If you’re reading this, you’re probably aware that I’ve done a linguistic analysis of the main clause of the Second Amendment (“the right of the people to keep and bear Arms shall not be infringed”). I argued that in light of corpus data from the founding era, the Supreme Court in District of Columbia v. Heller was mistaken about how “the right of the people to … bear arms” was likely to have been understood when the Second Amendment was ratified.
My analysis was presented in a series of blog posts that was completed ten months ago, which I then compiled into a single document that I posted online (PDF). Until recently, my analysis was unchallenged: aside from a dismissive tweet or two, nobody had published or posted anything taking issue with my conclusions or with the underlying analysis. But in the last month or so, two critical responses have appeared.
The first of those responses was a law review article by Josh Jones, who is currently a law clerk at the Utah Supreme Court, and the second appears as part of an amicus brief filed in a Second Amendment case pending on rehearing en banc before the Ninth Circuit. The brief was on behalf of a number of law professors and advocacy organizations (listed at the end of this post), all of them being gun-rights advocates.
The article and the brief both take issue with my conclusion about the founding-era meaning of bear arms, but to differing degrees. Jones disagrees with my reading of the corpus data in some respects, while agreeing with it in others. The brief, on the other hand, takes the position that I’m flat-out wrong.
I’ll discuss the brief here and Jones’s article in my next post, but I will say up front that neither document provides any reason to think that I’m mistaken in my ultimate conclusion about Heller. And while Jones makes a serious effort to engage with the data and with my arguments, the brief is an exercise in obfuscation.