September 13, 2008

Bear Arms

There's no news like old news so here we go.

Those of you who pay attention to Supreme Court (a think I like to call the unloved step child of the governmental powers or the first second loser branch of government) might have noticed a ruling recently concerning gun laws in Washington DC and the second amendment. I must admit that I've always had my doubts about the second amendment to the US Constitution. These doubts have generally taken the form of mumbling to myself whenever I chance to hear someone yammering about "their second amendment rights." The thing is, I've actually read the second amendment. It doesn't take long since it's all of one sentence long.

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.

There, now you've read it too. If you ignore that first part, and all that comma business, and the meaning of bearing arms, the sentence reads just like the monument to gun rights that most people assume that it is. But, as long as your picking which part of the amendment to ignore, why not just ignore the second part or whole damn thing?

So, let me introduce you to an amicus brief, filed by some linguists regarding this very issue. They bring up two interesting points. The first has to do with that militia bit. The question is extent to which the right to "keep and bear arms" should be limited to the necessity of maintaining a well regulated Militia. In other words, because citizens are not longer called to bring their guns from there farms into a state regulated armed force, do we still have the right to keep and carry guns or are militias just one of many possible ways in which we could use the guns that we have the right to have and hold? Because of some arcane grammar (the ablative absolute in particular) and different possible interpretations of what it implies, I don't think that there is a clear answer to this question. You can read this post over at the language log if you want to wade through some of the thoughts on this issue.

The second interesting point, one which I do find entirely convincing, is about the meaning of "to bear arms". The idiom has fallen so far out of use that these days when someone says something about bearing arms we can be almost certain that they are referring to the second amendment. Without any outside context bearing arms means whatever we want the second amendment to mean and the fact that the Supreme Court does not have a centuries long record of interpreting this phrase makes the task more difficult.

Here's what the linguists mentioned above conclude after examining the use of the phrase in many different contexts within the 18th century:
The term “bear arms” is an idiomatic expression that means “to serve as a soldier, do military service, fight."...“By arms, we understand those instruments of offence generally made use of in war; such as firearms, swords, etc. By weapons, we more particularly mean instruments of other kinds (exclusive of fire-arms), made use of as offensive on special occasions.”...

So, a case can be made that in the second amendment to bear arms means to serve as a soldier and while it doesn't give individuals the right to have guns for self defense or hunting it does give homosexuals the right to serve in the military. That's right. Defend you second amendment rights and demand that gays serve openly in the military.

While this idea might seem confusing let me illustrate with a similar idiom that is still in use today - to bear children. Bearing children means to yield or produce children, to become pregnant and to deliver a baby. It doe not mean to carry a child in your arms. We can imagine that the founding father thought about reproductive rights when they wrote the Bill of Rights and came up with an 10.5th amendment as follows:

An uncoerced Motherhood, being necessary to the continuity and well being of a free State, the right of the people to keep and bear children, shall not be infringed.

Now, imagine that the phrase "to bear children" fell out of usage about 100 to 150 years ago. Then, for some reason a movement sprang up against anti-child-abduction laws stating that it was illegal for anyone to lift, carry or hold a child without the child's permission. This movement then demanded its "10.5th amendment right to bear children" by which they mean lift, carry or hold children. This movement becomes the only source using the term and over time the phrase comes to naturally be associated with the 10.5th amendment and lifting and holding children. Meanwhile, the state's one child policy seems not to be a 1o.5th amendment issue at all.

(Argents cigarette card via NYPL)


Christopher J Hoffman said...

Hogwash. Read the D.C. vs Heller decision. Scalia goes through this in painstaking scholarly detail. Citing reference after reference, it is perfectly clear that keep means own, possess, and store, and that bear means carry.

It is also made perfectly clear, how and why the first clause in no way limits the second.

Imagine applying this poster's logic an amendment which read: Books being necessary to maintaining an educated citizenry, the right of the people to keep and read books shall not be infringed.

If computers eventually negate the need for books, would we still have a right to own books?

the unbeatable kid said...

keep literally means to own, and bear literally means to carry but to “keep a garden” does not literally mean to own a garden and as I explained above to “bear children” certainly does not mean to literally carry children. To understand keeping a garden or bearing children in a literal way is to misunderstand the idioms.

the argument that I’m repeating here comes from scholarly sources, who also cite “reference after reference” in support of their reading.

i have read this book version of the second amendment before (i believe that it was in the work of nelson lund) but was unconvinced that this interpretation is definitive. reading the second clause as completely dependant on the conditions of the first clause seems just as plausible. not being familiar with proper usage of the "absolute phrases", i am at a lost to differentiate between the split opinions of experts.

the biggest problem with the lund’s reading (I wouldn’t go so far as to say that it is a fatal flaw but it is a problem) is the implication that the first clause is little more than a literary flourish and the law’s meaning stays the same with or without it. So, why did the writers keep it in if it was meaningless? The style of the constitution in general and the bill of rights in particular is sparse. read the rest of the bill of rights and you won’t see any other clause that could be thought of as optional. The fourth amendment is a great example:

the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…

i believe that the second amendment would look a lot more like that if militias were not relevant to the right to keep and bear arms. it doesn’t start with reasons why one might want to be protected from unreasonable searches and seizures although the founders could doubtless think of a few. it quickly and precisely states the rights it affords and moves on.

but, I don’t think that this post was meant to give a definitive reading of the second amendment. what I wanted to do was to show that alternate readings exist that are not hogwash. i would invite anyone who wants to read the justices themselves stating their cases to download a this pdf.

and, in a certain sense, the argument is pointless. the decision was 5-4 against gun control laws and most people familiar with the court could have told you how the justices would vote beforehand even knowing nothing of the linguistics of the second amendment. What really interests me is that because of the evolution of the English language a sentence, which probably seemed perfectly straightforward to the founders can be so difficult to pin down today.

Diggs said...

Gigster - With the exception of Clarence Thomas (and O'conner while she was on the bench), every justice cites, "reference after reference." If you actually read the decision it is hard to see how somebody could claim that the interpretation of the 2nd amendment is "perfectly clear." Unless of course your evaluation of every case rests upon which interpretation can count to 5 first.

As a side note, unbeatable's superflous comment should have been analyzed further in the decision. The idea that the judiciary should give full meaning and effect to legislative action represents a cannon of judicial interpretation found in ALL judicial philosophies. An interpretation that renders certain sections of a statute or constitution superflous is generally disregarded. Unless of course you disagree with the outcome - something Scalia is well known for - blasting justices when they don't adhere to traditional modes of interpretation, yet abandoning such methods when he hates the outcome.