Category Archives: Originalism

Corpora and the Second Amendment: Heller

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

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”:

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Corpora and the Second Amendment: Preliminaries and caveats

[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.

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

[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.

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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.

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B.Y.U. Law Review: Special issue on law and corpus linguistics

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.

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“bear arms” in the BYU Law corpora

[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.

Lucia v. SEC: Corpus linguistics and originalism

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.

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