Category Archives: -isms of interpretation

Corpora and the Second Amendment: “the right (of the people) to … bear arms”

Posted on July 16, 2019 | Leave a comment

An introduction and guide to this series of posts is available here. The corpus data can be downloaded here. Important: Use the “Download” button at the top right of the screen.

New URL for COFEA and COEME: https://lawcorpus.byu.edu.

Having dealt in my last post with how bear arms was ordinarily used and understood in 18th-century America, I’ll turn in this post to the question of how it was used in the Second Amendment.

I’ll begin by considering how the right to bear arms would most likely have been understood during the Founding Era. As I will explain, I think it would have been understood to mean something along the lines of ‘serve in the militia.’ I’ll then ask whether that conclusion is changed by the fact that the right to bear arms is described in the Second Amendment as belonging to “the people.” My answer will be that my conclusion is unchanged.

My next post will wrap up my examination of the Second Amendment by considering whether my interpretation is ruled out by the fact that the Second Amendment deals not simply with the right of the people to bear arms but with their right to keep and bear arms. And again, the answer will be no.

Continue reading →

Leave a comment

Posted in "bear arms", Corpus linguistics & constitutional interpretation, District of Columbia v. Heller, Law and corpus linguistics, Originalism, Scalia, Second Amendment

Corpora and the Second Amendment: “bear arms” (part 3) [UPDATED]

Posted on July 10, 2019 | Leave a comment

[Part 1, Part 2.] An introduction and guide to this series of posts is available here. The corpus data can be downloaded here. Important: Use the “Download” button at the top right of the screen. 

New URL for COFEA and COEME: https://lawcorpus.byu.edu.

From The Public Records of the Colony of Connecticut
From October, 1735, to October, 1743, Inclusive

—♦—

THIS WILL BE my final post about bear arms, and it will be followed by a post on the right of the people to … bear arms and another on keep and bear arms. These posts will directly address the linguistic issues that are most important in evaluating the Supreme Court’s decision in District of Columbia v. Heller: how bear arms was ordinarily used in the America of the late 18th century, and how the right of the people, to keep and bear Arms was likely to have been understood.

As I’ve previously explained, the court held in Heller that at the time of the Framing, bear arms ordinarily meant ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.’ In my last post, I discussed the uses of bear arms in the corpus that I thought were at least arguably consistent with that that meaning. Out of the 531 uses that I identified as being relevant, there were only 26 in that category—less than 5% of the total.

In this post I’ll discuss the other 95%.

Continue reading →

Leave a comment

Posted in "bear arms", Corpus linguistics & constitutional interpretation, District of Columbia v. Heller, Law and corpus linguistics, Law and linguistics, Originalism, Scalia

Corpora and the Second Amendment: “keep” (part 1)

Posted on August 11, 2018 | Leave a comment

An introduction and guide to my series of posts “Corpora and the Second Amendment” is available here. The corpus data that is discussed can be downloaded here. That link will take you to a shared folder in Dropbox. Important: Use the “Download” button at the top right of the screen.

With this post, I begin my examination of the corpus data regarding the phrase keep and bear arms. My plan is to start at the level of the individual words, keep, bear, and arms, then proceed to the simple verb phrases keep arms and bear arms, and finally deal with the whole phrase keep and bear arms. I start in this post and the next one with keep.

As you may recall from my last post about the Second Amendment, Justice Scalia’s majority opinion in D.C. v. Heller had this to say about the meaning of keep: “[Samuel] Johnson defined ‘keep’ as, most relevantly, ‘[t]o retain; not to lose,’ and ‘[t]o have in custody.’ Webster defined it as ‘[t]o hold; to retain in one’s power or possession.'” While those definitions could be improved on, I think that for purposes of this discussion, they adequately explain what keep means when it’s used in the phrase keep arms. So I’m not going to discuss that data with an eye to criticizing this portion of the Heller opinion.

Instead, I’m going to use the data for keep as the raw material for an introduction to the nuts and bolts of corpus analysis. I suspect that many people reading this won’t have had any first-hand experience working with corpus data, or even any exposure to it. Hopefully this quick introduction will enable those people to better understand what I’m talking about when I start to deal with the data that does raise questions about the Supreme Court’s analysis.

Continue reading →

Leave a comment

Posted in "keep", Corpus linguistics & constitutional interpretation, Dictionaries, District of Columbia v. Heller, Law and corpus linguistics, Law and linguistics, Originalism, Scalia, Second Amendment

Corpora and the Second Amendment: Heller

Posted on June 10, 2018 | Leave a comment

An introduction and guide to my series of posts “Corpora and the Second Amendment” is available here. The corpus data that is discussed can be downloaded here. That link will take you to a shared folder in Dropbox. Important: Use the “Download” button at the top right of the screen.

Before I get into the corpus data (next post, I promise), I want to set the stage by talking a bit about the Heller decision. Since the purpose of this series of posts is to show the ways in which the corpus data casts doubt on the Supreme Court’s interpretation of keep and bear arms, I’m going to review the parts of the decision that are most relevant to that purpose. I’m also going to point out several ways in which I think the Court’s linguistic analysis is flawed even without considering the corpus data. Although that wasn’t part of my plans when I began these posts, this project has led me to read Heller more closely than I had done before and therefore to see flaws that had previously escaped my notice. And I think that being aware of those flaws will be important when the time comes to decide whether  and to what extent the data undermines Heller‘s analysis.

The Second Amendment’s structure

As is well known (and as has been discussed previously on Language Log here, here, and here), the Second Amendment is unusual in that it is divided into two distinct parts, which the Court in Heller called the “prefatory clause” and the “operative clause”:

Continue reading →

Leave a comment

Posted in "bear arms", "keep and bear arms", "keep arms", Corpus linguistics & constitutional interpretation, Corpus linguistics & lexicography, Dictionaries, District of Columbia v. Heller, Law and corpus linguistics, Law and linguistics, Originalism, Scalia, Second Amendment

Corpora and the Second Amendment: Preliminaries and caveats

Posted on June 7, 2018 | 1 comment

[An introduction and guide to my series of posts “Corpora and the Second Amendment” is available here.]

Before I get down to the business of discussing the corpus data and its implications for the Supreme Court’s analysis in Heller, I want to say a few things about what this series of posts will and won’t be about, I want to offer some caveats, and I want to outline the sequence that the posts will follow.

What the posts will and won’t be about

These posts are going to focus on the meaning of the phrase keep and bear arms and on the Court’s analysis of that phrase. I won’t be talking about the other parts of the Second Amendment (a well-regulated militia, the security of a free state, the right of the people, and infringed).

The discussion will concentrate on linguistic issues rather legal issues. I won’t be talking about whether the Court’s holding in Heller is correct. I will, however, talk about what my linguistic analysis means for Heller‘s conclusion that the Second Amendment’s text is unambiguous and therefore that the prefatory clause plays no role in the amendment’s interpretation.

Continue reading →

1 Comment

Posted in "bear arms", "keep and bear arms", "keep arms", Corpus linguistics & constitutional interpretation, Corpus linguistics & lexicography, District of Columbia v. Heller, Law and corpus linguistics, Law and linguistics, Originalism, Second Amendment, Word meaning

Corpora and the Second Amendment: Responding to Weisberg on the meaning of “bear arms”

Posted on May 30, 2018 | 1 comment

[An introduction and guide to my series of posts “Corpora and the Second Amendment” is available here.]

The Originalism Blog has a guest post, by David Weisberg, taking issue with the conclusion in Dennis Baron’s Washington Post op-ed that newly available evidence of historical usage shows that in District of Columbia v. Heller, Justice Scalia misinterpreted the phrase keep and bear arms. That’s an issue that I wrote about yesterday (“The coming corpus-based reexamination of the Second Amendment“) and that I’m going to be dealing with in a series of posts over the next several weeks.

One of Weisberg’s arguments concerns a linguistic issue that I’m planning to address, and I think that Weisberg is mistaken. At the risk of getting out ahead of myself, I want to respond to Weisberg briefly now, with a more detailed explanation to come.

Continue reading →

1 Comment

Posted in "bear arms", "keep and bear arms", "keep arms", Corpus linguistics & lexicography, District of Columbia v. Heller, Law and corpus linguistics, Law and linguistics, Originalism, Second Amendment, Souter

The coming corpus-based reexamination of the Second Amendment

Posted on May 28, 2018 | Comments Off on The coming corpus-based reexamination of the Second Amendment

[An introduction and guide to my series of posts “Corpora and the Second Amendment” is available here.]

It was only three weeks ago that BYU Law School made available two corpora that are intended to provide corpus-linguistic resources for researching the original meaning of the U.S. Constitution. And already the corpora are yielding results that could be very important.

The two corpora are COFEA (the Corpus of Founding Era American English) and COEME (the Corpus of Early Modern English). As I’ve previously explained, COFEA consists of almost 139 million words, drawn from more than 95,000 texts from the period 1760–1799, and COEME consists of 1.28 billion words, from 40,000 texts dating to the period 1475–1800. (The two corpora can be accessed here.)

Within a day after COFEA and COEME became available, Dennis Baron looked at data from the two corpora, to see what they revealed about the meaning of the key phrase in the Second Amendment: keep and bear arms. (Baron was one of the signatories to the linguists’ amicus brief in District of Columbia v. Heller.) He announced his findings here on Language Log, in a comment on my post about the corpora’s unveiling:

Sorry, J. Scalia, you got it wrong in Heller. I just ran “bear arms” through BYU’s EMne [=Early Modern English] and Founding Era American English corpora, and of about 1500 matches (not counting the duplicates), all but a handful are clearly military.

Two weeks later, Baron published an opinion piece in the Washington Post, titled “Antonin Scalia was wrong about the meaning of ‘bear arms’,” in which he repeated the point he had made in his comment, and elaborated on it a little. Out of “about 1,500 separate occurrences of ‘bear arms’ in the 17th and 18th centuries,” he said, “only a handful don’t refer to war, soldiering or organized, armed action.” Based on that fact, Baron said that the two corpora “confirm that the natural meaning of ‘bear arms’ in the framers’ day was military.”

My interest having been piqued, I decided to check out the corpus data myself.

Continue reading →

Comments Off on The coming corpus-based reexamination of the Second Amendment

Posted in "bear arms", "keep and bear arms", "keep arms", Corpus linguistics & lexicography, District of Columbia v. Heller, Law and corpus linguistics, Law and linguistics, Originalism, Scalia, Second Amendment

BYU Law Review: Special issue on law and corpus linguistics

Posted on May 19, 2018 | Leave a comment

The B.Y.U. Law Review has published its special issue devoted to the papers presented at the 2017 law-and-corpus-linguistics conference hosted by the B.Y.U. Law School.

One of the papers in the volume is mine: “A Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics” (abstract; pdf), which discusses a new way of thinking about the issue of word meaning that has developed as a result of the use of corpus linguistics in lexicography. A condensed version of that discussion (very condensed) can be found in my post Meaning in the Framework of Corpus Linguistics.

Of the other papers, there are three that I think will be of the most interest to readers (whether judges, lawyers, or legal academics) who want to learn more about what role corpus linguistics can play in legal interpretation. Two of those papers view the use of corpus linguistics positively; the other is critical of it.

Continue reading →

Leave a comment

Posted in Corpus linguistics & lexicography, Corpus linguistics and statutory interpretation, Law and corpus linguistics, Law and linguistics, Originalism, Uncategorized

“bear arms” in the BYU Law corpora

Posted on May 8, 2018 | Leave a comment

[Cross-posted from Language Log]

In the comments [at Language Log] on my recent post “The BYU Law corpora,” Dennis Baron writes:

Sorry, J. Scalia, you got it wrong in Heller. I just ran “bear arms” through BYU’s EMne [=Early Modern English] and Founding Era American English corpora, and of about 1500 matches (not counting the duplicates), all but a handful are clearly military.

Baron was one of the signatories to the linguists’ amicus brief in Heller.

Update:

In the comments [on this post at Language Log], Ben Zimmer links to Baron’s article, “Guns and Grammar: the Linguistics of the Second Amendment,” which provides some details about the argument in that brief.

Leave a comment

Posted in "bear arms", District of Columbia v. Heller, Law and corpus linguistics, Law and linguistics, Originalism, Scalia, Second Amendment

Lucia v. SEC: Corpus linguistics and originalism

Posted on April 17, 2018 | Leave a comment

Over about the past year, there’s been a significant increase in the attention being paid to the idea of using corpus linguistics in legal interpretation. One of the most recent developments has occurred in a case that will be argued next week in the Supreme Court, in which two of the amicus briefs rely on corpus linguistics (Brief of Scholars of Corpus Linguistics; Brief of Prof. Jennifer L. Mascott).

The case in question is  Lucia v. Securities and Exchange Commission, and it raises  the question whether federal Administrative Law Judges are “officers of the United States” within the meaning of the Appointments Clause of the Constitution. This is the first of what will be two or three posts that are prompted by the filing of these briefs. However, none of the posts will deal with the substance of the legal or linguistic issues in the case.

Lucia is the first Supreme Court case I’m aware of in which anyone has relied on corpus analysis since FCC v. AT&T, Inc., in which I filed an amicus brief that was largely corpus-based. It’s also as far as I know the only case in any court where corpus analysis has been used in a brief in connection with an issue of constitutional interpretation.

Continue reading →

Leave a comment

Posted in -isms of interpretation, Intentionalism, Law and corpus linguistics, Law and linguistics, Lucia v. SEC: Corpus linguistics and originalism, Originalism