Linguistic scholarship at the Supreme Court
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John Brewer writes:
Today's majority opinion by Justice Gorsuch in Bondi v. Vanderstok cites (on its page 10 of the opinion, which is the 13th page of the linked pdf) "S. Grimm & B. Levin, Artifact Nouns: Reference and Countability, in 2 Proceedings of the 47th Annual Meeting of the North East Linguistic Society (NELS 47) 55 (2017)." That's a pretty unusual sort of citation to see in a judicial opinion, in my experience.
He also drops a footnote mentioning the amicus brief filed by various "Professors and Scholars of Linguistics and Law," which in turn cites authorities ranging from the SCOTUS-friendly (Scalia & Garner) to the perhaps less-known-in-those-circles Huddleston & Pullum.
For a description of the context and consequences of the cited case, see Abbie VanSickle, "Supreme Court Upholds Biden Administration’s Limits on ‘Ghost Guns’", NYT 3/26/2025:
The Supreme Court on Wednesday upheld federal restrictions aimed at curtailing access to kits that can be easily assembled into homemade, nearly untraceable firearms, a rare move by a court that has taken an expansive view of gun rights.
In a 7-to-2 decision, written by Justice Neil M. Gorsuch, one of the court’s conservatives, the justices left in place requirements enacted during the Biden administration as part of a broader effort to combat gun violence by placing restrictions on so-called ghost guns.
Justice Gorsuch included photographs, unusual in court opinions, to illustrate how one of the gun kits, Polymer80’s “Buy Build Shoot,” came with “all of the necessary components to build” a Glock-style semiautomatic weapon. He wrote that it was “so easy to assemble” that it could be put together in about 20 minutes.
“Plainly, the finished ‘Buy Build Shoot’ kit is an instrument of combat,” Justice Gorsuch wrote, adding that no one would confuse the pistol “with a tool or a toy.”
…or given John's reservations about that article, check out some of these…
Here's the opinion's citation to Grimm & Levin:
Plainly, the finished “Buy Build Shoot” kit is an instrument of combat. No one would confuse the semiautomatic pistol pictured above with a tool or a toy. Of course, as sold, the kit requires some assembly. But a number of considerations persuade us that, even as sold, the “Buy Build Shoot” kit qualifies as a “weapon.”
Consider, first, a feature of ordinary language. The term “weapon” is an artifact noun—a word for a thing created by humans. Artifact nouns are typically “characterized by an intended function,” rather than by “some ineffable ‘natural essence.’ ” S. Grimm & B. Levin, Artifact Nouns: Reference and Countability, in 2 Proceedings of the 47th Annual Meeting of the North East Linguistic Society (NELS 47) 55 (2017).3 Reflecting as much, everyday speakers sometimes use artifact nouns to refer to unfinished objects—at least when their intended function is clear. An author might invite your opinion on her latest novel, even if she sends you an unfinished manuscript. A friend might speak of the table he just bought at IKEA, even though hours of assembly remain ahead of him. In both cases, the artifact noun fits because the intended function of the unfinished object is obvious to speaker and listener alike.
The citation to Scalia & Garner is on pp. 26-27 of the amicus brief:
Respondents, as well as the Fifth Circuit, take the omission of “designed to or may readily be converted to” from subparagraph (B) to be a meaningful exclusion. Pet. App. 17a; VanDerStok Opp. 12-13; Defense Distributed Opp. 14. They conclude on that basis that “frame or receiver” extends only to operable frames and receivers. That is, they invoke the “meaningful variation” canon of statutory interpretation, which is a version of the Consistent Usage canon. See Scalia & Garner, Reading Law: The Interpretation of Legal Texts 170 (2012). The meaningful variation canon states that, “where the document has used one term in one place, and a materially different term in another, the presumption is that the different term denotes a different idea.” Id.
But as Scalia and Garner explain, “[n]o canon of interpretation is absolute…. It is a rare case in which each side does not appeal to a different canon to suggest its desired outcome.” Scalia & Garner, supra, at 59. The frequent availability of conflicting linguistic canons calls their use into question and has even led some commenters to describe their use as “embarrassing.”
The citation to Huddleston & Pullum comes in a footnote on p. 14 of the amicus brief:
The construction used here (“the … Kit, a powerful and compact firearm”), with a comma or hyphen separating the full product name from a descriptive phrase, conveys that the speaker believes that the kit is a firearm.11
11 Specifically, this is an illustration of an “ascriptive [noun phrase] supplement.” See Huddleston & Pullum, The Cambridge Grammar of the English Language 1357 (2022) (the first part of example [19iib], “Kim Jones, a quite outstanding student, won a scholarship to MIT,” is equivalent in meaning to [19ib], “Kim Jones was a quite outstanding student.”).
John continues:
That brief has an interesting discussion of a survey some of the professors conducted to elicit native-speaker intuitions on the linguistic question the case presented. Although I am inclined to think that the actual Court should give zero weight to any survey where there was no opportunity for the side against whom it is being used to cross-examine those who conducted it.
The list of amici who filed briefs on the other side doesn't have any group names that sound linguistics-focused but some of them could of course have made linguistics-informed arguments. I haven't clicked through enough links to know one way or another.
Rick Rubenstein said,
March 26, 2025 @ 4:39 pm
Yeah, right. Next they're going to try to convince us IKEA sells furniture.
J.W. Brewer said,
March 26, 2025 @ 5:33 pm
Let me correct two typos in my email as blockquoted above which myl accurately block-quoted without cleaning up.
1. For "which it turns cites" substitute "which in turn cites." I think that was a Damn-You-Autocorrectism.
2. For "which is the 13th page of the opinion" substitute "13th page of the linked pdf" (where the syllabus takes up a few pages before the opinion proper gets underway). That was probably a "thinko."
Separately, I don't think the quoted bits of the VanSickle article in the NYT are particularly accurate in describing the Court's actual decision, but this is not Legal Analysis Log, so rather than expound further upon that I will simply encourage readers of this thread to do their own googling in search of different journalistic explanations.
Mark Liberman said,
March 26, 2025 @ 5:42 pm
@J.W. Brewer:
Typos are fixed, and I've added a general Google News link.
Can you recommend an article with a better summary of the opinion and its context? Maybe Mark Stern in Slate?
Or do you want one that foregrounds the opinion's textual analysis?
Robert T McQuaid said,
March 27, 2025 @ 2:01 am
Can you tell the difference between a model airplane kit and the assembled toy? Or between a jigsaw puzzle and the assembled picture? The supreme court is using informal language use to abolish the distinction.
Benjamin E. Orsatti said,
March 27, 2025 @ 7:27 am
Westlaw to the rescue:
Synopsis
Background: Firearm manufacturers and others brought action against United States Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) under Administrative Procedure Act (APA), contending that ATF's final rule defining term “firearm” as including some partially complete, disassembled, or nonfunctional frames or receivers and weapon parts kits was facially inconsistent with definition of “firearm” in Gun Control Act of 1968 (GCA). The United States District Court for the Northern District of Texas, Reed O'Connor, J., 680 F.Supp.3d 741, granted plaintiffs' motion for summary judgment and vacated rule. Government appealed. The United States Court of Appeals for the Fifth Circuit, Engelhardt, Circuit Judge, 86 F.4th 179, affirmed in part, vacated in part, and remanded. Government's certiorari petition was granted.
Holdings: The Supreme Court, Justice Gorsuch, held that:
1 certain weapon parts kit, prior to assembly, constituted “weapon” within meaning of GCA's definition of “firearm”;
2 same weapon parts kit was capable of being readily converted to expel projectile by action of explosive;
3 ATF rule treating certain weapon parts kits as “firearms” was not facially inconsistent with GCA's definition of “firearm”;
4 ATF rule treating partially complete frames and receivers as “firearms” was not facially inconsistent with GCA's definition of “firearm”; and
5 certain partially complete frame constituted “frame” within meaning of GCA's definition of “firearm.”
Reversed and remanded.
To Robert T. McQuaid,
Don't you think a fair semblance can be made between a firearm and a kit where any difference may be permanently obliterated within the span of 20 minutes? I don't think an assassin's bullet could.
J.W. Brewer said,
March 27, 2025 @ 7:35 am
@myl: My primary problem with the NYT story is its first sentence where "upheld federal restrictions" without adding something like "against a facial challenge." Which is jargony but very important, because the way the majority framed the case (one of the dissenters thought this was the wrong framing), the challengers had to show that NO kits could be lawfully covered by the regulation whereas all the majority said was that *some* non-zero percentage of kits could be lawfully covered and which specific ones are and aren't covered is to be sorted out case-by-case in the lower courts, who for all we know might end up ruling that only a fairly small percentage of the kits currently on the market are covered. It's at least possible that kits that require as much work to assemble into a working gun as the stereotypical more-frustrating-than-you-thought-it-would-be-beforehand IKEA furniture item will not be covered.
For all I know that was explained more fully in the paywalled NYT story if you scrolled down far enough past the excerpted bit, but here's a piece that I thought explained that aspect fairly well: https://www.abajournal.com/web/article/supreme-court-upholds-ghost-gun-regulations-includes-photos-to-illustrate-parts-kits-covered-by-law
The other problem with the NYT excerpt is not explaining even briefly in the first graf what "curtailing access to" meant in context. All that the reg does to kits it may lawfully apply to is treat the kit the same as the completed gun. If you can legally buy a pistol from a licensed federal firearms dealer after truthfully filling out the required paperwork (which most adult U.S. residents can), you can buy an easy-to-complete kit for a similar pistol the same way. Which is not nothing, but it's IMHO better framed as a "closing a loophole" thing. (Also, the pistols the licensed dealer can sell you are generally required to have serial numbers on them to make it easier to trace one allegedly used in a crime, so kits subject to the reg would need to do that as well.)
Justice Thomas' dissent makes an interesting counterargument that could perhaps be explained or explored with linguistics scholarship he didn't necessarily cite. It is generally illegal under current U.S. law (absent special authorization which some people do have) to own a fully-automatic weapon but generally legal (unless you fall into a subcategory of people subject to greater restrictions) to own a semi-automatic weapon. But many semi-automatic weapons can be illegally converted to have fully-automatic functionality in a fairly short amount of time using fairly commonly-available tools and without particularly specialized skills. But treating a legal weapon that can be "readily converted" into an illegal weapon as subject to the same restrictions as the illegal weapon would of course be a perverse result. And one could multiply similar examples: a perfectly legal shotgun of ordinary barrel length is readily convertible into an illegal sawed-off shotgun. A difference, of course, is that we might sensibly assume that most people who buy kits intend to assemble them while most people who buy legal guns do not intend to convert them into illegal guns even if it is not all that hard to do so. So maybe the kit is really an "unfinished object" that can fall within the semantic scope of the lexeme for the relevant finished object while the readily-convertible-to-illegality gun is already a "finished legal object" and that somehow blocks reconceptualizing it as an "unfinished illegal object"?
Yves Rehbein said,
March 27, 2025 @ 10:18 am
how many pieces can you change and how many take away until its not a boat anymore – that's a millenium old problem, and not a deeply linguistic one.
J.W. Brewer said,
March 27, 2025 @ 11:16 am
@Yves Rehbein: That millennia-old quandary pops up explicitly a bit later in Justice Gorsuch's opinion, in a section that reads:
Just because some kits, like Polymer80’s, qualify as “weapons” that “can readily be converted” into working firearms does not mean all do. Think of the problem of the heap: Start with a heap of sand and begin removing grains; at some point, a heap no longer exists. That problem attends many artifact nouns. Even when used to capture unfinished products, artifact nouns generally reach only so far. It would be extravagant to speak of a novel when the author has dashed off only a few lines. Few would call a pile of unfinished logs a table. Subsection (A) may present a similar problem. Weapon parts kits vary widely. See Part I–A, supra. Not all come as complete as the “Buy Build Shoot” kit. Some, too, may require more time, expertise, or specialized tools to finish. And at some point a kit may be so incomplete or cumbersome to assemble that it can no longer fairly be described as a “weapon” capable of “read[y] . . . conver[sion]” into a working firearm. §921(a)(3)(A).
While we recognize the problem, this case does not require us to untangle exactly how far subsection (A) reaches.
Ethan Glasser-Camp said,
March 28, 2025 @ 8:26 pm
Leaving aside the political aspects, I was struck by John Brewer's phrasing of "He also drops a footnote" (of Justice Gorsuch). To my ear, this meaning of "drop" (meaning something like "release" or 'publish") has connotations of AAVE or rap culture, where a default object might be something like "album". By contrast, "footnote" feels very academic.
J.W. Brewer said,
March 29, 2025 @ 1:10 pm
@Ethan G-C: It's not the same usage. It's much older and is accordingly used by people (like me) who usually don't speak of e.g. a new hip-hop release intransitively dropping or being transitively dropped by the recording artist. I think the visual metaphor behind the use is the image that the footnote is at the bottom of the page and thus "drops" from wherever in the text above the small superscript number/symbol referring you to it is printed.
Earliest usage I can quickly find in the google books corpus ("At this figure both sources drop a footnote that give[s] further details.") is, itself in a footnote presumably written by one of the co-editors (Amelia W. Williams and/or Eugene Campbell Barker), in the 1938-published Volume 8 of "The Writings of Sam Houston, 1813-1863." As that shows, it's perhaps in a somewhat informal register yet still used by people who work with texts and their editing/interpretation in what would typically be a formal-register context, whether that be the preparation of academic-press books or the analysis of judicial opinions.
You can find uses within a decade or two after that in the published transcripts of Congressional committee hearings that are metaphorical: Senator so-and-so says he wants to drop a footnote about X, meaning in context mention something that's a bit of a digression or an aside before returning to his main point. I can easily imagine a lawyer using that same extended metaphorical sense when doing oral argument in court, which is a fairly high-register context, even if sometimes a little bit more colloquial that the register you might use in written submissions to the same court.
Philip Taylor said,
March 29, 2025 @ 1:17 pm
Unfortunately "to drop" can also mean "to omit" (from a team, etc.), so if one "drops a footnote" that could be intrepreted as the deliberate omission of same.