Category Archives: Scalia

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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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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Dennis Baron (in WaPo) on corpus linguistics and “bearing arms”

The Washington Post published an opinion piece earlier today by Dennis Baron, with the self-explanatory title “Antonin Scalia was wrong about the meaning of ‘bear arms.’” The crux of the article:

By Scalia’s logic, the natural meaning of “bear arms” is simply to carry a weapon and has nothing to do with armies. He explained in his opinion: “Although [bear arms] implies that the carrying of the weapon is for the purpose of ‘offensive or defensive action,’ it in no way connotes participation in a structured military organization. From our review of founding-era sources, we conclude that this natural meaning was also the meaning that ‘bear arms’ had in the 18th century. In numerous instances, ‘bear arms’ was unambiguously used to refer to the carrying of weapons outside of an organized militia.”

But Scalia was wrong. Two new databases of English writing from the founding era confirm that “bear arms” is a military term. Non-military uses of “bear arms” are not just rare — they’re almost nonexistent.

A search of Brigham Young University’s new online Corpus of Founding Era American English, with more than 95,000 texts and 138 million words, yields 281 instances of the phrase “bear arms.” BYU’s Corpus of Early Modern English, with 40,000 texts and close to 1.3 billion words, shows 1,572 instances of the phrase. Subtracting about 350 duplicate matches, that leaves about 1,500 separate occurrences of “bear arms” in the 17th and 18th centuries, and only a handful don’t refer to war, soldiering or organized, armed action. These databases confirm that the natural meaning of “bear arms” in the framers’ day was military.

The two corpora that Baron used were made available for public use (in beta versions) about two weeks ago; more information about them is available in my post about their public unveiling, “The BYU Law corpora.” Baron (who had joined in the linguistics professors’ amicus brief in Heller) was quick to take advantage of these corpora, and on May 7 he posted this comment on that post (on Language Log):

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.

Since I thought that this news deserved more attention than it would was likely to get in the comment thread, I did a separate post about it: “‘bear arms’ in the BYU Law corpora.” All of which is to say, you read it here first.

 

[Cross-posted on Language Log.]

 

 

 

 

“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.

#GorsuchDictionaries: Into the lexicographic weeds (updated, and updated again)

Note: If you’re coming back to this post after having read it already, be sure to note the additional update I’ve added, which comes right after the discussion that dates the W2 definition back to 1934.

A new hashtag popped up last week, #GorsuchStyle, devoted to spoofing Justice Gorsuch’s writing style, or at least the style that is on display in the opening sentences of his dissenting opinion in  Artis v. District of Columbia (pdf): “Chesterton reminds us not to clear away a fence just because we cannot see its point. Even if a fence doesn’t seem to have a reason, sometimes all that means is we need to look more carefully for the reason it was built in the first place.”

I mention that, not because this post will be about Gorsuch’s writing style (it won’t), but because I’m not above a little clickbait-y coattail-riding. It’s not gratuitous clickbait, mind you. This post is about Gorsuch’s dissent in Artis. And it remains to be seen whether it’s effective clickbait. Part of me thinks that if your title includes the word lexicographic, maybe you’re doing clickbait wrong. On the other hand, #AppellateTwitter likes dictionaries, so maybe not.

What this post will be about is Gorsuch’s choice of dictionaries to cite in his Artis dissent. As the title suggests, it will be heavy on lexicography, but it will also touch on what that choice says about whether Gorsuch is a snoot, like his predecessor was, and if so whether that ought to play a role in his decision about what dictionaries to cite. I also plan on doing a separate post to talk about the contrasting approaches to word meaning that are on display in Artis, both of them resonating, though in opposite ways, with what I’ve written about that subject (link, link).

Update: The second post can be found here.

As you may have gathered know if you’re familiar with some of the things I’ve written about word meaning, I’m not a big fan of the central role that dictionaries play in the way lawyers, judges, and legal scholars deal with issues of word meaning. For this post, though, I’ll put that dissatisfaction aside, and will treat the use of dictionaries as perfectly appropriate interpretive tools.

THE ISSUE of which dictionary to use is a recurring one in the academic literature about judges’ use of dictionaries. It’s usually discussed under the rubric of “dictionary shopping”—the practice of looking for the definitions that are most supportive of the result you want to reach. That practice is of course the norm for lawyers arguing cases, but it’s problematic for judges or legal scholars, who aren’t supposed to start out with a preferred outcome and then reason backward to the arguments that can support it. However, there is at least one circumstance in which selectiveness about the dictionaries that one cites can be appropriate: when the purpose of citing the dictionary is merely to show that a particular reading of the word in question is possible. And in fact that was Gorsuch’s purpose in relying on the definitions he cited; he was arguing that the statute was ambiguous.

Nevertheless, Gorsuch’s dictionary choices in Artis are subject to some significant criticisms in terms of what might be called lexicographic relevance; the definitions he relies on don’t necessarily shed much light on the meaning of the statutory language that was in dispute. And in that respect, the dissent is not the first time that judges have gone lexicographically astray.

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Voting rights and the language of causation

Last week the Supreme Court heard Husted v. A. Philip Randolph Institute, a big voting-rights case that—as I only recently learned—involves a statute raising a linguistic issue similar to the one I argued in my amicus brief in University of Texas Southwestern Medical Center v. Nassar. The statute in each case makes it illegal to take certain action if  the action is taken for a prohibited reason. In Husted, the statute prohibits states from removing people from the list of eligible voters “solely by reason of a failure to vote.” In Nassar, it prohibited employers from discriminating against any employee “because he has opposed any practice made an unlawful employment practice by [the statute], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the statute].”

The linguistic issue that I want to talk about is whether the boldfaced language in each statute has the effect of requiring “but for” causation. As the lawyers reading this will know, a “but for” cause is a cause without which (i.e., but for which) the result in question would not have occurred. In philosophy, but-for causes are referred to as “necessary causes,” and they are distinguished from “sufficient causes,” which are causes that would be sufficient to bring about the result, but that may co-occur with other sufficient causes.

My amicus brief in Nassar (discussed here and here) challenged the Supreme Court’s earlier holding in Gross v. FBL Financial Services that under a statute prohibiting discrimination “because of” an employee’s age, plaintiffs are required to prove that their age was a but-for cause of the employer’s action against them. The Court in Gross had relied mainly on dictionary definitions (which didn’t actually address the issue, but never mind that), as well as on cases in that had held but-for causation to be required by the various other expressions, including by reason of. My brief argued that Gross was incorrect and that its error should not be extended to the different statute that was at issue in Nassar. I knew that the odds were against my argument being accepted by a majority of the justices, but I figured that at a minimum, the dissenters would pick up on it. As things turned out, that was, shall we say, overoptimistic on my part. The brief went nowhere.

And now along comes Husted, which gives me an excuse opportunity to bring up this issue again.

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Comprehension, ordinary meaning, and linguistics

In my first language-of-the-law post the other day, I talked about the fact that the words interpret and interpretation are polysemous—they can be used in multiple different ways that are related to one another: they can be used to refer both to the conscious process of deliberation that underlies legal interpretation and to the automatic and effortless cognitive processes that underlie the comprehension of utterances and texts. And I said that although it’s not unusual to use those word in both ways, in the context of discussing legal interpretation the can be to obscure the fact that the processes differ. As a result, I prefer to use interpret and its derivatives only with respect to legal interpretation, and to use the words comprehend and comprehension to refer to the cognitive processes by which utterances and texts are understood.

It occurred to me that this would provide a good lead for me to discuss some of the assumptions that underlie my efforts to apply linguistics to legal interpretation. I’m going to do that now, and I’m going to do it by drawing on (and adapting) something that I wrote as part of a book proposal.

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