Category Archives: Scalia

Corpora and the Second Amendment: “bear arms” (part 1), plus a look at “the people”

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.

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

This is the first of what will be three posts on bear arms; it will be devoted to critiquing the Supreme Court’s discussion of bear arms in District of Columbia v. Heller. My examination of the corpus data on bear arms will appear in my next two posts. In the meantime, if you’re interested, you can read discussions of the data by Dennis Baron (“Corpus Evidence Illuminates the Meaning of Bear Arms,” in the Hastings Constitutional Law Quarterly) and by Josh Blackman & James C. Phillips (“Corpus Linguistics and the Second Amendment,” in the Harvard Law Review Blog), both of which reach conclusions consistent with mine. (The piece by Blackman & Phillips is especially noteworthy, given that they are both gun-rights advocates.)

My focus in this post will be on the Supreme Court’s conclusion that at the time the Second Amendment was proposed and ratified, bear arms unambiguously meant ‘carry weapons, for purposes of being prepared for a confrontation,’ without regard to whether the carrying was in connection with military service. What I conclude is that even without taking account of how bear arms was actually used, the court’s arguments don’t hold up. Assuming for the sake of argument that bear arms could reasonably have been understood to mean what the court said it meant, the court didn’t show that it unambiguously meant that.

That’s not to say that I think bear arms was ambiguous. As I’ll discuss in the next two posts, the corpus evidence points toward the conclusion that bear arms unambiguously conveyed the military meaning that the Supreme Court rejected: “to serve as a soldier, do military service, fight” or “to wage war.” But even if the evidence were equivocal, the absence of evidence unambiguously supporting the court’s interpretation would still be important.

That’s because the court’s analysis in Heller depends crucially on its conclusion that bear arms was unambiguous. It was that conclusion that enabled the court to interpret the Second Amendment’s operative clause (“the right of the people to keep and bear Arms, shall not be infringed”) without taking into consideration its prefatory clause (“A well regulated Militia, being necessary to the security of a free State”). In the court’s view, if the operative clause was unambiguous, the prefatory clause “does not limit or expand [its] scope.” So if court was wrong in thinking that the operative clause was unambiguous, it was wrong in refusing to consider whether the prefatory clause affected its meaning. And if the prefatory clause plays a role in interpreting the operative clause, the argument against the court’s interpretation is strengthened.

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Corpora and the Second Amendment: “arms”

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.

This post on what arms means will follow the pattern of my post on bear. I’ll start by reviewing what the Supreme Court said about the topic in District of Columbia v. Heller. I’ll then turn to the Oxford English Dictionary for a look at how arms was used over the history of English up through the end of the 18th century, when the Second Amendment was proposed and ratified.. And finally, I’ll discuss the corpus data.

Justice Scalia’s majority opinion had this to say about what arms meant:

The 18th-century meaning [of arms] is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined ‘‘arms’’ as ‘‘[w]eapons of offence, or armour of defence.’’ Timothy Cunningham’s important 1771 legal dictionary defined ‘‘arms’’ as ‘‘any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.’’ [citations omitted]

As was true of what Scalia said about the meaning of bear, this summary was basically correct as far as it went, but was also a major oversimplification.

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Corpora and the Second Amendment: “bear”

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.

Starting with this post, I’m (finally) getting to the meat of what I’ve called “the coming corpus-based reexamination of the Second Amendment.” The plan, as I’ve said before, is to more or less mirror the structure of the Supreme Court’s analysis of keep and bear arms. This post will focus on bear, and subsequent posts will focus separately on arms, bear arms, and keep and bear arms. (I won’t be discussing keep arms because I have nothing to say about it.)

In discussing the meaning of the verb bear, Justice Scalia’s majority opinion in District of Columbia v. Heller said, “At the time of the founding, as now, to ‘bear’ meant to ‘carry.’’’ That statement was backed up by citations to distinguished lexicographic authority—Samuel Johnson, Noah Webster, Thomas Sheridan, and the OED—but evidence that was not readily available when Heller was decided shows that Scalia’s statement was very much an oversimplification. Although bear was sometimes used in the way that Scalia described, it was not synonymous with carry and its overall pattern of use was quite different.

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Corpora and the Second Amendment: “keep” (part 2)

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.

In  my last post (longer ago than I care to admit), I offered a very brief introduction to corpus analysis and used corpus data on the word keep as the raw material for a demonstration of corpus analysis in action. One of my reasons for doing that was to talk about the approach to word meaning that I think is appropriate when using corpus linguistics in legal interpretation.

That approach, which is described in my article “A Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics” (pdf), is based on work in corpus-based lexicography, and it provides a way of dealing with puzzling fact about language. Many words have multiple possible meanings when they are considered in isolation, but when used in a sentence they are typically unambiguous. The basic insight that grew out of lexicographic corpus analysis is that when a word is used in a given context, what is generally thought of as the meaning of the word in that context is often more appropriately regarded as the meaning of a larger unit consisting of the word together with certain elements of the accompanying text. And it turns out that it is often possible to identify the kinds of contextual elements that are associated with particular meanings.

This has implications for the use of corpus linguistics in legal interpretation, because it can provide guidance in querying the corpus and then sifting and analyzing the data. The key is to look for concordance lines in which the relevant word is used in a context that is grammatically and semantically similar to the context in the legal provision at issue. (For an idea of the kind of similarity I’m talking about, see my analysis of Muscarello v. United States and my post “The semantics of sleeping in railway stations.”)

The approach that I’ve described also has implications for this reexamination of the District of Columbia v. Heller. Those implications arise from the fact that at a key point in the decision, the Supreme Court relied on the fact that when bear arms is used to denote activities such as serving as a soldier and fighting in a war, its use is idiomatic. And the approach I’m following provides a way of thinking about idiomaticity that differs from the traditional view of the phenomenon—which was the view underlying this aspect of Heller.

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

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.

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Corpora and the Second Amendment: Heller

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”:

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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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