No. 20-782 In the Supreme Court of the United States __________ RAYMOND HOLLOWAY, JR., Petitioner, v. ROBERT M. WILKINSON, ACTING ATTORNEY GENERAL et al., Respondents. __________ On Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit __________ Brief of Neal Goldfarb as Amicus Curiae in Support of Respondents __________ Neal Goldfarb 1301 Fairmont St., N.W. Washington, D.C. 20009 (202) 262-7886 [email protected] Counsel for Amicus Curiae Contents Table of Authorities .......................................................ii Interest of Amicus .......................................................... 1 Introduction and Summary of Argument .................... 1 Argument ........................................................................ 4 I. The Vermont Supreme Court recently held—based largely on corpus data—that bear arms “most often meant to serve in a military capacity,” and that the right of the people to bear arms was most likely under- stood as being linked to service in the militia. .................................................................. 4 II. The fact that Heller was mistaken about the original meaning of bear arms under- mines the Court’s reliance on the work of Tucker, Rawle, and Story. ................................. 12 A. Tucker .......................................................... 12 B. Rawle ............................................................ 20 C. Story ............................................................. 21 Conclusion .................................................................... 24 Table of Authorities Cases District of Columbia v. Heller, 554 U.S. 570 (2008) ............................................................... passim State v. Misch, 2021 VT 10 .................................. 4-9, 15 Constitutions U.S. Constitution, Second Amendment .............. passim Va. Bill of Rights, § 13 (1776) ...................................... 13 Vt. Const., Ch. I, Art. 16 ...................................... 4-9, 10 Vt. Decl. of Rights, ch. 1, § XV (1777), in 5 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws 3083 (Francis N. Thorpe, ed. 1909) .................................. 5 Other Materials Brief of Neal Goldfarb as Amicus Curiae in Support of Respondents, New York State Rifle & Pistol Assn. v. Corlett, No. 20-843 (U.S. filed Feb. 12, 2021) .......................................................................... 2 iii Patrick J. Charles, “Arms for Their Defence”?: An Historical, Legal, and Textual Analysis of the English Right to Have Arms and Whether the Second Amendment Should Be Incorporated in McDonald v. City of Chicago, 57 Cleve. State L. Rev. 350 (2009) ..................................... 9, 18 Patrick J. Charles, The Right of Self-Preservation and Resistance: A True Legal and Historical Understanding of the Anglo-American Right to Arms, 2010 Cardozo Law Review De Novo 18 .............................................................. 9, 18 Neal Goldfarb, A (Mostly Corpus-Based) Reexam- ination of D.C. v. Heller and the Second Amendment, bit.ly/Goldfarb2dAmAnalysis (2019) ............................................................. 1, 11, 15 Neal Goldfarb, Briefs, LAWnLinguistics, bit.ly/GoldfarbBriefs ................................................. 1 Neal Goldfarb, COFEA data (‘self defence’ & ‘self preservation’) (Excel spreadsheet), https://bit.ly/2ZPCPhl ............................................ 15 Neal Goldfarb, LAWnLinguistics.com .......................... 1 Neal Goldfarb, Papers, LAWnLinguistics, bit.ly/GoldfarbPapers ............................................... 1 Neal Goldfarb, Corpus data regarding “the right of the people,” “the people have a right,” and “the people’s right” (April 29, 2019) (Excel spread- sheet), bit.ly/RightOfThePeople ............................ 10 Nathan Kozuskanich, Defending Themselves: The Original Understanding of the Right to Bear Arms, 38 Rutgers L.J. 1041 (2007) ........................ 15 iv Darrell Miller, Owning Heller, 30 U. Fla. J. L. & Pub. Pol’y 153, 160-61 (2020) .................................. 6 Pet. for Writ of Certiorari, New York State Rifle & Pistol Assn. v. Corlett, No. 20-843 (U.S. filed Dec. 17, 2020)............................................................ 2 Pet. for Writ of Certiorari, Folajtar v. Wilkinson, No. 20-812 (U.S. filed Nov. 24, 2020)....................... 2 William Rawle, A View of the Constitution of the United States of America (1825) ...................... 20-21 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012) .............. 11 Lois G. Schwoerer, To Hold and Bear Arms: The English Perspective, 6 Chi.-Kent L. Rev. 27 (2000)............................................................ 15, 18 3 Joseph Story, Commentaries on the Constitu- tion of the United States (1833) ....................... 22-24 St. George Tucker, View of the Constitution of the United States, in 1 St. George Tucker, Blackstone’s Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia Appx. 300 (1803) ......................................... 12-13, 14 1 St. George Tucker, Blackstone’s Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia (1803) ................................................. 16, 19 v 2 St. George Tucker, Blackstone’s Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia (1803) ................................................. 16, 19 Interest of Amicus1 Amicus Neal Goldfarb is an attorney with an in- terest and expertise in linguistics, and in applying the insights and methodologies of linguistics to legal inter- pretation. He has written about the latter topic exten- sively, in papers, amicus briefs, and blog posts.2 Amicus’s interest in this case stems from his hav- ing carried out a corpus-linguistic analysis of the Sec- ond Amendment’s operative clause (“the right of the people to keep and bear Arms”), which shows that the Court in District of Columbia v. Heller, 554 U.S. 570 (2008), was mistaken about the Second Amendment’s original meaning.3 Introduction and Summary of Argument4 The petition in this case is one of several currently pending that seek review of decisions rejecting claimed 1. All parties were timely notified and have consented in writing to the filing of this brief. No party’s counsel authored any part of this brief. Nobody other than amicus contributed any funds toward the brief’s preparation or submission. 2. Links to amicus’s articles and briefs are available at bit.ly/ GoldfarbPapers and bit.ly/GoldfarbBriefs, respectively. Ami- cus blogs at LAWnLinguistics. 3. Neal Goldfarb, A (Mostly Corpus-Based) Reexamination of D.C. v. Heller and the Second Amendment, bit.ly/Goldfarb2d AmAnalysis (2019) (“Goldfarb Analysis”). 4. This brief follows a typographic convention generally followed in linguistics, whereby 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.” 2 denials of rights under the Second Amendment.5 In one of those cases—New York State Rifle & Pistol Assn. v. Corlett, No. 20-843 (filed Dec. 17, 2020)—amicus has filed a brief opposing the petition, on the grounds that the issue that the petition seeks to raise should not be decided until the Court has considered the challenge to Heller that is posed by his analysis (and by other corpus-based analyses of the Second Amendment), and that the Court should not address the latter issue until scholars and advocates on all sides of the gun-rights issue have had an opportunity to debate the corpus evidence, and the issues that would follow from a con- clusion that Heller was wrongly decided. Amicus submits that those same grounds militate against granting the petition in this case. However, am- icus will not repeat here the arguments he made in his previous brief. Instead, he presents two arguments that are more narrowly focused, but that support amicus’s contention as to why the petition should be denied. The first argument is based on a very recent deci- sion by the Vermont Supreme Court, handed down only a week before this brief’s filing. State v. Misch, 2021 VT 10 (Feb. 19, 2021). The decision concerns the Vermont analogue of the Second Amendment (“That the people have a right to bear arms for the defense of themselves and the State”), but it is highly relevant to analysis of the Second Amendment, both because the 5. See, e.g, Pet. for Writ of Certiorari, New York State Rifle & Pistol Assn. v. Corlett, No. 20-843 (U.S. filed Dec. 17, 2020); Pet. for Writ of Certiorari, Folajtar v. Wilkinson, No. 20-812 (U.S. filed Nov. 24, 2020). 3 court dealt with expressions similar or identical to key phrases in the Second Amendment (the people have a right and bear arms) and because it discussed an expression that played an important role in Heller’s analysis (for the defence of themselves). On every one of those issues, the Vermont court’s conclusion was contrary to Heller’s. The conclusion as to bear arms was based on the corpus evidence showing how that phrase was used during the Founding Era. And while the court did not rely on corpus data in reaching its conclusion regarding the people have a right and for the defense of themselves,