{"id":43812,"date":"2019-07-29T20:02:36","date_gmt":"2019-07-30T01:02:36","guid":{"rendered":"https:\/\/languagelog.ldc.upenn.edu\/nll\/?p=43812"},"modified":"2019-08-29T17:35:45","modified_gmt":"2019-08-29T22:35:45","slug":"corpora-and-the-second-amendment-keep-and-bear-arms-part-1","status":"publish","type":"post","link":"https:\/\/languagelog.ldc.upenn.edu\/nll\/?p=43812","title":{"rendered":"Corpora and the Second Amendment: \u201ckeep and bear arms\u201d (part 1) (updated)"},"content":{"rendered":"

An introduction and guide to my series of posts \u201cCorpora and the Second Amendment\u201d is available here<\/a>. The corpus data that is discussed can be downloaded here<\/a>. <\/em>That link will take you to a shared folder in Dropbox. Important: <\/em>Use the \"Download\" button at the top right of the screen. <\/small><\/p>\n

COFEA and COEME: lawcorpus.byu.edu<\/a>.<\/small><\/p>\n

This was supposed to be the final entry in my series of posts on the Second Amendment, but I\u2019ve decided to split the discussion into two parts.<\/p>\n

In my last post, I concluded that as used in the Second Amendment, bear arms <\/em>was most likely understood to mean \u2018serve in the militia.\u2019 The question that I\u2019ll address here and in my next post is whether that conclusion is changed by the fact that the Second Amendment protects not simply \u201cthe right of the people to bear arms\u201d but \u201cthe right of the people to keep and<\/strong> bear arms.\u201d<\/p>\n

The corpus data on keep and bear arms<\/em> 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\u2019t deal with the corpus data at all in this post, and I\u2019ll deal with only a relative handful of concordance lines in the next one (though those lines will play an important role in the analysis).<\/p>\n

Taken together, these two posts will provide an extended rebuttal of the portion of Heller<\/em> (consisting of only four sentences) that raised the question that these posts will address. Those four sentences were part of the court\u2019s argument that bear arms<\/em> as used in the Second Amendment couldn\u2019t possibly have been understood in its idiomatic military sense:<\/p>\n

[If bear arms<\/em> were given its idiomatic meaning,] the phrase \u201ckeep and bear arms\u201d would be incoherent. The word \u201cArms\u201d would have two different meanings at once: \u201cweapons\u201d (as the object of \u201ckeep\u201d) and (as the object of \u201cbear\u201d) one-half of an idiom. It would be rather like saying \u201cHe filled and kicked the bucket\u201d to mean \u201cHe filled the bucket and died.\u201d Grotesque.<\/p><\/blockquote>\n

When I first read Heller<\/em>, this struck me as a pretty strong argument. But I\u2019ve rethought the issue since then, and have come to think that the argument is seriously flawed. At this point, although I don\u2019t dismiss the argument altogether, I don\u2019t think it rules out interpreting bear arms<\/em> in the Second Amendment to mean \u2018serve in the militia.\u2019<\/p>\n

THE PROBLEM WITH the court\u2019s argument isn\u2019t its premise; it\u2019s true that interpreting bear arms<\/em> in the Second Amendment as an idiom would result in arms<\/em> having the two meanings that the court refers to. But the conclusions the court draws from that premise aren\u2019t valid. A word that appears only once in a phrase can in fact convey two different meanings, and it can do so without making the phrase incoherent. Moreover, the factors that make filled and kicked the bucket<\/em> a train wreck aren\u2019t present in keep and bear_arms<\/em>military<\/sub>.<\/p>\n

As evidence that incoherence doesn\u2019t always result from a single use of a word conveying two meanings, I offer the examples below (in some of which, as in filled and kicked the bucket<\/em>, the Janus-faced word functions both as an ordinary direct object of one verb and as part of an idiom that includes the other verb):<\/p>\n

They took the door off its hinges and went through it.<\/p>\n

John expired yesterday and so did his driver\u2019s license.<\/p>\n

The farmers grew potatoes and bored.<\/p>\n

Mr. Pickwick took his hat and his leave. (Dickens, The Pickwick Papers<\/em>.)<\/p>\n

Miss Bolo rose from the table considerably agitated, and went straight home, in a flood of tears, and a sedan-chair. (Dickens, The Pickwick Papers<\/em>.)<\/p>\n

By the time we left the bar, I\u2019d bought him three drinks as well as his argument.<\/p>\n

He drowned his cat and his sorrows.<\/p>\n

This is the city of broken windows and dreams.<\/p>\n

The addict kicked the habit and then the bucket.<\/p>\n

[The uncredited examples are taken (or adapted) from Cruse, Lexical Semantics<\/em> (1986) (link<\/a>), and Solska, \u201cAccessing multiple meanings: The case of zeugma\u201d (pdf<\/a>).]<\/small><\/p>\n

Although none of these examples are incoherent, they all come across like puns. That phenomenon is known as ZEUGMA<\/small>. \u00a0But not all cases of a single use of word that's understood as conveying two meanings are zeugmatic. If the two meanings are related to one another, the sense of oddness that is felt in cases of zeugma can be absent:<\/p>\n

The red book on my nightstand is really interesting.<\/p>\n

red book on my nightstand<\/em> (book as physical object)<\/p>\n

book\u2026is really interesting<\/em> (book as text)<\/p>\n

The bank on the corner just fired all its tellers.<\/p>\n

bank on the corner<\/em> (bank as building or premises in building)<\/p>\n

bank \u2026 fired all its tellers <\/em>(bank as employer and financial institution)<\/p>\n

The door was smashed in so often that it had to be bricked up. [from Cruse.]<\/p>\n

door was smashed in so often<\/em> (door as the part that opens and closes)<\/p>\n

door had to be bricked up<\/em> (door as doorway)<\/p>\n

[Update: I've modified the first of these examples to try to avoid a possible complication raised by a comment to me.]<\/small><\/p>\n

The phenomenon at work in the previous three examples is often referred to in the linguistics literature as CO-PREDICATION<\/small>.<\/p>\n

Although co-predication differs from zeugma only in that co-predication does not evoke the same feeling of oddness that zeugma does, there is as far as I\u2019m aware no label for the category that includes both phenomena. Since it would be helpful to have such a label, I\u2019m going to appropriate copredication<\/em> for that purpose, and when I need to refer to one of the two varieties, I\u2019ll specify which one.<\/p>\n

HAVING ESTABLISHED that copredication doesn\u2019t necessarily cause incoherence, all that\u2019s left of the court\u2019s argument is the analogy between filled and kicked the bucket <\/em>and keep and bear arms<\/em>, <\/sub>and the judgment of grotesquerie. I don\u2019t dispute that judgment, but the analogy doesn\u2019t hold.<\/p>\n

The court apparently thought that because both kick the bucket<\/em> and bear arms<\/em> in its military sense are idioms, the unacceptability of using filled and kicked the bucket <\/em>to mean \u2018filled the bucket and died\u2019 compels the conclusion that it would have been similarly unacceptable in the Founding Era to use keep and bear arms<\/em> to mean \u2018keep weapons and serve in the militia.\u2019 And that belief, in turn, presumably rested on the assumption that the idiomatic use of bear arms<\/em> was constrained in the same way that the idiomatic use of kick the bucket<\/em> is constrained today. But that assumption isn\u2019t justified.<\/p>\n

In order to understand why that\u2019s so, it\u2019s necessary to understand what it means to say that an expression is an idiom. As I said in an earlier post<\/a>, an idiom is an expression whose meaning can't be derived compositionally. In other words, the expression's meaning isn't simply a function of the meaning of its parts and of the way that they are syntactically combined. That\u2019s clearly what Scalia meant in using the word, because what makes the military sense of bear arms <\/em>an idiom is that its meaning can\u2019t be derived from the separate meanings of bear<\/em> and arms<\/em>.<\/p>\n

If you have any doubt on that point, keep in mind that if Justice Scalia had wanted to tell you the definition of idiom<\/em>, he would have gone<\/a> to Webster\u2019s New International Dictionary<\/em>, Second Edition, in which the relevant entry is as follows (my emphasis):<\/p>\n

An expression established in the usage of a language, that is peculiar to itself either in grammatical construction (No, it wasn\u2019t me) or in having a meaning which cannot be derived as a whole from the conjoined meanings of its elements<\/strong> (Monday week<\/em>, that is, the Monday a week after next Monday; many a<\/em>, that is, many taken distributively; had better<\/em>, equivalent to might better<\/em>; how are you?<\/em>, that is, what is the state of your health or feelings?).<\/p><\/blockquote>\n

Now here\u2019s the thing. The contrast between compositional meanings and idiomatic meanings isn\u2019t a binary distinction between pure compositionality on one side and pure idiomaticity on the other. Rather, it\u2019s a continuum, along which the relative degrees of compositionality and idiomaticity vary from one expression to another. (See the discussion of this in one of my earlier posts<\/a>, which draws on the corpus data to illustrate the point.)<\/p>\n

The fact that there are different gradations of idiomaticity comes into play when we think about the extent to which keep and bear_arms<\/em>military<\/sub> is or is not analogous to filled and kicked the bucket.<\/em><\/p>\n

As an idiom, kick the bucket <\/em>is at or near the extreme idiomatic end of the scale. It is almost impossible for us to figure how the meaning \u2018die\u2019 can be derived from a phrase whose compositional meaning is \u2018move one\u2019s leg so as to cause one\u2019s foot to make forceful contact with a bucket.\u2019 And there is no semantic or conceptual connection between dying and filling a bucket.<\/p>\n

In contrast, the figurative use of arms<\/em> in idiomatic bear arms <\/em>was (and still is) semantically related to the literal use of arms<\/em> as meaning \u2018weapons.\u2019 The relationship was one of\u00a0 METONYMY<\/small>\u2014the phenomenon in which a something is referred to, not by its specific name, but by the name of something that is closely associated with it, such as when the press<\/em> is used as a way to refer to journalists and the work of journalism and when the White House<\/em> is used as a way to refer to the president and their staff. The association between weapons on the one hand and military service and war on the other is obvious, and presumably would have been obvious during the 18th century as well, given that both senses were in common use<\/a>.<\/p>\n

That association would most likely have carried over to the idiomatic use of bear arms<\/em>, and was probably strengthened by an association between that idiomatic use and the use of bear arms <\/em>to mean \u2018carry weapons.\u2019 However, I suspect that the association was due more to the figurative use of arms<\/em> than to the literal sense of bear arms<\/em>. Because although for most of us today it is probably the literal sense that seems dominant (or primary, basic, central, what have you), that was probably not true of Americans in the late 18th century. Back then the idiomatic use was more frequent than the literal use, by an order of magnitude, and as a result the military sense of the phrase was probably experienced as being more salient. That probably would have been what bear arms<\/em> first brought to mind and what would have been more significant culturally.<\/p>\n

In light of the metonymic relationships I\u2019ve been discussing, Heller<\/em>\u2019s analogy between keep and bear arms<\/em> and filled and kicked the bucket<\/em> doesn\u2019t hold up. More important, the metonymies that I\u2019ve been discussing are relevant to the question of how keep and bear arms<\/em> is likely to have been understood during the Founding Era.<\/p>\n

Specifically, work in psycholinguistics and neurolinguistics suggests that when the text of the Second Amendment was read, the mental circuitry associated with both of the senses of arms<\/em> and of bear arms<\/em> was activated. The fact that bear arms <\/em>was an idiom would probably have contributed to that activation as well, because when an idiom is read or heard, both the literal meanings of the words making up an idiom and the idiomatic meaning as a whole are generally activated.<\/p>\n

Whatever the source of the activation, it would have occurred below the level of conscious awareness, but it would have played a role in the process leading to the reader\u2019s fixing on a particular reading of keep and bear arms<\/em>. And it\u2019s likely that the activation of both the figurative and literal senses or arms<\/em> would have been a necessary prerequisite to keep and bear arms<\/em> being understood copredicatively, with arms<\/em> being understood literally as part of the compositionally-derived phrase keep\u2026 arms<\/em> but figuratively as part of the idiomatic phrase bear arms<\/em>.<\/p>\n

Update:<\/strong> I recently had an interesting and helpful conversation with Ted Gibson<\/a> about the issues I've been discussing, and he suggested a simpler way to think about what makes filled and kicked the bucket <\/em>seem so awful and about why keep and bear arms<\/em> could have been more acceptable.<\/p>\n

The problem with filled and kicked the bucket<\/em>, Gibson suggests, is that conjoined phrases (e.g., A and B<\/em> or This, that, and the other<\/em>) generally combine expressions that are related in some way that's relevant to the context, but when we read filled and kicked the bucket <\/em>without any supporting context, there's no apparent reason to think that dying has anything to do with filling a bucket. However, in a context in which there were a substantial-enough connection between the two, the phrase would be more acceptable.<\/p>\n

It's hard to come up with such a context for filled and kicked the bucket<\/em>, but consider these vignettes, each of which ends with a phrase structurally similar to filled and kicked the bucket<\/em> and keep and bear arms<\/em>:<\/p>\n

Chris had a small business selling paperback books door to door. She had no employees, so she had to do everything herself. She maintained a spreadsheet where she recorded all the money that came in and went out. So Chris both sold and kept the books<\/strong>.<\/p>\n

One day Chris visited her friend Charles. The weather was beautiful: clear skies, pleasantly warm with low humidity, a little wind but not too much. So Chris and Charles went outside to enjoy and shoot the breeze<\/strong>.<\/p>\n

While these come off as rather contrived\u00a0 (no surprise—they are<\/em> contrived), they're much more acceptable than the court's example of filled and kicked the bucket.<\/em><\/p>\n

Under an interpretation in which bear arms<\/em> is understood idiomatically, the right to keep and bear arms<\/em> could be seen as being analogous to the two vignettes (though without the need for the additional context) because the semantic relationship between the figurative meaning of arms<\/em> and the literal meaning would presumably have apparent to 18th-century readers.<\/p>\n

I\u2019ll have more to say about the comprehension process in my next post. For now, my purpose in bringing it up has simply been to show that Heller<\/em>\u2019s analogy between filled and kicked the bucket<\/em> and keep and bear arms<\/em> was inapt.<\/p>\n

I\u2019ll have more to say about the comprehension process in my next post. For now, my purpose in bringing it up has simply been to show that Heller<\/em>\u2019s analogy between filled and kicked the bucket<\/em> and keep and bear arms<\/em> was inapt.<\/p>\n

For anyone who is interested, the following are some of the sources that have informed the two paragraphs preceding the update: Klepousniotou et al., \u201cNot all ambiguous words are created equal: An EEG investigation of homonymy and polysemy\u201d (2012) (link<\/a>); MacGregor et al., \u201cSustained meaning activation for polysemous but not homonymous words: Evidence from EEG\u201d (2015) (link); Ortega-Andr\u00e9s & Vicente, \u201cPolysemy and co-predication\u201d (2019) (link<\/a>); Vulchanova et al., \u201cBoon or Burden? The Role of Compositional Meaning in Figurative Language Processing and Acquisition\u201d (2019) (link<\/a>).<\/small><\/p>\n

Once the argument based on filled and kicked the bucket <\/em>is disposed of, there\u2019s nothing left in the Heller<\/em> opinion to justify the court\u2019s insistence that arms<\/em> couldn\u2019t have meant two things at once.<\/p>\n

Nevertheless, there are two arguments that would, if they were valid, provide the missing justification. The first would be that copredicative interpretations inherently conflict with principles of legal interpretation, on the ground that a single instance of a word can have\u00a0 only one meaning. The second would be that during the Founding Era, keep and bear arms<\/em> could not have been understood in a way that depended on copredication.<\/p>\n

However, I don\u2019t think either of those arguments is valid. I will deal with the first argument in this post, and second in my next post.<\/p>\n

—♦—<\/strong><\/p>\n

THE ACCEPTABILITY of copredicative interpretations in appropriate cases is established by three Supreme Court cases, which I will discuss in chronological order.<\/p>\n

The first case is one that you may have heard of: District of Columbia v. Heller<\/em>.<\/p>\n

Although the members of the Heller<\/em> majority didn\u2019t realize it, their interpretation of bear arms<\/em> is structurally parallel to the interpretation they rejected. In both, arms<\/em> \u201c[has] two different meanings at once: \u2018weapons\u2019 (as the object of \u2018keep\u2019) and (as the object of \u2018bear\u2019) one-half of an idiom.\u201d Because while it\u2019s true that the meaning of bear arms <\/em>is idiomatic under the military interpretation, it is also idiomatic under the court\u2019s interpretation, albeit to a lesser degree.<\/p>\n

Recall that the court in Heller<\/em> said that in the 18th century, bear<\/em> meant \u2018carry\u2019 and arms<\/em> meant \u2018weapons.\u2019 Both of those statements by the court are oversimplifications, as explained in my posts on bear<\/em><\/a> and arms<\/em><\/a>, but let\u2019s accept them for now. Because if those are the separate meanings of bear<\/em> and arms<\/em>, the fully compositional meaning of bear arms<\/em> would be \u2018carry weapons.\u2019<\/p>\n

But that\u2019s not what the court said bear arms<\/em> meant. Rather, it said that \u201cwhen used with \u2018arms,\u2019\u2026the term has a meaning that refers to carrying for a particular purpose\u2014confrontation.\u201d More specifically, the court said that the \u201cnatural meaning\u201d of bear <\/em>in bear arms<\/em> in the 18th century was \u201cwear, 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.\u201d (Ellipses in the opinion have been omitted.)<\/p>\n

I\u2019ve criticized<\/a> that interpretation, but that criticism isn\u2019t relevant to the present discussion; the issue I\u2019m focusing on now isn\u2019t whether the interpretation is correct but whether it is at least partly idiomatic. And the simple answer is yes: under the court\u2019s interpretation the phrase bear arms<\/em> means something different from the separate meanings of bear <\/em>and arms.<\/em> While \u2018carry weapons\u2019 is part of what bear arms<\/em> means under the court\u2019s interpretation, the limitation to carrying weapons only for a specific purpose doesn\u2019t come from the separate meanings of the individual words. That means that under the court\u2019s interpretation, bear arms<\/em> in its military sense is partly compositional and partly idiomatic.<\/p>\n

At this point I need to note that there is a possible complication, but ultimately it is a non-issue. The part of the Heller <\/em>opinion I\u2019ve been discussing purports to be interpreting only the word bear<\/em>, not the phrase bear arms<\/em>. But that is, as we lawyers like to say, a distinction without a difference. By the court\u2019s own reasoning, bear<\/em> means \u2018carry [something ] for purposes of confrontation\u2019 only in the phrase bear arms<\/em>. But that being the case, \u2018carry for the purposes of confrontation\u2019 isn\u2019t what bear <\/em>means on its own.<\/p>\n

Functionally, there\u2019s no difference between saying on the one hand that bear<\/em> has\u00a0 a special meaning when it appears in bear arms<\/em>, and on the other hand that bear arms<\/em> is at least partly idiomatic because the meaning of the phrase as a whole can\u2019t be derived from the individual meanings of its components. Those are just different ways of describing the same phenomenon, and while most of us are accustomed to thinking of the basic units of meaning as being words, one of the insights that has emerged from corpus linguistics and corpus-based lexicography has been that in many cases, it makes more sense<\/a> to focus on larger units, such as phrases.<\/p>\n

LESS THAN A YEAR AFTER deciding Heller<\/em>, the Supreme Court decided a case in which it interpreted a federal statute in a way that was indisputably copredicative. The case was United States v. Hayes<\/em><\/a>, and like Heller <\/em>it involved a restriction on owning firearms. It also happens to have been the case in which I first filed an amicus brief<\/a> that drew on linguistics.<\/p>\n

Hayes<\/em> involved a federal statute that made it illegal for anyone who had been convicted of a \u201cmisdemeanor crime of domestic violence\u201d (abbreviated MCDV) to own a firearm. At issue was how to interpret the statute\u2019s definition of an MCDV:<\/p>\n

[The] term \u201cmisdemeanor crime of domestic violence\u201d means an offense that\u2014<\/p>\n

(i) is a misdemeanor under Federal or State law; and<\/p>\n

(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim.<\/p>\n<\/blockquote>\n

The defendant, Randy Hayes, had been convicted in 1994 of committing battery under a statute that was not targeted specifically against domestic violence and that therefore applied whether or not the victim was the defendant\u2019s \u201ccurrent or former spouse, parent, or guardian.\u201d However, the victim had been the woman who was then his wife. Ten years later, police came to the Hayes\u2019s house in response to a 911 call reporting domestic violence, and they discovered that he was in possession of a rifle. He was charged and convicted under the MCDV statute.<\/p>\n

The issue before the Supreme Court was whether Hayes\u2019s 1994 conviction had counted as an MCDV given that although he had been convicted of using physical force and his victim had been his wife, the statute he was convicted of violating did not specify such a family relationship as one of its elements. In other words, the government had been able to convict him in 1994 without having to prove that his victim had been his wife. Thus, the court was faced with two competing interpretations of the definition of misdemeanor crime of domestic violence<\/em>. Under the interpretation that Hayes argued for, his prior conviction did not count as an MCDV because his marital relationship with the victim was not part of what the government had been required to prove in order to convict him. In contrast, the government argued that the 1994 conviction did amount to an MCDV, because Hayes\u2019s victim had in fact been his wife.<\/p>\n

The linguistic issue was whether on the one hand the relative clause \u201ccommitted by a current or former spouse, parent, or guardian of the victim\u201d modified the phrase that immediately preceded (\u201cthe use or attempted use\u2026.), as argued by Hayes and as shown below\u2014<\/p>\n

\"\"<\/a><\/p>\n

or whether on the other hand it modified \u201can offense,\u201d as argued by the government\u2014<\/p>\n

\"\"<\/a><\/p>\n

What\u2019s relevant for present purposes is that under the government\u2019s interpretation, the provision was copredicative. Specifically, the phrase an offense<\/em> means one thing as to clause (i) and something different as to clause (ii). With respect to clause (i)\u2014an offense that is a misdemeanor<\/em>\u2014the word offense <\/em>denotes a particular type<\/strong> of crime, while with respect to clause (ii)\u2014an offense that\u2026committed by<\/em>\u2014it denotes a specific<\/strong> instance of such a crime (in technical terms, a TOKEN<\/a><\/small> of the type). My brief flagged this, but didn\u2019t offer an opinion as to whether it was likely to affect how the provision would be understood.<\/p>\n

On the broader issue of how the statute\u2019s language would ordinarily be understood, my brief supported the defendant\u2019s interpretation\u2014a position that was based entirely on the linguistic issues. But the Supreme Court ruled in favor of the government, with Chief Justice Roberts and Justice Scalia dissenting.\u00a0 Thus, the Supreme Court interpreted the statute in a way that made it copredicative. This is clear from the following statement by court (paragraph breaks added for clarity; my comments in curly brackets):<\/p>\n

Most sensibly read, \u2026 [the statute] defines \u201cmisdemeanor crime of domestic violence\u201d as a misdemeanor offense that (1) \u201chas, as an element {TYPE<\/small> interpretation}, the use [of force],\u201d and (2) is committed {TOKEN<\/small> interpretation} by a person who has a specified domestic relationship with the victim.<\/p><\/blockquote>\n

Now, I don\u2019t think any of the Justices realized that the majority\u2019s interpretation had this consequence. Nothing in either the majority opinion or the dissent reflecting any awareness of the issue. And although the issue was mentioned\u00a0 in my brief, that reference was on page 36 (out of 38), and if anyone actually read that far, their eyes might have glazed over by that point.<\/p>\n

THIS BRINGS US to the third case that\u2019s relevant to whether copredicative\u00a0 interpretations can be acceptable: United States v. Davis<\/em><\/a>, a Supreme Court case that was decided a month ago.<\/p>\n

Davis<\/em> involved a statute that was similar in its structure to the one in Hayes<\/em>. The statute is 18 U.S. Code section 924(c), which provides that if anyone uses or carries a firearm \u201cduring and in relation to a crime of violence or drug trafficking crime,\u201d they are subject to a mandatory sentence of at least 5 years in addition to the penalty for the underlying crime.<\/p>\n

At issue in Davis<\/em> was the statute\u2019s definition of a \u201ccrime of violence\u201d:<\/p>\n

For purposes of this subsection the term \u201ccrime of violence\u201d means an offense that is a felony and\u2014<\/p>\n

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or<\/p>\n

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.<\/p>\n<\/blockquote>\n

It was a given that subparagraph (A), with its reference to the \u201celement[s] of the offense,\u201d \u00a0calls for a TYPE<\/small>; interpretation; the issue to be decided was whether subparagraph (B) similarly called for such an interpretation, or instead called for a TOKEN<\/small> interpretation. Under the latter alternative, the definition would be copredicative in essentially the same way as in Hayes<\/em>.<\/p>\n

This time the choice between the two readings was presented to the court explicitly (though without using the terminology of copredication). The government argued in favor of the copredicative alternative, and it pointed to Hayes<\/em> as support for its argument that such an interpretation was permissible.<\/p>\n

The court ruled that a copredicative interpretation was not warranted with respect to the statute at issue, but all nine justices agreed that copredicative interpretations are permissible in appropriate cases (though they didn\u2019t use that terminology). The four dissenting justices\u2014Kavanaugh, Roberts, Thomas, and Alito\u2014favored the copredicative interpretation, and in support of that argument they relied on Hayes. <\/em>And although the majority disagreed, it didn\u2019t reject the idea of such an interpretation altogether: \u201cIt\u2019s possible<\/em> for surrounding text to make clear that \u2018offense\u2019 carries a double meaning. But absent evidence to the contrary, we presume the term is being used consistently.\u201d<\/p>\n

While Davis<\/em> makes explicit what was implicit in Heller<\/em> and Hayes\u2014<\/em>that copredicative interpretations are permissible in appropriate circumstances\u2014it remains uncertain what it would take for the court to conclude in a specific case that such an interpretation would be justified. On the one hand, Davis <\/em>says that the context must \u201cmake [it] clear that [the word at issue] carries a double meaning,\u201d but on the other hand it indicates that the presumption of consistent usage can be overcome by \u201cevidence to the contrary,\u201d without specifying how strong the\u00a0 evidence must be.<\/p>\n

More importantly, Davis<\/em> and Hayes<\/em> point in opposite directions on that issue, because on purely linguistic grounds the justification for a copredicative interpretation was weaker in Hayes<\/em> than it was in Davis<\/em>. The most obvious difference between the two provisions is that in the statute at issue in Davis<\/em>, it is clear beyond doubt that subparagraph (B) modifies \u201can offense\u201d and that it is grammatically independent of subparagraph (A), while in the statute at issue in Hayes<\/em>, the phrase \u201ccommitted by a [family member] of the victim\u201d is more naturally read as modifying the verb phrase that immediately precedes it (\u201cthe use or attempted use of physical force, or the threatened use of a deadly weapon\u201d). For the details, I refer you to my amicus brief<\/a> in Hayes<\/em> and Chief Justice Roberts\u2019s dissenting opinion<\/a>.<\/p>\n

 <\/p>\n

Cross-posted on LAWnLinguistics<\/a>.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

An introduction and guide to my series of posts \u201cCorpora and the Second Amendment\u201d 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 […]<\/p>\n","protected":false},"author":42,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[82,11,253],"tags":[],"class_list":["post-43812","post","type-post","status-publish","format-standard","hentry","category-idioms","category-language-and-the-law","category-psycholinguistics"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/languagelog.ldc.upenn.edu\/nll\/index.php?rest_route=\/wp\/v2\/posts\/43812","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/languagelog.ldc.upenn.edu\/nll\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/languagelog.ldc.upenn.edu\/nll\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/languagelog.ldc.upenn.edu\/nll\/index.php?rest_route=\/wp\/v2\/users\/42"}],"replies":[{"embeddable":true,"href":"https:\/\/languagelog.ldc.upenn.edu\/nll\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=43812"}],"version-history":[{"count":22,"href":"https:\/\/languagelog.ldc.upenn.edu\/nll\/index.php?rest_route=\/wp\/v2\/posts\/43812\/revisions"}],"predecessor-version":[{"id":44230,"href":"https:\/\/languagelog.ldc.upenn.edu\/nll\/index.php?rest_route=\/wp\/v2\/posts\/43812\/revisions\/44230"}],"wp:attachment":[{"href":"https:\/\/languagelog.ldc.upenn.edu\/nll\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=43812"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/languagelog.ldc.upenn.edu\/nll\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=43812"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/languagelog.ldc.upenn.edu\/nll\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=43812"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}