Language Log

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.

COFEA and COEME: lawcorpus.byu.edu.

This was supposed to be the final entry in my series of posts on the Second Amendment, but I’ve decided to split the discussion into two parts.

In my last post, I concluded that as used in the Second Amendment, bear arms was most likely understood to mean ‘serve in the militia.’ The question that I’ll address here and in my next post is whether that conclusion is changed by the fact that the Second Amendment protects not simply “the right of the people to bear arms” but “the right of the people to keep and bear arms.”

The corpus data on keep and bear arms is of no help in answering that question, because all the uses of the phrase in the data are either from the Second Amendment or from drafts of proposals for what became the Second Amendment. Therefore, I won’t deal with the corpus data at all in this post, and I’ll deal with only a relative handful of concordance lines in the next one (though those lines will play an important role in the analysis).

Taken together, these two posts will provide an extended rebuttal of the portion of Heller (consisting of only four sentences) that raised the question that these posts will address. Those four sentences were part of the court’s argument that bear arms as used in the Second Amendment couldn’t possibly have been understood in its idiomatic military sense:

[If bear arms were given its idiomatic meaning,] the phrase “keep and bear arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

When I first read Heller, this struck me as a pretty strong argument. But I’ve rethought the issue since then, and have come to think that the argument is seriously flawed. At this point, although I don’t dismiss the argument altogether, I don’t think it rules out interpreting bear arms in the Second Amendment to mean ‘serve in the militia.’

"UPDATE 1-China tells U.S. to remove 'black hands' from Hong Kong"

China's allegations of U.S. "black hands" fomenting unrest in Hong Kong have been all over the news during the last few days.  Politically, no one knows exactly what the PRC is referring to (they haven't given any evidence for the involvement of American officials).  Linguistically, the origin of this expression in Chinese is far from clear.

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.

[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%.

In Iancu v. Brunetti, the U.S. Supreme Court recently decided, on free speech grounds, that Erik Brunetti should have the right to trademark his clothing line FUCT.

Robert Barnes' Washington Post story ("Supreme Court sides with ‘subversive’ clothing designer in First Amendment case", 6/24/2019) notes that "justices on both sides of the court’s ideological divide worried that the ruling went too far". Justice Stephen Breyer's opinion, "concurring in part and dissenting in part", cites neurological evidence for what might be a constitutionally defensible form of "linguistic regulation" [emphasis added]:

[S]cientific evidence suggests that certain highly vulgar words have a physiological and emotional impact that makes them different in kind from most other words. See M. Mohr, Holy S***: A Brief History of Swearing 252 (2013) (Mohr) (noting the “emotional impact” of certain profane words that “excite the lower-brain circuitry responsible for emotion,” resulting in “electrical impulses that can be measured in the skin”). These vulgar words originate in a different part of our brains than most other words. Id., at 250. And these types of swear words tend to attract more attention and are harder to forget than other words.

The philosopher Herbert Paul Grice was cited in an opinion issued on 5/24/2019 by Judge William M. Conley in the United States District Court for the Western District of Wisconsin.

The case is MillerCoors, LLC v. Anheuser-Busch Companies, LLC (3:19-cv-00218-wmc, and as the judge's opinion explains,

During Super Bowl LIII, defendant Anheuser-Busch Companies, LLC, launched an advertising campaign highlighting plaintiff MillerCoors, LLC’s use of corn syrup in brewing Miller Lite and Coors Light, as compared to Anheuser-Busch’s use of rice in its flagship light beer, Bud Light. This lawsuit followed, with MillerCoors asserting a claim of false advertising under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B).

This odd headline caught my eye:

"Man in China detained after giving dogs 'illegal' names," by Travis Fedschun | Fox News (5/15/19)

And what were the offending names?  Not what you might have thought:

Chéngguǎn 城管 ("Urban Management")

Xiéguǎn 协管 ("Assistant Management")

Part 1 is here. 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.

Update:  Concordance-line references have been changed to reflect revisions to the spreadsheet from which the lines were copied, as have figures for the total number of concordance lines and for the various subtotals that are given.

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

In this post and the next one, I will discuss the corpus data for bear arms.

This post will focus on the data that I think is consistent (or at least arguably consistent) with the Supreme Court’s interpretation of bear arms in District of Columbia v. Heller, and the next one will deal with the data that I think is inconsistent with the Heller interpretation.

As I discussed in my last post, the court in Heller held that the “natural meaning” of bear arms in the late 18th century (i.e., its “ordinary meaning” (i.e., what it ordinarily meant)) was “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.” As I read the data, very little of it is consistent with that interpretation.

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.

Literally. Kate Bernot, "Please let New Orleans' "Huge Ass Beer" lawsuit reach the Supreme Court", The Takeout 3/1/2019:

Per The New Orleans Advocate, the trademark for Huge Ass Beers belongs to one Nicholas S. Karno #1 Inc., which operates multiple Bourbon Street bars. Said bars—the Steak Pit, Prohibition, and Cornet—offer oversized and novelty pours of beer in branded Huge Ass Beer mugs. […]

But Huge Ass Beer bars’ operator Billie Karno this week filed a lawsuit alleging that other Bourbon Street bars have violated his Huge Ass Beer trademark by selling to-go cups advertising “Giant Ass Beer.” Those bars—Beerfest, Voodoo Vibe, and Sing Sing—plus a strip club called Stiletto’s, are operated by Pamela Olano and Guy Olano Jr. Karno seeks an end to marketing materials bearing the name Giant Ass Beers as well as damages.

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 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.

Is there a mistake here?

From the Washington Post:

The study is a corpus analysis performed by Jesse Egbert, a corpus linguist at Northern Arizona University and Clark Cunningham, a law professor who did work in law and linguistics from the late 1980s through the mid-1990s (link, link, link, link), including co-authoring an article with Chuck Fillmore that was what really opened my eyes to the power of linguistics in analyzing issues of word meaning.