omitted)); Wilson v. Safelite Grp., Inc., 930 F.3d 429, 445 (6th Cir. 2019) (Thapar, J., concurring in part, concurring in the judgment) (“[C]orpus linguistics

can help courts as they roll up their sleeves and grapple with a

term’s ordinary meaning.”).

researchers have discovered a voluminous body of evidence reinforcing that collective, militaristic meaning

of “bear arms.” Baron, supra, at 514; LaCroix, supra.

This research suggests that some greater emphasis

should be afforded the Second Amendment’s “prefatory” language—“A well regulated Militia, being necessary to the security of a free State.” Jeffrey P.

Kaplan, Unfaithful to Textualism, 10 GEO. J.L. PUB.

POL’Y 385, 414, 423, 426 (2012) (explaining that, linguistically, the prefatory clause or “absolute provides

the basis for the guarantee of the main clause”). And

it suggests that “bear arms” was best understood at the

Founding to convey a role for local regulation of firearm possession. After all, a collective, militaristic

meaning suggests the focus of the right was on the

community’s interests. In other words, those at the

Founding would have understood that any individual

right to bear arms was subject to the control of others,

consistent with the ordinary understanding of a military chain of command.

Consider, for example, COFEA and COEME. A

survey of those corpora revealed that both legal and

non-legal texts in the Founding-era “almost always

use bear arms in an unambiguously military sense.”

Baron, supra, at 510-11. Out of nearly 1,000 examined

uses of “bear arms” in “seventeenth- and eighteenthcentury English and American texts,” “roughly 900

separate occurrences of bear arms before and during

the founding era refer to war, soldiering, or other forms

of armed action by a group rather than an individual.”

Ibid. Representative examples include—

•

“Let us consider those that bear ARMS under

our PRINCES, with how much Order and

Submission they execute their Command.”

[1748].

•

“The number of the Enemies that bear Arms,

according to the truth, was about forty thousand more or less.” [1700].

•

“I may say with truth all Weymouth, Braintree,

Hingham, who were able to bear Arms, and

hundreds from other Towns within 20, 30, and

40 miles of Weymouth.” [1775].

•

“[T]hat Numbers of the Inhabitants murmur

at being Obliged to bear Arms; and the dread

of a French War is very General.” [1777].

•

“[A]ll male persons, from sixteen years of age

to fifty, shall bear arms, and duly attend all

musters, and military exercise of the respective troops and companies.” [1760].

•

“Those who conscienciously scruple to bear

arms, shall not be compelled to do so; but shall

pay an equivalent for personal service.”

[1792].

Id. at 511 (citing COFEA and COEME, BYU Law &

Corpus Linguistics).7 And as those representative examples illustrate, usage of “bear arms” commonly reflected control by others, coupling “bear arms” with

phrases like “execute their Command,” “murmur at

being Obliged,” and “duly attend all musters, and

COFEA, https://lawncl.byu.edu/cofea; COEME, https://lawncl.

byu.edu/coeme.

military exercise of the respective troops and companies.” Ibid.

Even examples that were “at best ambiguous” still

“suggest[ ] a military or quasi-military sense of bearing

arms.” Id. at 512. More importantly, these examples

show that the bearing of arms was subject to regulation, including limitations on where those arms might

be carried—

•

“That no person shall use or bear any Arms

within London, and the Suburbs, or in any

place between the said City and Pallace of

Westminster, nor in no other part of the Pallace by Land or by Water, except such of the

Kings people, as he shall appoint to keep the

Kings peace.” [1657].

•

“A Peasant in this Country (unless in time of

great Danger or Invasion) is not suffered to

bear Arms.” [1689].

•

“That every Person who will go for Ireland on

these Conditions, shall out of his first share of

Money, buy for himself and every Relation and

Servant that he carries with him (who are

able to bear Arms,) a good Musket, or Case of

Pistols for the defence of his Family.” [1690].

•

“That the People have a Right to bear Arms

for the Defence of themselves and the State,

and as standing Armies in the Time of Peace

are dangerous to Liberty, they ought not to be

kept up: And that the Military should be kept

under strict Subordination to, and governed

by, the Civil Power.” [1776].

•

“To protect the people against the violence of

those who bear arms [i.e., officers and gentlemen who carry their swords in peacetime],

and to punish them severely, if they shall dare

to insult them, might still be, as it is at present, the business of the magistrate.” [1787].

Id. at 512-13; see id. at 518-22 (discussing these examples in greater detail “to show their ambiguity, their

relation to the normal, military sense of bear arms, and

their appearance in the context of weapons regulation”).

Nearly identical evidence is found in other corpora. Publications from 1760 to 1795 in Google Books

revealed that “bear arms” was used 67.4% of the time

in a collective rather than an individual sense. LaCroix, supra. This includes using “bear arms” in a collective sense with a plural subject (e.g., “Slaves were

not permitted to bear arms”), as well as using the

phrase in a collective sense with a singular subject

(e.g., “when a slave was made free, a spear was put into

his hand, and he was thenceforward permitted to

bear arms, and subjected to military services”). Ibid.

(quoting 4 Robert Henry, The History of Great Britain

142 (2d ed. 1788)). Other representative examples include—

•

“Wherefore, if ye really preach from conscience, and mean not to make a political hobbyhorse of your religion convince the world

thereof, by proclaiming your doctrine to our

enemies, for they likewise bear arms.” Thomas

Paine, Common Sense (Appendix) (1776).

•

“In this town is a barrack for two companies

of foot; and at the arrays in 1746, here were

a thousand protestants fit to bear arms.”

Jonathan Carver, The New Universal Traveler

553 (1779).

•

“[H]e is exposed to the scorching heat of the

sun, the intense frosts of the night, or the

bloody slings of insects, he would be declare

incapable and unworthy to bear arms. Are

our militias and armies formed in this manner?” Guillaume Thomas François Raynal,

A Philosophical and Political History of the

British Settlements and Trade in North

America 174-75 (2d ed. 1779).

By contrast, researchers found no evidence that

similar language was used in the individual sense of

“bear an arm” or “bear a weapon.” To be sure, the

phrase “bear arms” was on rare occasion used in an individual sense with a singular subject (e.g., “I’ll fire his

blood by telling what I did/When I was strong, and able

to bear arms”). LaCroix, supra (quoting Samuel Johnson, The Works of English Poets (1779)). Yet no corpus

evidence from the Founding era indicated that “bear”

had an individualized connotation in the context of

firearms generally, revealing no instances of any of

the following phrases—

•

“Bear a rifle”

•

“Bear a musket”

•

“Bear a pistol”

•

“Bear a knife”

•

“Bear rifles”

•

“Bear muskets”

•

“Bear pistols”

Contrary to the criticisms of some amici—criticisms based not on scholarship but attorney argument—these findings from corpus linguistics reflect

more than the understanding of some alleged “elite.”

For one, many of the books, pamphlets, and broadsides

written in the Founding era and collected in COFEA

and COEME were read by members of the general

public, not just by “elites.” Dennis Baron, Corpus

linguistics, public meaning, and the Second Amendment, The Web of Language (July 20, 2021).8

Plus, other corpora of texts aimed squarely at the

general public reveal the same thing. Searching for instances of “bear arms” in newspapers from 1700-1800

in four databases—newspapers.com, Readex America’s

Historical Newspapers, the British Library’s britishnewspaperarchive.co.uk, and the Library of Congress’s

chroniclingamerica.loc.gov—shows that “bear arms”

rarely appears outside of a clearly military context.

Ibid.

The results from Readex are particularly “dramatic.” LaCroix, supra. Those sources revealed that

more than 86% of the uses of “bear arms” in newspapers between 1760 and 1795 were collective. Alison

L. LaCroix & Jason Merchant, Beyond intuitions

algorithms, and dictionaries: historical semantics

https://blogs.illinois.edu/view/25/1148667894

and legal interpretation, Univ. of Chicago, Neubauer

Collegium Workshop on Historical Semantics & Legal

Interpretation (May 22-23, 2017).9 In stark contrast,

individual uses with a singular subject accounted for

less than 12% of known uses of “bear arms” in those

same newspapers, as shown in the chart below:

Ibid. “For most ordinary citizens in the founding generation, then, the phrase ‘bear arms’ referred to an activity undertaken by groups of people, not only by

individuals.” LaCroix, supra.

Although some armchair linguists try to dismiss

this evidence, too, as merely reflecting what was “newsworthy,” the fact remains that all evidence from contemporary writings at the Founding points to the same

conclusion—“[n]on-military uses of bear arms in reference to hunting or personal self-defense are not just

pdf.

https://home.uchicago.edu/~merchant/pubs/NeubauerLecture.

rare, they are almost nonexistent.” Baron, supra, at

510. For that reason, “[e]ven scholars sympathetic to

expansive gun rights acknowledge that the text’s original public meaning is not on their side.” Darrell A.H.

Miller, Second Amendment Equilibria, 116 NW U. L.

REV. 239, 242 (2021). Instead, the evidence confirms

“that the plain, ordinary, natural, and original meaning of bear arms in the eighteenth century was ‘carrying weapons in war,’ or in other forms of group offense,

defense, or rebellion.” Baron, supra, at 510. And for

all the reasons explained, that meaning reflects an ordinary understanding that any individual right to bear

arms would be subject to control.

2. Keep arms often suggested military

context and the limited individual

uses support that carrying firearms

was often subject to restrictions

The same is true of “keep arms.” The Heller Court

noted that “ ‘keep arms’ was not prevalent in the written documents of the founding period that we have

found.” 554 U.S. at 582. But corpus linguistics has

greatly expanded the historical record. Blackman &

Phillips, supra (recognizing Heller “suffered from a

lack of access to a large enough corpus to answer the

linguistic questions presented” and the Court “implicitly recognized the deficiency of studying a limited

range of materials”).

Corpus evidence reveals that in Founding-era

sources, “keep arms” “almost always appears in a military context,” again reflecting that the right was tied

to community interests and subject to control. Baron,

supra, at 513. The phrase appeared 28 times in

COEME and 10 times in COFEA, and after excluding

duplicates and irrelevant entries (e.g., where “keep”

meant “prevent”), researchers found that 25 of the remaining examples “refer to weapons for use in the military or the militia.” Ibid. Representative examples

include:

•

“It now being thought not necessary to view

the arms and ammunition of those obliged to

keep arms more than once a year.” [1776].

•

“Companies being notified by their respective

commanding Officers that he is about to lead

them * * * and in Case of the Infantry, the

householders, and others by Law obliged to

keep Arms, at least three Days before such

Choice.” [1776].

•

“An armory to keep arms for the defence of the

place.” [1688].

•

“[Freemen] were bound to follow their Lords

to the Wars, and many were Voluntiers, yet it

seems all were bound upon call under peril of

Fine and were bound to keep Arms for the

preservation of the Kingdom, their Lords, and

their own persons.” [1689].

•

“[Protestants] were bound to keep Arms and

Defend themselves and their Country from

the power of the Popish Natives which were

then Armed against them.” [1691].10

Research on file with Professor Baron.

This evidence, showing that “keep arms” was used

“almost exclusively in a military context” at the

Founding, reinforces the Second Amendment’s collective connotation. Baron, supra, at 513. And it also

reinforces that the right and responsibility of keeping

arms could not be exercised wholly unilaterally, but

was subject to regulation, referring to those “obliged

to keep arms” and follow their “commanding Officers”

or “Lords.”

Other analysts have uncovered similar evidence.

Professors Blackman and Phillips found “roughly 200

results” in COFEA of “the word ‘keep’ (and its variants,

‘keeping,’ ‘kept,’ etc.) within four words of ‘arm’ or

‘arms.’ ” Blackman & Phillips, supra. After omitting irrelevant results and duplicates, they found that, of the

18 texts they reviewed, “about half referred to keeping

arms in the military context, roughly a quarter referred to a private sense of keeping arms, and another

quarter or so were ambiguous references.” Ibid. This

evidence likewise provides reason to preserve the ordinary, collective meaning of “keep arms,” rather than

adopt a new meaning of an unbridled, individual right.

CONCLUSION

The judgment of the Second Circuit should be affirmed.

Respectfully submitted,

JAMIE A. LEVITT

JANIE C. BUCKLEY

MORRISON & FOERSTER LLP

250 W 55th St.

New York, NY 10019

BRIAN R. MATSUI

Counsel of Record

SETH W. LLOYD

MORRISON & FOERSTER LLP

2100 L St., NW, Ste. 900

Washington, DC 20037

(202) 887-8784

BMatsui@mofo.com

Counsel for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.