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.

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.

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.

Last week the Washington Post published an op-ed by Michael Anton arguing that the United States should do away with birthright citizenship—the principle that anyone born in the United States is a U.S. citizen, even if their parents are foreign-born noncitizens. The op-ed has attracted a lot of attention from people on both the left and the right, and by “attention” I mean “condemnation”. (E.g., Garrett Epps at The Atlantic, Mark Joseph Stern at Slate, Dan Drezner at the Washington Post, Robert Tracinski at The Federalist, Alex Nowraseth at The American Conservative, and Jonathan Adler at Volokh Conspiracy. See also this Vox explainer.)

The criticism both on on Anton’s nativism, but also on his interpretation of the 14th Amendment, on which birthright citizenship is based. One of the interpretive moves for which Anton has been criticized is his handling of a statement made on the floor of the Senate while the proposed text of the 14th Amendment was being debated. And that dispute turns on the resolution of a syntactic ambiguity.

Let me try to pull together the information from my previous two posts, and add information that I'm seeing on Twitter. I will update this as I get more information.

Service-providers looking for interpreters. Much of the interpreting that is needed can be done by phone, so geographic location shouldn't be an issue.

RAICES: volunteer@raicestexas.org.

American Immigration Council. The person to contact is Crystal Massey, but the website doesn't give her email address. The general "Contact Us" page is here. (Added June 24, 2018.)

Service-providers that might need interpreters. These are names of groups that someone posted on Twitter; I don't know whether they're actually looking for interpreters.

In addition interpreters being needed to help detainees communicate with their lawyers, there is an urgent need for medical personnel who can speak Central American indigenous languages (or, failing that, presumably for interpreters to work with English- and Spanish-speaking medical personnel). This is a Facebook post that Emily Bender has sent me:

PLS RT. NEED HELP. Looking for people who speak Meso-American indigenous languages (e.g., zapotec, nahua, ma'am, quich'e, maya, mixe, mixteco) to translate remotely (via telephone) for immigrant families speaking with their lawyers. Email support@l4gg.org.

— #L4GG (@lawyers4goodgov) June 22, 2018

Please spread the word.

[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":

[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?