Corpus Linguistics, Public Meaning and the Second Amendment (2023)

Conservative legal scholars claim to focus on the text and nothing but the text when trying to discover the original public meaning of the Second Amendment. But it is not clear if the change had a single common meaning or if that meaning can be restored. This applies to all texts, not just legal ones. The best we can hope for when examining an ancient text is to examine how it was discussed at the time it was written and to use historical sources to determine the meaning of difficult or ambiguous words or phrases. And yet, there is no guarantee that a reasonable reader in 1791 would interpret the Second Amendment in the same way as his equally reasonable neighbor's. as the supremeDistrict of Columbia v Heller(2008) who had determined the original public meaning of the Second Amendment, their reading, like any linguistic interpretation, involved both an examination of the text and a degree of conjecture.

The modern concepts of textualism and originalism that drive the search for the true meaning of a law would have seemed foreign to earlier legal scholars.Eduardo Saunders, who called the words of a statute in 1571 a mere "end of the air". Saunders taught that the meaning of a law is not in the text but "in the minds of the interpreters of the words", both the legislators who make the laws and the judges like Saunders who interpret them. 1765Wilhelm SchwarzsteinHe also noted that legal interpretation may need to go beyond the text.

Still, any interpretation begins with the text, and when a word or phrase in that text is problematic, judges often turn to dictionaries for help. butlearned handhe warned in 1945 against making a fortress of the dictionary. maybe he was thinkingnothing against himcueva(1893), where the Supreme Court rejected the dictionary definition ofTomatoas a fruit because common people consider tomato as a vegetable. However, dictionaries are still popular legal tools. in theTaniguchiin. Kan Pacifico Saipan(2012), Justices Alito and Ginsberg cited a total of fourteen dictionaries in support of conflicting interpretations of the wordInterpreterin the respective statute. They even disagreed about the meaning of the same definition from two of these dictionaries.

Corpus linguistics, which some say is better than legal interpretation dictionaries, allows us to access and analyze large amounts of digitized text. Take this example of a case that has nothing to do with the Second Amendment. An early search of the corpus for the verb "port" played a role here.United States x Costello(2012), where Costello appealed his conviction for harboring a fugitive. The government denied the appeal, arguing that the 1917 Immigration Law dictionaries defined refuge as "accommodation". But Judge Richard Posner was not convinced. Searching in googlePortconfirmed his intuition that the word usually does not mean to protect someone, but to "hide" them from the authorities. A subsequent and more rigorous search of the corpus ofEsteban Th. Gries y Brian G. SlocumNote thatPortmore often it means "to accommodate" than "to hide". But in the context of immigration law penalties for "concealing, harboring, or protecting from detection" an alien, "concealing" seems fine. Costello made no effort to hide her elusive boyfriend, who openly lived in her house and went out in public alone and with her. She didn't protect him either. As Posner said, "'protect' doesn't seem like the right word to let your boyfriend move in with you."

Since Posner's foray into database searches, new corpora have emerged online, some of which allow us to search for English texts dating back to the fifteenth century. These new digitized historical collections have brought corpus linguistics to greater prominence in the courts. 2019 judgesAmul Thaparsuggested in a pensions case that corpus linguistics should become part of the judge's tool belt. and in your consentFacebook x Duguid(2021), case on automatic dialing by telemarketers, Minister Alito incorporated a plug for linguistic corpus. Alito questioned the court's reliance on the interpretive canons of the judiciary as guidelines rather than categorical rules of language, adding: "Perhaps one day it will be possible to assess these canons through what is called a linguistic corpus analysis, that is that is, a corpus analysis of how certain word combinations are used in a vast database of English prose".

A search of these digitized databases allows us to better understand some key elements of the meaning of the Second Amendment, although it is not clear whether the results of the corpus analysis will change the legal landscape. Finally, a Ninth Circle panel called for both sides to enterjones v. good, a challenge to a California gun law when corpus linguistics could determine the original public meaning of three Second Amendment phrases: "a well-regulated militia," "the right of the people," and "shall not be violated." responding to the court's question,complainantargued that corpus linguistics is a flawed tool for legal interpretation and proved his point with a flawed corpus analysis of his own. Eastcomplainantthey were more positive about the emerging field, but their own database searches revealed that corpus linguistics was of "limited use" for answering legal questions. The plaintiffs added an important caveat. While corpus analysis is a useful tool to guide legal interpretation, it cannot be easily performed by an untrained judge or lawyer and is best left to experts. In fact, corpus data has become an important tool for professional lexicographers in all major dictionaries.

Corpus linguistics was not discussed in the oral arguments.yoThat's it, and it remains to be seen whether the Ninth Circuit will incorporate the new methodology into its deliberations. But the corpus data has already provided important information about one of the most problematic provisions of the Second Amendment, "bear and bear arms."

In your opinion aboutHell,Justice Scalia argued that the mere meaning ofcarry gunsis simply "load a weapon":

Although [Beararms] implies carrying the weapon for the purpose of "offensive or defensive action", it in no way implies participation in a structured military organization. From our review of Wilhelmine sources, we conclude that this natural meaning was also the meaning of "bear arms" in the 18th century. In several cases, "bear arms" was used unambiguously to denote carrying arms outside of an organized militia.

(Video) Corpus Linguistics, Constitutional Interpretation, and the Right to Keep and Bear Arms

This statement contradicts the longstanding understandingcarry gunshas always been a military term, as we see when Judge Nathan Green wroteAymette vs State(1840), an antique briefcase hidden in Tennessee,

A man who hunts deer, elk, and buffalo may carry his gun every day for forty years, but he would never be said to carry guns; much less can it be said that a soldier carries arms because he has hidden a dagger or a pistol under his clothes, or a spear in a cane.

Green was not alone in that opinion. Survey of a historian, 2007saulo cornellI found more than 100 examples.carry gunsin Gründerzeit texts, 96 percent of which have a military context, a body of evidence that thehellMost shrugged.

The next exchange duringoral hearing inhelltry it toocarry gunsis military language, not synonymous with "carry a weapon." Attorney General Paul Clement said yes.carry gunsmeans "get them out of the house." Judge Souter asked him, "But wait a minute. You're not saying someone who goes hunting is carrying guns, are you?" Clement responded, "I would say yes, and so would Madison, and so would Jefferson." But Souter was not convinced: "In the 18th century, was someone going on a deer hunt considered to be carrying weapons? I mean, is that how they talk?" Clement, who is currently challenging New York State's gun license requirementNew York State Rifle and Pistol Association v. bruen, a case the Supreme Court will hear next term, finally granted, no, that's not how it's said: "I concede that 'bear guns' in its unaltered form is more naturally understood to convey a military context." , bear guns appear in their unaltered form in the Second Amendment.

Of the large digitized corpus,COFFEE SHOP, das Corpus of Founding Era American English undCOME, the Corpus of Early Modern English, were not available for Heller Court. but look for itI foundthat almost all of the approximately 900 different cases ofcarry gunsbefore and during the founding period refers to warfare, soldiers, or some other form of coordinated armed action by a group rather than an individual. Only seven hits tocarry gunsthey were ambiguous or did not have military connotations. Other researchers have found similar results using different search parameters.

Likewise,E. Gregory Wallacecollected six examples from the early days whencarry gunsit seems to "describe the carrying of weapons in individual and civilian contexts". A look at the full context from which these quotes are drawn (see appendix) reveals that they are all connected to a larger military narrative. Of course, the frequency is not the only definition of meaning, but the overwhelming frequency of military meaning.carry gunsit cannot be ignored in interpreting the Second Amendment.

James Madison certainly thought socarry gunsas a military man when he used the expression in both the well-known clause of the Second Amendment and the second clause that exempts "conscientious bearers of arms" from service in the military. This conscientious objection clause appeared in the first four drafts of the amendment. It was removed from the fifth version, but its presence reinforces the military character of thecarry guns🇧🇷 Judge Green thoughtcarry gunshe was in the army in 1840 when he ridiculed that hunters and criminals not carry guns. Ycarry gunswas still a military language in 1995, when the historiangarry willshe wryly remarked, "Don't arm yourself against a rabbit."

hold Guns,Smaller thancarry arms,it appears only thirty-eight times in COFEA and COEME. Twenty-five of the twenty-six relevant cases ofkeep gunsthey refer to weapons for military or militia use, and one is ambiguous. The military sense ofkeep gunsin these databases reinforces the military connotation ofcarry gunsin the second amendment.

Find the complete sentencehold and bear armsin COFEA and COEME shows that it only appears when the authors cite or allude to the Second Amendment. But that doesn't tell us whathold and bear armsmedium. both sides inhelloffered conflicting explanations. That is what Justice Stevens argued in his dissenting opinion.holdmiwearthey are practically synonymous and refer to a single right. But Justice Scalia rebutted this addition.holdbycarry gunsthat destroys any military sensecarry gunsmay have had sinceholdmeans "to possess" or "to own". Neither argument is satisfactory. It is true thatholdmiwearthey differ in meaning. but sincehold waffenoften invokes a military context andcarry gunsalmost always does, it is reasonable to conclude that they are combined in the phrasehold and bear armsreinforces the military context of the Second Amendment. In addition, a search in corpus of conjunctionshold and bearwithout specifying an object returns only 20 results, all followed bywaffen,which confirms that during the founding period no other things were kept or carried, only weapons.

plaintiff onejones v. goodhe also argued that a corpus search is fatally flawed because databases "prefer elite use over general use". They suggest that something like a cultural suspension is at work in the corpus: "The vast majority of American English-using farmers, tradesmen, and frontiersmen, not to mention enslaved peoples, indentured servants, or Native Americans, did not wrote or published any books". , pamphlets or pamphlets”. Like Justice Scalia, the plaintiffs want us to believe that ordinary people in the 18th century would have understood this.carry gunsIt has no military context. We would also be led to believe that the founding era of the American literary elite was preoccupied with the recent revolution, and therefore all clues about it.carry gunsin their writings they reflect this military history. For everyone else,carry gunsit simply meant "carrying a gun," even though these "ordinary" Americans had also witnessed the same revolution and were carrying guns. But a search of COEME, a database spanning from 1475 to 1800, confirms that non-military uses ofcarry gunsthey are rare in any kind of text, be it American or British, military, political, historical, religious, literary, philosophical, or fictional. almost without exceptioncarry gunsevokes a military image.

Many of the books, pamphlets and pamphlets written in the early days and collected at COFEA were read not only by the 'elites' but also by the general public. In addition, the growing number of newspaper databases gives access to texts that are clearly aimed at ordinary readers, not just the wealthy and political classes, and it is reasonable to assume that the language of newspapers is that of the same general public that read brochures. and pamphlets. , was easily understood by the sides. look for instances ofcarry gunsin newspapers from 1700-1800 in four databases—newspapers.com; Readex America Historical Newspapers; britishnewspaperarchive.co.uk from the British Library; and the Library of Congress's Chroniclinamerica.loc.gov page (whose digitized dates begin with 1777) confirms this.carry gunsit rarely appears outside of a clearly military context. results forkeep gunsin newspapers are more divided between military and non-military contexts. 1794 a quote tries to distinguishhold Guns,what the author proposes is an individual right, ofcarry arms,what is military: "We recognize that it is a sign of freedom to 'keep' arms, but to be forced to bear them...is proof of tyranny" ("The Soldier, No. 13",nuevo Bedford Marine Journal,Sept. 26, 1794, p. 1-2). But this distinction betweenkeep gunsmicarry gunsdifferent from what Scalia or Stevens inventedhell🇧🇷 It seems that the meaning of the expression keep and load weaponsremains controversial.

At least that is what all the corpora confirm.hellstay clearcarry gunsincorrect. It is true that ordinary people did not write as much as the conspirators. But there is no evidence that ordinary people in the federal era claimed thatrolling gunswhen hunting deer, elk, buffalo or rabbit. There is also no evidence that elite writers like Madison and the members of Congress who painstakingly edited and revised the Second Amendment fostered a non-elitist, non-military sense of self-awareness.carry gunsincluded in the amendment as a concession to unrecognized "ordinary" use.

And here's something else to think about. Everytown for Gun Safety filed an amicus briefNew York State Rifle against the beach(nowNew York State Rifle vs. Bruenon the way to the High Court), tracing gun laws from the English Charter of Northampton in 1328, through colonial, federal and territorial statutes, to state statutes of the 19th and early 20th centuries. These statutes show that England and the United States were never places where people freely and routinely carried guns, especially in urban areas. A quick perusal of these criminal statutes, some prohibiting open carry and others prohibiting concealed carry, shows that the verbs are associated with the possession of prohibited weapons, be they long guns, pistols, swords, swords on clubs, knives, Arkansas chopsticks, or metal anklets. , arewalk armed, ride armed, bear arms,mihave armsCriminals are not mentioned in any of these laws.carry arms.

This brings us back to the question of the original public meaning. To reiterate, it is not clear that any text has a single meaning that all would have shared. Not in the past. Not today. WhatAkhil Reed Amar,Josef Gienap, and others have shown that immediately after the Constitution was ratified, the framers who drafted, debated, and painstakingly revised its provisions openly disagreed about the meaning of what they had just passed. and the division intohellCourt offers a compelling modern example of dueling public meaning: Nine highly-skilled lawyers who have spent their entire careers analyzing legal meaning came up with two conflicting interpretations of the 27-word sentence that is the Second Amendment.

To make matters worse, likeposnerand others pointed out thathellMost, committed to textual originalism, boldly read Second Amendment ideas it did not expressly contain. Justice Scalia insisted that the framers "undoubtedly" had self-defense in mind when they drafted the amendment, even though self-defense does not appear in the text of the amendment, or anywhere else in the Constitution, its transmission or penumbra. On the other hand, the military appears explicitly in both Article I and the Second Amendment.

Corpus linguistics is an important tool and can lead us to a clearer understanding of the right to keep and bear arms. But it is not a miracle cure. The current majority on the Supreme Court can cling to the myth that bearing arms has nothing to do with being a soldier. After all, to paraphrase the infamous NRA slogan, words don't matter, people do. but say thathellreading the Second Amendment as it was understood in 1791 is as foolish as claiming that "planters, merchants, and frontiersmen," along with enslaved, indentured, and indigenous peoples, spoke a non-elitist version of English in the early Republic. , where soldiers, hunters and criminals routinely carried weapons. They just didn't talk like that. Such a statement not only ignores the many laws in England and the United States that regulate who can own guns and for what purpose, but alsothese laws that disarm slavesto avoid riots, and the fact that the southern states turnedmilitiasas essential for the control of enslaved people. Yes, corpus dates help us interpret the Second Amendment, but we shouldn't need corpus evidence or the imagined statements of an 18th century proletariat to know that soldiers carry guns, hunters carry guns, and scoundrels carry guns. 🇧🇷

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*To better illustrate how they spoke, the 18th and 19th century equivalents of modern expressions for being armed, such asheavy packing tied up,miupdated,containground, knotted, fixed, mialigned.

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Appendix: A detailed analysis of the examples by Gregory Wallace.

1. William RobertsonHistory of Charles V(1770; rpt. 1828, p. 43) refers to "women, orphans, and clergymen who could not bear arms in their own defense." Although this phrase suggests self-defense, it appears in a military history book, on a page about knights reusing their military skills to help defenseless civilians. Robertson describes German knights returning from their failed crusades, forced to use their military skills in internal policing: “To check the insolence of adult oppressors; rescue the helpless from captivity; protect or avenge women, orphans, and clergymen who could not bear arms in their own defense; Correcting injustices and remedying grievances were considered acts of supreme skill and merit. In this context, women, children and clergy were not expected to participate in military or quasi-military activities and were instead under the command of a national force, i.e. a militia. , defended.

2. Timothy Cunningham, emA new and complete legal dictionary,Banda 1 (1764),armor or weapons sv,offers this quote from as 12 Richard II, c. 6: "Servants and workmen must use bows and arrows, etc., on Sundays, and not carry other weapons." This quote combines two parts of the law and is not entirely accurate. The law was originally written in French, using the verb porter for the different senses of carrying, carrying, and carrying. The relevant part is

null servants of agriculture or workers who do not serve the artisan, not the Vitillerodo not usedesore enavant baslard dagger nespee…if not in times of war in defense of Roialme…myThey will goemployees and workers tielx Arkes & Setes & Leshave onthem dynges. [emphasis added]

The English translation en face, written after the French original, reads:

no servant of shepherds, nor laborer, nor servant [or] craftsman, nor shepherd, henceforthwearwithout [buckler,] sword, nor dagger. 🇧🇷 🇧🇷 but in time of war for the defense of the empire of England. 🇧🇷 🇧🇷 but such servants and workers mustTerbow and arrow andto useAlso on Sundays and holidays. [emphasis added]

Although it retains its military meaning today, the English verb iswearwas replaced byhave onin many contexts in the mid-17th century. This law, enacted in 1388, was a direct result of the Peasant Revolt of 1381 and the extreme labor shortage caused by the plague. While this law deals with the personal use of weapons, like later laws which on various occasions disarmed Scots, Irish, Protestants and Catholics, it seeks to prevent armed revolts against the Crown. But it turned out that Richard had more to fear from his knights than from the peasants and workers: a group of nobles supporting his rival Henry Bolingbroke forced Richard to abdicate in 1399, then imprisoned him, and finally assassinated him in 1400.

3. Wallace cites James Madison's Anti-Poaching Deer Conservation Act to the Virginia Legislature in 1785, a measure written byThomas Jeffersonin 1779. Anyone convicted of killing deer outside their own country and out of season would face additional penalty if in the following year they "removed a firearm from their enclosure, except while performing their military service". The illegal carrier of a gun would have to go to court for "any storage of a gun" to post an additional good conduct bond.

Although the law covers individual use of firearms for hunting, the law notes that carrying a firearm "in the performance of military service" remains legal, suggesting the possibility that the choice of verbwearis influenced by the military exception.

4. The epic poem of 1795M'FingalJohn Trumbull says: "A soldier, in accordance with his instructions, sold a rusty old musket for three dollars to a peasant who was bringing vegetables to market. This could not be a crime for the merchant, who had an unquestionable right to buy and bear arms.

This quote is from a footnote to the poem, apparently added by an anonymous publisher to the London edition of 1795. The anecdote in question concerns British soldiers in 1774-75 who accused an unsuspecting fellow Yankee, or him, of from being a malfunctioning weapon to make Americans look like aggressors and provoke a war. The general military context and the intention to portray a gullible peasant as a revolutionary soldier suggest that the right to bear arms in this case is related to military service.

5. Romance de 1799 de Charles Brockden Brown,Edgar Huntly: or, Memoirs of a Sleepwalker,contains this passage: "I fervently hoped that no new demand would arise which would compel me to use the arms I carried in my own defense" (London, 1803, vol. 3, p. 21).

Despite suggesting a context of personal self-defense, the narrative of this gothic novel, in which Huntly falls asleep in his own bed and wakes up in a cave, features the protagonist describing himself as a soldier going to battle and in the military imagination. and metaphors abound. In this broader contextcarry gunsit is consistent with the general military themes of the novel.

6. Finally, Wallace quotes a line from a play written by John Leacock:The Fall of British Tyranny: Or American Liberty Triumphant: "I will grant to the Catholics, who are by far the greatest number, the free exercise of their religion, with the liberty to bear arms so long unjustly deprived, and in due time, in due time, in turn, I will disarm all the Protestants . (London, 1776, p. 6).

In Locklaw's play, a mad King George III, thinly disguised as Lord Paramount, conspires with Mocklaw, his aide-de-camp, to overthrow Parliament by military force, sparking an American Civil War and forcing England and the colonies into submission. at your service. . absolute authority to submit. He will buy the loyalty of his peers, raise an army to defeat the English militia, half of whom "hardly ever fired a gun in their lives, especially in London," and offer them incentives to goad the Irish to his side. side: "I I will grant to the Catholics, who are by far the most numerous, the free exercise of their religion with freedom of arms unjustly deprived for so long, and in due time, in due time, I will disarm all Protestants to turn."

Thus, arming the Irish is part of the George/Paramount plan to stage a military coup to overthrow Parliament and reassert royal power over England and its colonies. In that context,carry gunsyou don't need to read it for hunting or personal self defense, but in a military sense. This is confirmed by the parliamentary proposals of the 1790s - not satirical but quite serious - to arm Irish Catholics to defend Ireland and the Empire from rebellion in the absence of British forces, reduced by the Napoleonic wars.