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Being-constructions in historical corpora and the US Second Amendment (pre-publication draft).pdf

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The gun control debate in the U.S. revolves around the interpretation of the Second Amendment to the U.S. Constitution. Due to over 200 years of language change, this Amendment is confusing and ungrammatical for modern readers. Analysts of the
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  This is a draft. Final version to appear (open-access)  English Studies 99. 3 (2018): 1-19.  Being -clauses in historical corpora and the U.S. Second Amendment Karen Sullivan School of Languages and Cultures, University of Queensland, Brisbane, Australia Email: uqksull@gmail.com Address: School of Languages and Cultures, Gordon Greenwood Bldg. (32), University of Queensland, St. Lucia 4072, Australia ORCiD: 0000-0002-5486-0247  This is a draft. Final version to appear (open-access)  English Studies 99. 3 (2018): 1-19.  Being -clauses in historical corpora and the U.S. Second Amendment The gun control debate in the U.S. revolves around the interpretation of the Second Amendment to the U.S. Constitution. Due to over 200 years of language change, this Amendment is confusing and ungrammatical for modern readers. Analysts of the Amendment have taken into account the etymology of many of its words, but the present study is the first to examine the syntactic changes that have caused the Amendment’s current ungrammaticality , and to assess the syntactic interpretations of the Amendment that were available at the time of its writing. The present study rejects most of the readings of the Amendment previously suggested by legal scholars and journalists, and assesses the remaining interpretations according to their probability. Keywords: present participles; adverbial clauses; corpus linguistics; constitutional law; srcinalism; gun control 1. The importance of historical linguistics in constitutional interpretation It’s well known that language change can make older texts difficult to understand. For example, modern viewe rs of Shakespeare’s  Romeo and Juliet   are sometimes confused when Juliet asks, “Wherefore art thou Romeo?” The word wherefore “why” has disappeared from present-day English, so some viewers interpret wherefore as “where”, and think that Juliet is wondering where Romeo is, instead of regretting that his name is Romeo. The mutability of language may be most apparent in literary contexts. However, language change is an issue for interpreting older texts of all kinds. In the U.S., language change has become increasingly relevant to legal studies with the rise of srcinalist approaches to constitutional interpretation, according to which the meaning of the U.S. Constitution was fixed at the time of its writing. Since American English has  This is a draft. Final version to appear (open-access)  English Studies 99. 3 (2018): 1-19. continued to evolve since this time, srcinalist legal interpretations require a reconstruction of the form of English employed either by the framers themselves (in an “srcinal intent” variety of srcinalism) or by ordinary speakers of the variety of English spoken in the region a t the time (in an “srcinal meaning” approach to srcinalism). Either srcinalist approach requires an appreciation of language change. Without a thorough understanding of how American English has evolved since the framing era, present-day readers cannot understand the srcinal meaning or intent of certain words and grammatical constructions in the Constitution, and will experience some of the same issues faced by present-day viewers of  Romeo and Juliet  . Originalist legal scholars have increasingly recognized that their approach relies on historical linguistic research. Supreme Court Justice Scalia expresses this view in the 2008 majority opinion of The District of Columbia v. Heller  , which found that a prohibition on handguns violated the Second Amendment to the U.S. Constitution. In this statement, Scalia maintains that “the examination of a variety of legal and other sources to determine the public understanding   of a legal text” is “a critical tool of constitutional interpretation” . 1   In linguistic terms, Scalia’s “examination” would be considered a historical corpus study, that is, the analysis of a collection of historical texts (a corpus) to determine the history of a word or grammatical construction. The study reported in  Heller   draws from a very large corpus, in that Scalia cites primary-source word usages from British and American legal texts, dictionaries, and newspapers, spanning the period 1689  —  1891, plus more recent secondary sources. However, the study does not exhaustively or systematically examine this corpus. For example, the study does not include all newspapers for the 200-year period it considers, 1  Heller, 32, emphasis in the srcinal.  This is a draft. Final version to appear (open-access)  English Studies 99. 3 (2018): 1-19. nor does it randomly choose examples from this set. The study relies mainly on legal texts, though this seems at odds with th e stated goal of modelling “the public understanding” of the words in question, as required by Scalia’s “srcinal meaning” approach. There is also some truth in the accusation raised in Justice Stevens’ dissenting opinion in  Heller    that “The Court’s atomi stic, word-by-word approach to construing the Amendment calls to mind the parable of the six blind men and the elephant” in which each blind man touches a different part of the same elephant and “each concludes that h e has learned its true nature” . 2  It is of course necessary to examine each word in the Amendment to interpret its srcinal meaning. However, the syntax is equally important. The Second Amendment reads as in (1). (1) A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. To a modern reader, the syntactic interpretation of the Second Amendment is not obvious. The New Yorker   author Toobin writes that the Secon d Amendment “is, as a whole, ungrammatical” . 3  A paper in the  NYU law review   refers to the text as “this deepl y confusing amendment” , 4  and a piece in The Yale Law Journal  nominates it as “one of the worst drafted” provisions in the Constitution. 5  Although t he Amendment’s syntax seems strange to speakers of present -day English, there is no reason to assume that the Amendment was ungrammatical, 2  Heller, 17, footnote 14. 3  Par. 2. 4  Williams, 830. 5  Levinson, 644.  This is a draft. Final version to appear (open-access)  English Studies 99. 3 (2018): 1-19. confusing or even poorly drafted at the time it was written. American English has changed in several ways that have made the Amendment less comprehensible to present-day speakers. On the most superficial level, conventions of punctuation have  become increasingly standardized since the Amendment’s writing. 6  For example, the first and third commas in the Amendment may seem superfluous to modern readers because these would be omitted in the modern system of punctuation. Fortunately, these commas have little effect on the interpretation of the Amendment and are not considered significant in any analysis of the Amendment. The second comma, on the other hand, was influential in Parker v. Dist. of Columbia and will be discussed later. More significantly, lexical changes have affected several words in the Amendment, which has led to controversy over the meaning of  Militia, the people, arms  and keep . 7  Lexical changes can affect a passage’s interpretation , as demonstrated by well-known examples of misunderstood words such as wherefore   “why” in  Romeo and  Juliet  . Reconstruction of the framing-era meanings of  Militia, arms , and other words in the Amendment is an essential part of rebuilding its srcinal meaning. On the other hand, it is grammatical change, not lexical change, that has caused the Amendment to currently appear ungrammatical. Yet no analysis of the Amendment has considered the history of the grammatical constructions it incorporates. The present study argues that the grammatical construction that connects the two clauses of the Amendment has changed over the past few hundred years, and that these changes are responsible for the Amendment’s current ungrammatical ity. The study also demonstrates that most previously suggested readings of the Amendment are incompatible with the use and form of this grammatical construction in late 18 th -century 6  Parkes; Freedman. 7  Baron et al.; Heller; Levinson; Volokh; Williams, The Unitary Second Amendment  ; Williams, Civic Republicanism .
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