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.]

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.

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.

Two quick updates.

First, David Weisberg has replied to my response to his post on the Originalism Blog, but he doesn't address the point that I made, which was that I disagreed with his framing of the issue.

Weisberg also notes that I didn't respond to the second point in his original post (which dealt with a purely legal issue), and he goes on to say this:

Many people (and I think Goldfarb is one) believe the correct sense of the 2nd Amend is this: “The right of the people to keep and bear Arms, for use in a State’s well regulated Militia, shall not be infringed.” But, if that is what the framers meant, why isn’t that what they wrote? I think that is a very fair question to ask, and it merits an answer. After all, 5 words would have been saved. Will corpus linguistics provide an answer?

I'm not going to offer any views in this series of posts about how I think the Second Amendment as a whole should be interpreted; I'm focusing only on Heller's interpretation of the phrase keep and bear arms. So I'm not going to say whether Weisberg is correct in his speculation about what I think on that score. Weisberg then asks why, if the framers had intended to convey the meaning he posits, they didn't write the amendment in those terms. Although Weisberg thinks that is "a very fair question to ask," I don't think it's a question that's relevant to the issue as the Court framed it in Heller, which had to do with how the Second Amendment's text was likely to have been understood by members of the public, not with what the framers intended. Nevertheless, I'll say that the question to which Weisberg wants an answer is not one that can be answered by corpus linguistics.

This is one of the important stories that I haven't had time to blog about over the past couple of months. Let's start with some of the more tasteful jokes, nicely presented using the rhetorical device of praeteritio — Constance Grady, "How an author trademarking the word “cocky” turned the romance novel industry inside out", Vox 5/15/2018:

Gentle reader: Before we delve into the long tale that lies ahead — a tale of hubris, furious romance novelists, and intellectual property law — I ask you to take a moment to contemplate all of the “cocky” puns to which I, your humble reporter, have heroically chosen not to subject you.

I will not snidely remark that someone’s feeling cocky. I will not call this a cocky-and-bull story. I will not lament that the whole thing was started by someone going off half-cockyed.

This is a sacrifice, and I have made it. Thank you for bearing with me. Now let’s get into it: This is the story of #CockyGate.

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.

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.

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.

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.

Is nothing sacred?

As the Washington Post explains ("Europe, not the U.S., is now the most powerful regulator of Silicon Valley", 5/25/2018):

Europe implemented a sweeping overhaul of digital-privacy laws on Friday that has reshaped how technology companies handle customer data, creating a de-facto global standard that gives Americans new protections and the nation’s technology companies new headaches.

It's also unleashed a flood of email notifications, typically consisting of long unreadable lists of legal weaseling. (Though I've gotten a few more entertaining instances, like the one in the image on the right, from a company that I was unaware of having any relationship with…)

In the comments 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 below, 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.

[Cross-posted on LAWnLinguistics.]

[Cross-posted on LAWnLinguistics.]

I’d imagine that most people who’ve been actively involved with corpus linguistics are familiar with the BYU corpora—a collection of web-accessible corpora created by Brigham Young University linguistics professor Mark Davies. These corpora (and BYU’s corpus-linguistics program more generally) have played an essential part in the development of what I’ll call the corpus-linguistic turn in legal interpretation. The BYU corpora served as my entry-point into corpus linguistics, and they have provided the corpus data that has been used in most of the law-and-corpus-linguistics work that has been done to date. And beyond that, the BYU Law School has played an enormous role, in a variety of ways, in Law and Corpus Linguistics becoming a thing.

One of the things that the law school has been doing has been happening largely behind the scenes. For the past two or three years, people there have been developing the Corpus of Founding Era American English (COFEA)—a historical corpus that is intended as resource for studying language usage in the time leading up to the drafting and ratification of the U.S. Constitution. At this year’s conference on law and corpus linguistics (the third such conference, all of them hosted by the BYU Law School), we were given a preview of COFEA. And via a tweet by the law school’s dean, Gordon Smith, I’ve now learned that a beta version of COFEA is up and available for public playing-around-with, as are beta versions of two other corpora: the Corpus of Early Modern English and the Corpus of Supreme Court of the United States.

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In the recent decision enjoining the suspension of DACA (but giving the government a 90-day mulligan), the court referred to the people who are affected by DACA’s suspension as “undocumented aliens” rather than “illegal aliens,” and it dropped a footnote explaining why it made that choice:

Some courts, including the Supreme Court, have referred to aliens who are unlawfully present in the United States as “illegal” instead of “undocumented.”  See, e.g.,  Texas  v.  United  States, (explaining that this “is the term used by the Supreme Court in its latest pronouncement pertaining to this area of the law”); but see  Mohawk Indust., Inc. v. Carpenter (using the term “undocumented immigrants”). Because both terms appear in the record materials here, and because, as at least one court has noted, “there is a certain segment of the population that finds the phrase ‘illegal alien’  offensive,” Texas v. United States, the Court will use the term “undocumented.” [pdf (citation details omitted)]

Although the court didn't similarly decide to use immigrant instead of alien, that may well be due more to the fact that alien is a frequently used term in the context of immigration law than to any view about the term's possible offensiveness.

The first case mentioned in the footnote, Texas v. United States, is the decision by the U.S. Court of Appeals for the Fifth Circuit that had enjoined the DAPA program (Deferred Action for Parents of Americans and Lawful Permanent Residents, which was related to but separate from DACA, which stands for Deferred Action for Childhood Arrivals). That decision used the term illegal aliens rather than undocumented aliens, but like Tuesday’s DACA decision, it explained its choice of terminology.

From Grice v. City of St. Robert (Mo. Ct. Ap. 1992) (citations omitted):

This court should not create an exception where none is present. Where a statute has no exception courts should not engraft one by judicial legislation. Words used in the statute must be accorded their plain and ordinary meaning. When language is plain and admits to but one meaning, there is no room for construction.