[MUSIC PLAYING]
DARRELL MILLER: Hello, my
name is Darrell Miller.
I'm the Melvin G Shimm Professor
of Law at Duke Law School.
And I'm co-director of the
Center for Firearms Law
here at Duke Law School.
Welcome to a panel on Corpus
Linguistics, Constitutional
Interpretation and the
Right to Keep and Bear Arms.
This panel is sponsored by
Duke's Center for Firearms Law
and co-sponsored by Duke's
Federal Society and American
Constitution Society.
We've rescheduled
this event from March
in light of the coronavirus
and taken it online.
And I'm extremely appreciative
to our two distinguished
guests who are willing to
participate via Zoom today.
Our first guest
is Neal Goldfarb.
He's the Dean's Visiting
Scholar at Georgetown Law School
and a litigator with almost
40 years of experience
as a blogger on Law
and Linguistics,
a blog dedicated to linguistics
and legal interpretation.
Our second guest is our own
Stephen Sachs, professor
of law at Duke Law School and an
expert on legal interpretation,
civil procedure, constitutional
law, and legal theory.
Constitutional interpretation
has increasingly
turned to history and a
close reading of the text
to decipher meaning.
Scholars have begun mining
newly available databases
called a corpus, that
contains thousands
of works and millions of
words from the founding era
to shed light on questions
about the typical use of words
at the time the Constitution
was drafted and ratified,
including the Second Amendment
rights to keep and bear arms.
We're here to discuss the
role of these new big data
techniques in constitutional
interpretation.
But first, I want to frame
out the nature of the debate,
both with respect to the
constitutional interpretation
and the Second
Amendment in particular.
Now originalism is a term
that's frequently used,
but what is it?
Well, the genealogy
of originalism
is frequently tied to a speech
that Attorney General Ed
Meese made to the
American Bar Association
in 1985, advocating for a
constitutional interpretation
of original intention,
that is an examination
of the intentions of the
framers of the Constitution
to see what they intended
the Constitution to mean.
The idea of originalists
was to attempt
to take the discretion
out of the hands of judges
and make the law more objective.
Original intentions as a
theory of interpretation
suffered some major
theoretical problems, however.
First, the intentions
of one person
may be difficult to discern
and unstable over time.
And multiply it over the entire
Constitutional Convention of 55
delegates, it becomes
even more difficult.
Second, it's not the
intentions of James Madison
or the convention goers
that makes the Constitution
law, its we the people
of the United States.
Now eventually
originalism moved away
from a search for
intentions and then began
as a search for meaning.
That is, the
constitutional law was not
the intentions of the
enactors of the Constitutional
Convention, but it is
commonly understood
as what did the
meaning of the words
mean at the time they
were ratified in 1791.
This became known as original
public meaning originalism.
Now originalism as a public
meaning type of originalism
was applied in the 2008 decision
District of Columbia vs Heller.
This was the first Supreme
Court case in 200 years
to hold that the right
to keep and bear arms
was an individual right for
personal purposes of arms
unassociated with an
organized militia.
Now the text of that amendment,
the Second Amendment,
is a short 27 words and states,
"A well regulated militia
being necessary to the security
of a free state, the right
of the people to keep and bear
arms shall not be infringed."
Justice Scalia wrote
for the majority
and held that the original
public meaning of those terms
would have been, The
right of the people
to keep and bear arms was the
same today as it was in 1791,
a right to possess and carry
arms for personal purposes."
Justice Stevens wrote a dissent
and also used public meaning
originalist methods.
He saw evidence instead that
the founding generation of 1791
would have understood the
terms keep and bear arms
to have a military meaning
associated with a militia,
and that the terms,
"keep and bear arms,"
had not changed since that time.
That brings us to our panelists.
And I'll begin with Neal.
So when Heller was
decided, the parties
were working with a limited
set of documents, perhaps 115
at the most.
But we now have
access to thousands
of records and millions
of words in a corpus.
Can you tell us a little
about what A Corpus is
and how is it relevant
to this public meaning
originalism in general ad to
the debate over the Second
Amendment in particular?
NEAL GOLDFARB: Sure,
and first of all,
let me thank you very
much for having me here.
It's a pleasure and an honor
to be, especially on a panel
with Steve, and having such
a prominent moderator also.
Corpus linguistics is the name
of a field of linguistics.
And the database of
text is called a corpus,
and the plural of
that is corpora.
The corpora that we
use for this purpose,
for this kind of
analysis was put together
by Brigham Young
Law School, which
has gotten very big into
purpose corpus linguistics.
And it consists of about--
I think it's about a third
of all of the printed
documents that have
survived and available
from the founding era.
So it's a very large
group of texts.
And what a corpus--
the interface, it's available
for free on the web--
it's set up in a
way that enables
you to do linguistically
oriented searches.
So one of the things that
you can do, for instance,
is you can run through hundreds
of lines using bear arms,
or arms were borne,
or they were bearing
arms, any combination like that,
and it's sort of a spreadsheet,
and you can just run down--
bear arms would be
in the middle column,
and the context
is on either side.
So it's very simple
to run down quickly
and categorize things
as you go, much more--
it would be impossible to do
just with the actual documents.
So using that as a
resource, what I did was-
and other people have done this
also, including Dennis Baron,
who was one of the amici in
Heller, the linguist amici--
is to look at the
corpus data using
the original public
meaning perspective that
was used in Heller
to see how would
those terms have likely
been understood by people
at the end of the 18th century.
And the most important
piece of the results
was that bear arms was not
usually understood to mean
carry weapons, which is what--
not usually used.
We refer from that that
it wasn't understood,
but what we have is
the evidence of usage.
But it certainly was not usually
used to mean carry weapons.
It was used in a
figurative sense
to refer to fighting
in the military,
being in a war, or
something like that.
And I think, what I would
argue, is that it actually
was probably understood to
mean being in a militia,
because that was-- when
you actually look at some
of the old militia statutes.
They will talk about bearing
arms and being in the militia.
It's essentially synonymous.
So my take on it--
and this has-- none
of what I've found
has been disputed by the
gun rights advocates.
But what I found is that the
ordinary use of bear arms
was in a military sense, not
in the personal self-defense
sense, which is
contrary to Heller.
There were also--
I look at other issues.
There are a few things that
I think are some ambiguity,
but that doesn't really
help to support Heller,
because Heller said we
don't look at the preamble--
a well-regulated militia being
necessary to the security
of the free state.
We don't look at that unless
the main clause is ambiguous.
And Heller found it
was not ambiguous.
Well, I think at worst, at
a minimum, it was ambiguous.
It's not clearly
military reading.
And the ambiguity means you look
at the preamble, which I think
means that Heller is wrong.
That doesn't resolve how
the Second Amendment would
be interpreted, but it
does suggest to me that we
need to go back to square one.
DARRELL MILLER:
Great, thanks Neal.
Steve, you're the leading
advocate, or at least
the scholar on an
alternative to what
we might think of as original
public meaning, originalism,
something that you and
Will Baude at Chicago
have termed original
law originalism.
Maybe you can help us understand
the terms of the debate,
the distinction between original
public meaning originalism
and what you describe as
original law originalism,
and how does that
play out with respect
to this question about
how we are to interpret
the words "keep and bear arms."
STEPHEN SACHS: Sure thing.
So first of all, thank you
to Darrell for having me,
and to Neal, and for our
sponsors for organizing this.
The approach of
original public meaning
has generally been
focused very much
on the meaning of the
words and the meaning
of the words in the text to the
ordinary member of the public.
The difficulty in that
is that the reason
we care about these
words in the first place
is not just because that's
how the ordinary person might
have understood them,
but because they
were legally adopted.
We care about the Second
Amendment, presumably,
because it was adopted and
has never been repealed.
And so whatever right
to keep and bear
arms it conferred in 1791,
unless something else legally
relevant happened, is the same
right to keep and bear arms
that we enjoy today.
And so the original law
approach really tries to ask,
what law was made
by this instrument
having been adopted
at a particular time
in a particular way?
Now often, the
meaning of the words
to an ordinary
member of the public
is going to be highly
relevant to that.
I mean, the two
inquirees often line up
in precisely the same way.
But sometimes they come apart.
So for instance, if
you wanted to know
about the freedom of speech
or the freedom of the press,
it would be one important
piece of information
to get out some founding era
dictionaries or dictionary
equivalents and
try and figure out
the meanings of the word
freedom, and of, and speech,
and press to ordinary people.
But it would also be really
relevant to know whether there
was a legal object at
the time, a common law,
or other freedom of speech,
or freedom of the press that
might have been entrenched
against congressional
approbation.
Now part of this is
captured linguistically,
with the idea of terms of art,
whether the freedom of speech
is a thing.
But the point is that the can
carry an awful lot of meaning.
There might be all sorts
of common law exceptions,
and incrustation, and
other things were going on.
And so the approach
of many originalists,
to focus very
closely on the text,
might be a little
too close of a focus.
It might lose some really
important legal context
that one would also
need to know in order
to answer the question, what
law was adopted as of 1791?
So for instance, in
the case of Heller,
the opinion starts off
in a textualist more
than originalist way.
And it's looking for public
meaning as of the 1790s.
But it's asking-- it
basically starts off
by defining the right to keep
and bear arms as the right
to have and carry weapons, and
only later gets into the debate
of why would anyone
have ever adopted such
a right at the time
and why would it
have the particular
shape that it might have,
and the disputes about
the meaning of the English
Bill of Rights, and
so on and so forth,
that are addressed
later on in the opinion.
But I think for an
original law approach
would be almost
the first questions
that you would want to ask--
what is this doing there?
What was the law beforehand?
What new legal rule
would it have laid down?
And what are its contours?
DARRELL MILLER:
Great, thanks, Steve.
Neal, do you want to
respond to anything
that Steve has raised here?
Steve is offering a
different kind of approach
that's not necessarily quite as
tied to the text specifically
and would use other sources.
In terms of what you discovered,
Neal, or your background
in linguistics, how do you
understand this original law
originalism in light of
these linguistic databases?
NEAL GOLDFARB: Well, I
think the issue comes
down to what are you going to
do with the information that
is generated by looking at it
just on a linguistic level.
Although, also,
you're doing it--
just on a linguistic
level, you do
need to go into some history,
because you need to know--
that helps to explain why
something, why it makes
sense that they
would have called
bear arms to mean militarily.
It explains why it's reasonable
to think that the right
to bear arms could have
been understood as a right
to be in a militia, which
Justice Scalia ridiculed.
And in fact, there's
statements in the equivalent
of the congressional record, I
guess, of congressional debates
where it's basically
used that way.
So history certainly-- you can't
do it in a vacuum of history.
But then, what you
do with that in terms
of legal interpretation
is a separate question.
That's a legal question.
So in statutory
interpretation for instance,
where I also used,
and other people also
used corpus linguistics,
a lot of people
think that's only
for textualists,
but that's not true.
Because everybody does
consider what the meaning--
the textual meaning
of our language is.
So purpose of this to use--
rely on corpus linguistics
also, but sometimes it
shows that there is not a
clear linguistic basis, which
then opens the door more
for looking at purpose.
And that one kind of
brings up my question
to Steve, which is, what
you said about discussing
the Second Amendment and
First Amendment struck
me as similar to really the
purpose of this approach, which
I think that hasn't been how
I understood your original law
approach, which more had
to do with the continuing
effects of what was in place
then, as I understood it.
But is there really-- and I'm
sure you were really focusing
on one aspect of it--
but is there a difference
really between what
you said and the purpose
of this approach?
STEPHEN SACHS: So I think
the difference is often
a purposivist approach
is taken, is figuring out
what were the purposes behind
this instrument and then
how can we advance
those purposes today.
And that's a very
different approach
than trying to figure
out, OK, what rule
did this particular
instrument lay down.
And we can figure
that out in part
because of what we know
about its purposes.
But then once we know that
rule, we've got a rule.
And then maybe it doesn't
achieve those purposes
today very much at
all, but we still
know what law it
made at the time.
So it might be, for
instance, that the idea
of a right of ordinary
people to keep weapons
that would be useful in
militia service, for example--
and that's one slightly more
militia flavored reading
of the Second Amendment
than was in Heller--
would today be a terrible idea.
Maybe would mean that
everybody gets machine guns.
Maybe nobody wants that.
But that's a very
different question
than what was the scope of
the rule as it was laid down.
NEAL GOLDFARB: Let me-- can
I follow up on that, Darrell?
How would that--
I mean, suppose--
let's assume I'm right
about Heller is wrong,
and let's assume
that Heller actually
gets reexamined in
the Supreme Court,
as long as we're just assuming.
And how would-- if
the right to bear arms
means the right to serve in the
militia, how does that play out
today when the
militia, then, was
mandatory universal service,
except for a small category
of people who were
exempt, with trainings
that people had to attend.
People had to supply
their own weapons.
It was under the
management of the state.
And the purpose of it was so we
wouldn't have standing armies.
Well, we've now got a portion
of the population that's
armed to the teeth, doesn't
submit to state regulation,
as we've seen by the people
showing up in Michigan
and various statehouses
around the country,
and we've got the rest of the
country, which really doesn't
want to particularly own guns,
and would have to learn how
to use them, and be soldiers.
And we've also got not only
the federal standing army,
we've got every one
of the 50 states
has a standing army even in
the form of state police.
Every city and county
has a standing army
in the form of a Sheriff's
department or a police
department.
So the conditions are
unbelievably different.
Not to mention the fact that
the division in the country--
if the purpose of--
if one of the purposes
of the militia
was to be as a counter-force
against central government,
how do you deal with
the fact that there's
enormous differences
about what tyranny is?
There's the people-- there are--
so how would-- so I
guess what I'm saying,
would the original law position
deal with that somehow?
Or would it just
say, well, we're
stuck with the original law
or we have the original.
I'm not going to--
STEPHEN SACHS: I
would say two things.
The first is that it's important
to remember that the Second
Amendment is not just
a right to bear arms,
it's a right to
keep and bear arms.
And the keep right--
obviously, this is disputed.
And I should make very clear,
I've studied this period some,
but I am not an expert on
founding our arms regulation.
But the keep right
seems very much
affiliated with
contemporary discussions
at the time of the founding
about whether people
would be able to have weapons.
And those weapons might
be primarily intended
for militia service.
The picture was
among many people,
we want a militia
because standing armies
are dangerous to liberty.
And so we want a well-regulated
militia, one that's
well-run, and well-trained,
and well-equipped,
and that when it gets
called up, everybody
can show up with their guns.
But there were regulations
of who could keep arms.
And those tended to be very
much in the personal possession
sense.
For instance, the
English Bill of Rights,
Protestant subjects
were allowed to have
arms suitable to their
condition and as allowed by law.
People discussed other
laws that restricted
the ability of minority
groups to keep arms.
And so keep side
of the right does
seem to be very much
associated with a right
to personal possession.
And the right to bear,
even if-- and again,
this is not my field--
but even if it were true
that the right to bear arms
is primarily one
of militia service,
it would still be
very significant
that Congress is not
allowed to narrow
the scope of the militia.
Now I should note,
even today, there's
a section of 10USC that
provides the unorganized militia
of the United States.
It includes all non-disabled
male citizens between 17
and 45, among other groups.
So there is still a sense
in which the three of us
here are all members of
the unorganized militia
of the United States,
and presumably
of our respective states.
NEAL GOLDFARB: I've aged out.
DARRELL MILLER: Can I--
STEPHEN SACHS: Oh,
sure, go ahead.
DARRELL MILLER: Go ahead
and finish your thought
and I want to inter--
STEPHEN SACHS: Just to say that
Elbridge Gerry at the founding,
worried about the
idea of Congress
using conscientious
objector clauses
to narrow the scope
of the militia
until it turned into
a select militia,
like the modern National
Guard, that only
a very tiny number of people
are actually enrolled in.
So it might well be that the
original scope of the right--
and again, this is not a
firm conclusion on my part--
was that in general, the
main body of the people
can't be prevented
from having weapons
and then being able to
use them in militias.
DARRELL MILLER: So I've got
a question for both of you.
It's a different version, I
guess, of a similar route.
Which is, so one of the appeals
and the enduring appeals
of originalism, I think
even for non-originalists,
is the promise that it takes the
politics out of judge making,
out of judicial decision making.
That is-- or at
least it reduces it.
It might not be
able to destroy it,
but it reduces the scope
of discretion for judges.
Now, there's a couple of things
that I heard in your comments
that I'd like you to
respond to in turn.
Neal, you had said
something like, well, we
might be able to sort of falsify
what keep and bear arms or bear
arms means in 1791 using
these new techniques
of looking at the corpus,
trying to figure out
what a common speaker of
English would understand,
how a common speaker of English
would have used those terms.
But that doesn't necessarily
answer the legal question.
And this is the phenomena that
Larry Solum, among others,
has said between the
interpretation and construction
division.
Now, I've got a
question for Neal,
which is what are we about in
terms of a corpus linguistics
if you don't concede
that there is
some relevance or a
necessary relationship
between the falsifiable legal
terms and the legal content?
And for Steve, I've got
a different question,
but the same route.
Which is, a theory of original
public law sounds great,
but where is the objective
falsifiable-ness of the theory?
That is, how would,
if you promote
a certain view about
what original law was,
whether it has to do with the
Second Amendment, or the First,
or the Third, or
whatever, how does one
go about falsifying the theory
that you have about what
original public law was?
It seems like you sort of put
the rabbit back in the hat
with original public law
of the kind of discretion
that originalism was
supposed to rid us of.
So you can take--
Neal, why don't you take the
question first and then Steve.
NEAL GOLDFARB: Sure.
The short answer is the
corpus linguistics really
doesn't have any role to
play in the kind of issues
that you raised.
I mean, corpus linguistics
is not a theory
of believable interpretation.
It's a method, an approach
to dealing with figuring out
textual issues, how
the language was
likely to have been understood.
Once you've done that,
I don't think the corpus
linguistics really has
that much of a relevance.
There's other aspects
of linguistics,
a philosophy of language that
can come in when you're talking
about what the word meant
versus how it is applied,
and there's various
other complications
that would feed more directly
into the legal issues.
But even then, it's
just really talking
about how you understand
the language and then what
a judge does with that,
in terms of turning that
into a legal rule is just
a matter for the law.
Linguistics doesn't-- I don't
think it has anything to say
about.
DARRELL MILLER: Steve.
STEPHEN SACHS: First of all, I
just want to make very clear,
I don't object to corpus
linguistics in general.
I think it can be a useful
tool, in the same way
that dictionaries
can be a useful tool,
indeed maybe even a better
tool than most dictionaries.
It's just that it might not be
the be-all and end-all of what
the legal inquiry is.
On the question of
constraint, and how
do we take the politics
out of judging,
how do we make it
more mechanical,
it is certainly true that
modern versions of originalism,
even original public
meaning among them,
enable a lot more
uncertainty than we're
going to see what precisely
was in Madison's head
and if he didn't think
of it, it isn't there.
Now, one argument
might be, look,
certainty is an advantage
sometimes of originalism,
but it's not the end goal.
If all you really wanted was
to have a very determinate
Constitution, then you'd
get a lot more certainty
if you just dropped the Fifth
and Fourteenth Amendments.
Those are really hard.
We can just drop
those, and then we'll
just get much more
mechanical decision making.
But nobody thinks that that
would be following the law.
Likewise, you can
take the politics out
of judging if judges just
flip coins every time.
There's no politics whatsoever,
it's just the coin flip.
But it still wouldn't
be following the law.
So the way in which original
law originalism is constraining
is to say, look,
you've got to have
a satisfactory legal argument.
You've got to be able
to show that this was
the rule as of this past time.
Now, what kind of
sources can you look to?
What kind of arguments
can you make?
There are a variety of sources.
If we were, ourselves,
we're trying
to figure out the property
law of Virginia in 1800,
and sometimes cases
have to do that,
to figure out who
owns Blackacre,
there are lots of treatises,
and statutes, and cases,
and sources that you would
look to to try and identify
what that was.
It doesn't mean there's
a magic formula or recipe
for putting all those
sources together and getting
a legal rule out, any
more than there is today,
for trying to figure out what
the property law of Virginia
is on some difficult question.
But the claim of
original originalism
is just whatever is the
right answer as of 1791
is still the right answer
today unless something legally
relevant has happened that would
change the rule that laid down.
DARRELL MILLER: Neal, do you
have any response to that?
NEAL GOLDFARB: No, well,
the only thing would be,
probably the least
important of what
Steve said, from
his point of view,
which is that dictionaries
are really problematic.
And one of the reasons
for that is demonstrated
by what we've found out
from the corpus study, which
is dictionaries are
not even a snapshot.
They're little marks
recording these are
ways the word has being used.
And it says nothing
about how common it was
and which usage was predominant.
It's just a card
catalog of usages.
So you got a very misleading
impression from the dictionary,
because even the Oxford English
Dictionary, which actually,
is the only one, I think,
that can be given any credence
to historical stuff, because
it's much better research,
but even if you were there, the
carry arms, the carry weapons
interpretation of bear
arms finds support,
just as does the be a
soldier and fight in a war.
So there's no-- it's a
coin toss between those two
as far as the dictionary goes.
When you look at
the corpus data,
it's a totally
different picture.
So I'm very--
I wouldn't say never
look in the dictionary,
but you have to really
be careful and know
what you're doing also.
STEPHEN SACHS: One thing
I would say quickly
in dictionary's defense,
although I neither bear
nor carry any brief
for dictionaries,
is that they're often phrased
in categorical terms that
can sometimes be useful.
So for instance, a
standard example is,
is an airplane a vehicle?
And this gets fought
over both sides.
There's a Supreme
Court case that says,
no it isn't for the purposes
of the National Motor Vehicle
Theft Act.
On the other hand, if
you taxi an airplane
through the middle
of a park, you
have probably violated the no
vehicles in the park ordinance.
And so the fact
that you would never
see in a corpus people
using airplane and vehicle
in the same context,
just because that's not
how we talk about it generally,
when people are presented
with a list of conveyances and
asked is an airplane a vehicle,
often they say, yes.
And so part of the--
the great use of
corpus linguistics
is it captures the
body of practices
that a good dictionary is
also trying to capture.
The downside is it may give you
less information about the edge
cases or the
categorical nature, sort
of what's the means
of finding out,
means of picking out whether
this is a vehicle or not.
What are the things that
tie all these uses together.
That requires additional work.
And hopefully, a good
dictionary has done that work,
but often not.
NEAL GOLDFARB: Right,
but dictionaries really
don't do anything other
than try to summarize usage.
So to regard those as a guide
to categorization is wrong
and any lexicographer
would agree with that.
Categorization, the kind of
things you're talking about,
is actually much
more complicated
than anyone realizes.
There's an enormous body of
psychological, and linguistic,
and philosophical literature.
And there is some
uses in the corpus,
because I've
looked, where people
do seem to regard
airplanes as vehicles.
So, yeah, but that's not
how it's ordinarily used.
But you get into a question
of do you want to--
it's the question of
whether an airplane is
regarded as a
vehicle, whether is
a tomato regarded
as a vegetable,
or is it a vegetable.
And there's this that tension
between a conventionalist
approach, or how is
something regarded,
the category of the vegetable is
actually socially constructed,
because it's just an odd-ball
collection of plant things
that we happen to cook
with, or is it somehow real.
This is the shape of reality.
This is a-- this is
or is not a vehicle,
it is or is not a vegetable.
And courts go back and forth
between those two things.
So I don't know that it's
tractable at all, regardless
of what resource you use.
But that's the only way here.
DARRELL MILLER: So I want to
just ask, put one more thing
on the table in our
last five minutes
or so here, which
is, as you know,
a couple of scholars,
Rappaport and McGinnis,
have a kind of a
different take on this,
a different theory
of originalism,
which is really about
original methods.
And at least my reading
of their interpretive move
is, it's very much
focused on lawyers
and understanding
the Constitution
in a legal framework,
which seems
to marry both of your
insights about originalism.
So to Neal, the
question would be, well,
why wouldn't we
reduce the denominator
of relevant materials just
to the usages by lawyers?
And to Stephen,
the question would
be, well, why can't, since we
are trafficking in a common law
system, why wouldn't that
presuppose that there
is no original law, because the
original law is going to evolve
over time in a common
law fashion, which
would have been well known
to the founding generation?
So in the last few
minutes, those questions.
NEAL GOLDFARB: Yeah, I think
I'm going to again say,
I really don't have
a whole lot to say
about what the choice of
interpretive theory should be.
I mean, I can talk about
what the implications
of various theories are
and what the implications
of corpus linguistics
might be for that.
But I don't-- that's not
anything I can have anything
to contribute on that other
people can't do better.
And as far as the
corpus, the corpus issue,
I think it might be hard to
define, specifically identify
legal--
lawyers using legal terminology
from something else.
I suspect also that
for most things,
it's not going to be that
difficult to identify
legal terminology, because
it's going to be discussed
in law dictionaries.
That would be one actual
example where a dictionary would
be useful, because it shows that
this has a particular meaning
in this specialized domain.
But beyond that, I
don't really have--
STEPHEN SACHS: I would
agree with part of that.
I think that-- and indeed,
you can build a legal corpus.
I mean, you can look
specifically to legal sources
to try and identify how
lawyers are using this word
and are they using
it differently.
I think what's important in
trying to understand what
the status of an unwritten
or common law rule
was at a particular time is
that much like language, even
though language rules
evolve over time,
but that still allows us to say,
well, at this particular time,
this is the best way to
understand that phrase,
or this was the most
common or best accepted use
of that phrase, even
though today it might
have something very different.
Someone who described something
as awful in the 16th century
might have meant more
like awesome today.
And given that fact, if
the Constitution protected
certain then existing
common law rules
against statutory abrogation,
that doesn't necessarily
mean that whatever those
rules later evolve into
is equally protected,
or whatever people
now regard as a right
to keep and bear arms.
It might be the one
that we are looking
at right now is now protected
against congressional
abrogation.
So I think that the legal
question would really be
are they protecting tort law,
period, some giant category
that we know
evolves, or are they
saying this particular rule of
common law, the fellow servant
rule or something,
is being protected?
And I think those have very
different legal implications
for what happens later on.
DARRELL MILLER: All right, in
the last few minutes, really
quickly, if we were
re-litigating District
of Columbia vs Heller and
you had the opportunity
to put in a brief, knowing
what you know now, in a couple
paragraphs what would it say?
Neal?
NEAL GOLDFARB: Well,
I already actually
did file a brief that
dealt with that, which
said, that here's this corpus
linguistic analysis that
undermines Heller, but don't
decide the Second Amendment
issue, because this should be
debated, and let it percolate,
let it be litigated, and
not deal with it until it
kind of gets a thorough airing,
which that hasn't happened yet.
I would hope it would.
And I hope that the
gun rights people
will address the issue, which so
far they've studiously avoided.
STEPHEN SACHS: And I would--
before filing any amicus brief,
would want a great
deal more expertise
in the history than
I currently possess.
But I think I would
say, look, you
don't have to have an
individualist reading of bear
as carry for there to
be an individual right
in the amendment.
The right to keep
weapons is generally
thought of as something that
individuals might possess.
And the right to--
the militia focused
reading of bear arms,
in fact might produce a
broader Second Amendment
right to keep
weapons than the one
that the court
actually recognized.
So I think that the fight
between the individual
focused and the militia focused
readings of the amendment
may not be a coherent fight.
It might be possible to read
them both together as a right
to keep weapons that one could
then use in militia service.
DARRELL MILLER: Terrific.
Thank you, guys, so much
again, for your flexibility,
for rescheduling this on Zoom.
This was a really, really
interesting and enlightening
discussion.
Please, for those of you that
are watching this online,
you can send any questions
or comments that you
have to firearms @law.duke.edu.
And you can check us out
online @law.duke.edu/firearms.
Follow us on Twitter
@dukefirearmslaw,
or subscribe to our blog,
"Second Thoughts," which
you can find on the Duke Center
for Firearms Law webpage.
Neal, Steve, thank
you again so much.
Be well, everybody.
NEAL GOLDFARB: Thank you.
STEPHEN SACHS: Thank you.
