Posts Tagged ‘gun control’

Linguists on the Second Amendment

January 17, 2008

Here‘s an amicus brief in DC v Heller from a few linguists (via Language Log). An few excepts:

…On its face, the language of the Amendment tells us that the reason why the right of the people to keep and bear arms shall not be infringed is because a well regulated militia is necessary to the security of a free State. The purpose of the Second Amendment, therefore, is to perpetuate “a well regulated Militia.”

…In the case of the Second Amendment, we have shown that the absolute clause affirmatively states the cause or reason for the Second Amendment’s existence. That significantly affects the meaning of the main clause, for it gives us every reason to think that this Amendment never would have been adopted but for the fact that the Framers believed the absolute clause’s statement that a well regulated militia is necessary to the security of a free state. And if we know why a provision is adopted, we surely know something about the intended scope of that provision. The Second Amendment’s absolute construction was adopted as an integral part of the Amendment, and it cannot be “omitted” or wished away by trying to show that it no longer is true.

…The term “bear arms” is an idiom that means to serve as a soldier, do military service, fight. To “bear arms against” means “to be engaged in hostilities with.” The word “arms” itself has an overwhelmingly military meaning, referring to weapons of offense or armor of defense. In every instance we have found where the term “bear arms” (or “bearing arms” or “bear arms against”) is employed, without any additional modifying language attached, the term unquestionably is used in its idiomatic military sense.

Now I really can’t evaluate this; I’ve seen the exact opposite arguments made, both about the import of the first clause and about the meaning of the idiom “keep and bear arms.” I do tend to think that a 39-page paper on a single sentence is at least a potential sign of over-analysis (and of course this is far from the only, or the longest, such.)

But certainly that first clause is there for a reason; it’s a statement about an important assumption the framers made. The framers did not trust standing armies, and specifically tried to make it a little difficult for the young United States to have one (see the army clause in article I, section 8 of the Constitution: army appropriations can be for no longer than two years. There is no such restriction on the navy). Without a standing army, a well-regulated militia was very much necessary for the security of the new free state.

We no longer think this. We’ve had a large standing army since the Civil War. We no longer need to keep guns over our hearths to rise in defense of our beloved homeland. Much as we all enjoyed Red Dawn, that’s just not going to happen.

So what does that mean for The Second Amendment Today? How do you interpret something whose explicitly stated purpose is no longer meaningful? I’ve no idea. I suppose it depends on theories of legal interpretation, a subject that makes me queasy(*). I think either side can be argued equally reasonably. Or unreasonably.

In practice, of course, the interpretative debate boils down to endless political maneuvering and litigation. All these linguistic and historical analyses, fascinating and perceptive though they may be, are virtually irrelevant in themselves; they’re just so much grist for the political and legal mills. Debates like this are won, insofar as they are ever resolved at all, not by academic argument but by winning elections and appointing sympathetic judges.

Oh well, at least it’s entertaining.

(*) I’m pretty cynical about anything that depends on a particular interpretive theory. It’s too easy to choose a theory, or bend an existing theory, to get whatever result you want. No slight on our nation’s Judges/Justices and politicians and whatnot, it’s just human nature.

DOJ annoys EVERYONE in gun control case

January 14, 2008

The Department of Justice’s amicus brief in DC v. Heller, as I understand it (and IANAL), maintains that the Second Amendment secures an individual right, while also maintaining that said right is not absolute; and recommends the case be remanded to the lower court.  That is, the DOJ likes the “conservative” individual-rights interpretation of the second amendment, but doesn’t like absolute limits on the government’s authority.  I think that the DOJ, or at least Paul Clement, objects not to the result (overturning DC’s gun ban) but to the reasoning, and thinks the gun ban would fail under the lower level of scrutiny they recommend (see here). But I really don’t know, and that is not the point of the brief, which as I read it is more concerned with what precedents the case will set.

It pleases me that this rather reasonable position (I’m not saying whether I agree with it, just that it’s reasonable, much as it surprises me to say that any part of the current administration can be reasonable) has so angered the pro-gun people. (But note the NRA’s response is more measured.)

I’m now curious about i) what the liberals will say (if anything; this may be too moderate to inspire any entertaining liberal outrage), and ii) what effect this will have on Republican presidential politics.  Will all the candidates have to condemn this brief, with their fingers crossed behind their backs?