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)

Bill of State Rights

In 1833 the Supreme Court of the United States ruled in Barron v. Baltimore that the Bill of Rights, the first 10 amendments to the US Constitution, were applicable only in protecting citizens from actions of the federal government. Chief Justice John Marshall ruled that the people of the United States established the US constitution for their government, not for the government of the individual states.

-From Mass Media Law by Pember and Calvert (07-08 ed.)

Strange that I never heard of that before. The application of the Bill of Rights to state governments seems to have been established almost 100 years after the founding of the country by way of the 14th amendment and it's statement that no state can infringe on its citizen's liberties of which the liberties granted in the Bill of Rights is presumed to include.

People jaw so much about the US constitution in this country that they forget all about their state constitution. I'm sure my brother knows a lot more about it than I do.

Above the Bar

It's a week late but congratulations to my brother and my good friend Kiran on their graduation from law school. Apparently, that means that they get to work real hard for the next couple months to study for the bar. Best of luck you guys.


(A trial at the Old Bailey in London as drawn by Thomas Rowlandson and Augustus Pugin for Ackermann's Microcosm of London (1808-11))

Me Brain So Confuseded

The other day, someone asked me if I though that a certain disease was essentially a mental or physical problem. My knee-jerk response was "What's the difference?"

I didn't mean that question rhetorically either. It may be that the years of practicing Chinese Medicine have confused me but I'm having trouble distinguishing what should be considered essentially mental verses physical. In the Chinese medical system that I use, your mind and your body are two aspects of the whole being that is you. Distinctions between the two are generally academic. But, in Western philosophy, the mind and the body are distinct objects that can only interact in very specific ways if at all and the distinction is all important for treatment.

The thing that confuses me is that the boundary between what is considered the mind and body keeps shifting. Like in WWI, you climb out of your trench one day to find that you're on the wrong side of no-mans land. One interesting thing about the boundary is that the mind side has been losing ground for hundreds of years now. First, the entire world is a conscious entity governed by God, then it's just the animals, then just us, then just our brains, etc.

This subject came up in a recent article in the New York Times Magazine and really got the old thought gears spinning for me. The question is this: To what extent are people with physical or chemical brain abnormalities responsible for criminal acts? Are the brain abnormalities responsible instead? To follow this approach here are some links you should check out:

New York Times Magazine Article on Neurolaw

Jeffrey Rosen discusses Neurolaw on Fresh Air

To suggest that criminals could be excused because their brains made them do it seems to imply that anyone whose brain has a physicological change could be absolved of responsibility for their actions. You get a system that is one small step away from saying, "It's not my fault. I made me do it." The human being becomes just a helpless theme park goer strapped in for the ride of life. I am no longer the captain of my destiny and my decisions but merely the captain of my own roller coaster ride.

Certainly there are many circumstances where people due to the influence of chemicals, drugs, or mental disorders do things that they wouldn't ordinarily do. I'm not trying to deny this reality at all. But, there are many forms of evidence that can be used other that investigation of the physical brain that can determine this. One need not look any farther than the correlation between lower back pain and MRI results showing disc herniation to find that diagnostic tests are often misleading compared to subjective reports.

My biggest problem with this kind of science in the courtroom is that science as a whole has nothing to say about the nature of thought, morality and justice. These are concepts foreign to the very nature of science. Asking for a scientific explanation of society and consciousness is like asking a vegetarian to cook a steak for dinner; It's bound to be an unpleasant experience for all.

Also, just as the physiology of our brain may influence thought so might thought influence the physiology of our brain. It's a two way street people. You can listen to this Talk of the Nation for an example.

(Poster of a giant brain for La GHEBIA 1919. via The Beinecke Library. Image of Lee O'Neil Browne in court 1910 by a Chicago Daily News photographer via American Memory)

I Like it Here. It's Nice.

From this month's Harper's index:

• Percentage of American adults held in institutions (prisons or mental) in 1953 and today respectively: 0.67%, 0.68%
  
• Percentage of institutionalized adults in 1953 in mental institutions: 53%
  
• Percentage of institutionalized adults in prison today: 97%

So, half of those we call criminals today were called mental patients in the 50's. The other possible interpretation is that crime is way up in exact proportion to the amount insanity is way down. Seems unlikely. I discussed these numbers a few months ago with my mom and she thought that the numbers indicate that we are using jails as proxies for mental institutions. There is probably some of that going on but as a whole that explanation feels incomplete.

To me, these numbers indicate that crime and mental health are mere rationalizations for removing people from society. I would go farther to say institutionalization performs some function for society that needs to be justified in clear terms like crime and mental health but probably is much more difficult to understand.

Here's another tidbit from Harper's index that's also justice related:

• Amount by which the salary of Judge Judy exceeds the salaries of all nine Supreme Court justices combined: $26,000,000

(The photo is from Women of Protest: Photographs from the Records of the National Woman's Party, Library of Congress)