Ed. note: This article first appeared on The Juris Lab, a forum where “data analytics meets the law.”

A month and a half ago, a panel on the Ninth Circuit ordered supplemental briefing in Jones v. Becerra — an important Second Amendment case concerning the constitutionality of a California statute which bans the sale of firearms to individuals under the age of 21 — requesting the parties address three questions:

1. “What is the original public meaning of the Second Amendment phrases: ‘A well regulated Militia’; ‘the right of the people’; and ‘shall not be infringed’?
2. How does the tool of corpus linguistics help inform the determination of the original public meaning of those Second Amendment phrases?
3. How do the data yielded from corpus linguistics assist in the interpretation of the constitutionality of age-based restrictions under the Second Amendment?”

This is the second time that a Circuit court panel has ordered the parties to provide supplemental briefing in order to provide the court with corpus-based arguments. As a handy practice tip, it’s safe to assume that if judges specifically request corpus-based arguments, they have already concluded that corpus linguistics is a helpful tool at least in theory. They may have questions about whether corpus linguistics would be helpful in the particular case before them, or they may lack the confidence in their own ability to navigate and interpret the databases themselves, but if they are actually ordering parties to devote time and resources to making corpus-based arguments, it’s safe to assume that they’re already sold on the law and corpus linguistics movement as a whole. 

Apparently, the attorneys representing Mr. Jones disagreed. The bulk of their supplemental brief — filed last week — argues that “corpus linguistics suffers from several fatal conceptual difficulties that make it an unreliable guide to the original public meaning of the Second Amendment.” Of primary concern for the plaintiffs is the supposedly irrefutable fact that “corpus linguistics is fundamentally contrary to the way we use language” because it assumes that “the single meaning for constitutional purposes is the one appearing in the dataset the greatest number of times.”

This is nothing new. Corpus critics have routinely accused the law and corpus linguistics movement of being nothing more than bean counters, what they often call the faulty “frequency hypothesis.” The problem for Cooper & Kirk is that no serious proponent of corpus linguistics actually argues for that! As Utah Supreme Court Justice Thomas R. Lee and Stephen Mouritsen — two of the nation’s leading scholars in the field of law and corpus linguistics — recently put it in their recent Chicago Law Review article, “[t]he frequency fallacy is another straw man. It has no foundation in our writing[s] . . . Indeed, both of us have expressly disavowed an approach that merely seeks to determine the most common sense of a word and then labels that sense the ordinary meaning.” 

By relying on such discredited, two-dimensional caricatures of corpus linguistics, Plaintiffs’ attorneys have needlessly undermined their clients’ position. At the time the supplemental briefing order was issued, the composition of the panel assigned the case was still unknown. No longer. The panel consists of Judge Ryan D. Nelson, Judge Kenneth K. Lee, and Judge Sidney H. Stein. While Judge Stein — a senior district court judge on the SDNY sitting by designation — is a Clinton appointee, Judge Nelson and Judge Lee are both recent Trump-appointees. If they are asking for corpus-based arguments in a Second Amendment case, it means that they are sincerely interested in engaging with the historical record and seeing what corpus linguistics has to say. 

This is probably especially the case for Judge Nelson. When he was General Counsel of Maleluca, he was involved in a case that hired a corpus linguist as an expert witness. He’s also a graduate of BYU Law, where as a student he was a research assistant for Professor Thomas R. Lee — yes, that Tom Lee, the one who now sits on the Utah Supreme Court and is the nation’s leading evangelist for law and corpus linguistics. In fact, Justice Lee spoke at Judge Nelson’s investiture. I suspect he will not take kindly to a brief which attacks his mentor’s most significant contribution to the law.

Perhaps the attorneys at Cooper & Kirk were concerned about the panel being unduly swayed by the swath of recent literature — not to mention a recent decision by the Vermont Supreme Court — that uses corpus linguistics to call into question Justice Scalia’s decision in Heller, but the debate over how to interpret the evidence produced by corpus linguistics over the original meaning of the Second Amendment is far from settled. The historical record is messy. When Plaintiffs finally got around to engaging with the corpus data, they provided some compelling arguments in support of their theory that at the time of the founding the “militia” and “rights of the people” extended to eighteen-year-olds. But they’ve undermined their own arguments by devoting so much ink to telling the court to “pay no attention to the little man behind the curtain.” They appear unnecessarily defensive, as if they assume they can’t win if corpus linguistics is considered.

Read more at The Juris Lab … 

James Heilpern is a pioneer at the forefront of the Law & Corpus Linguistics movement, an emerging legal discipline that seeks to harness the power of big data to produce empirical evidence about meaning of words and phrases in legal instruments. He currently serves as President and Managing Partner of Corpus Legal Services, a litigation consulting boutique that provides corpus linguistic training, consulting, and expert witness services to law firms nationwide. 

James also works as Counsel for Schaerr|Jaffe, LLP, a complex-litigation boutique, where he has represented clients before the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Corte Suprema de Puerto Rico, and district courts around the country. In this capacity, he has authored some of the first briefs in the country to employ corpus-linguistic techniques. James is also a Senior Fellow at the BYU Law School where he teaches Law & Corpus Linguistics and Education Law and has authored law review articles in some of the nation’s leading law reviews.