To outsiders, modern American society seems to be such a contradictory mashup of comfortable, consumer lives in pursuit of happiness—and sudden, violent deaths. Why does ordinary life in the US seem so much deadlier compared to other developed nations, such as Canada or Australia?
After being banned from doing so for two decades, the CDC may at last be allowed to research why America has such a terrible problem with so many people getting shot all the time. Whether it’s people or guns that kill people, as the NRA slogan goes, there’s no doubt that guns, not just harmless tools, are weapons specifically designed to kill and injure. And yet guns are astonishingly both widely accessible (even to children) and inconsistently regulated across the country.
This loving of firearms not wisely, but too well, has led to pretty horrifying stats like: more Americans have been killed by gun deaths just since 1968 than have ever been killed “bearing arms” in all U.S. wars—ever. Unsurprisingly, stats also show that the more guns a country has, the more gun deaths there are—and the U.S. has a staggering 270 million privately-owned firearms, half of which are owned by only 3% of the population, and the other half owned by another 19%. That’s a very vocal minority that has a major influence on blocking gun legislation. What’s more, mass shootings are very much on the rise, the most recent at Margory Stoneman Douglass High School in Parkland, Florida, in which seventeen people, the majority of them children, were gunned down by a teenager with an easily and legally-accessible military grade weapon.
On the flip side, it’s important to respect that for many law-abiding, gun-owning Americans, the second amendment has come to represent something almost sacred, a celebration not only of culture and heritage, but of personal liberty. Any attempts to change these rights can understandably seem like an attack.
It seems simple at first, and yet, this being America, it clearly isn’t that simple.
It’s not just about guns—it’s also about grammar.
The Grammar of the Second Amendment
A confusing and pedantic debate over language has insidiously redefined the very reason the second amendment exists. There are legitimate linguistic questions as to whether individual gun rights with few restrictions, as they’re culturally perceived now, were even constitutionally intended in the first place.
So let’s revisit what the second amendment of the constitution actually says, and what it might mean:
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 modern eyes, it’s not the clearest piece of legal text ever drafted. The founders’ colonial dialect is decidedly not the same American English spoken, or even written, today. It’s important to remember how much words can change over time. The archaic structure of two clauses seemingly mashed together has led some legal analysts to assume it must be ungrammatical (it is not) and the first part doesn’t really matter, while others have fought tooth and claw over its errant commas. (Perhaps editors were scarce when the founders scrawled out the constitution on a bar napkin?). Just as the founders’ grammar might confuse us, so might their eighteenth-century words. Therein lies the trouble.
Thanks to the legal interpretive dance that passes for a linguistic analysis of ye olde tyme language of the second amendment, so often truncated as the right to “bear arms,” many Americans have come to believe that there is a constitutionally-protected right for every individual citizen to amass an armory of sophisticated modern weaponry if they so choose, of a kind never imagined, much less defined by the founders, without a side of sensible gun control. This assumption, long promoted by aggressively motivated and mobilized gun lobbyists, has become an uncomfortably central part of America’s culture, seemingly unassailable. (Only one amendment has ever been repealed, the eighteenth, so that people could finally have a stiff drink).
About That “Militia” Clause…
The longstanding debate over these words boils down to this: did the founders draft the second amendment as single meaningful text, in which all parts provide meaning in the same context, or is it actually in two puzzlingly separate parts, the first “militia” clause being kind of a blithe hand wave, with the “bear arms” clause being more crucial? Furthermore, if the phrase “bear arms” had a primarily military meaning, this makes a big difference as to whether the second amendment protects the people’s collective right to certain arms, as part of a well-regulated militia, or an individual’s right to have any firearms for no reason at all.
Joseph Blocher states that the traditional reading is the first, that “the Second Amendment was long understood by many if not most courts and scholars to protect state militias from disarmament by the federal government. […] The phrase ‘keep and bear arms’ was read as referring to the possession and use of weapons in connection with militia service.”
The individual right to own and carry guns with minimal restrictions, or how the public now interprets the second amendment, was only very recently ratified in 2008, 5 to 4, by the District of Columbia v Heller decision. The opinion by Justice Antonin Scalia redefined many of the words in the text to support the new interpretation.
Justice Scalia, like many conservative constitutional scholars, championed using textualist or originalist principles to support his reading of the law. That means using the actual text as it was written to interpret the original “plain” meaning of the words, without necessarily looking at other contextual evidence, such as the problem it was trying to solve at the time or previous legislative history, other drafts of the text, or its impact or relevance on modern life.
Legal vs. Linguistic Analysis
Maybe it doesn’t even matter what the founders had originally intended, but what the citizen on the street would assume it meant. What would a regular eighteenth-century American citizen who was reading this legal wording over morning coffee reasonably think this sentence said? What did “well-regulated,” “militia,” “the people,” and “keep and bear arms” mean at the time? Textualists believe that by focusing strictly on the text and the original meaning, and nothing else, judges are limited from inserting their own modern biases into legal interpretations by picking and choosing external sources of evidence.
Under this legal assumption, linguistic analysis suddenly becomes hugely important in interpreting the language of the law. It’s surprising then, that more legal analysts aren’t better trained in formal linguistics. In practice, linguistic analysis might be as basic as a textualist-leaning judge looking up a word in the dictionary without understanding where those words and definitions come from or the sociolinguistic context they’re used in.
Justice Scalia was quite fond of whipping out dictionaries as objective, infallible, external legal authorities on word meaning for his textual evidence, but as Phillip A. Rubin points out, without good linguistic practices, the legal use of word definitions and grammatical rules (and even punctuation!) as textual evidence can end up just as biased, cherrypicked or manipulated as other external sources decried by textualists. Or as Professor Ellen Aprill puts it, “Justice Scalia’s use of dictionaries as a tool of textualism appears instrumental indeed, invoked only when it produces the desired result.”
Legal language is not logical and unchanging as it’s often supposed; it’s like any other sociolinguistic discourse. Likewise, dictionaries are not sacred, definitive authorities of the true meaning of a word, set in stone. Using older dictionaries published when the law was written may not match the meanings actually intended by legislators who drafted the law. This is because dictionaries are compiled by very human humans, who, from lack of space or time, may not get around to capturing all the relevant, representative meanings that exist in the spoken language. Words, many of which carry different meanings that can change dramatically over time, are not used in isolation the way they appear in a dictionary, but need a context to be understood. Picking out a meaning, any meaning, doesn’t mean that’s the right reading, and vice versa. (A shady tree is not the same as a shady character, for instance). So relying simply on dictionaries to choose evidence for word meanings, especially for legal language written in the eighteenth century, is a possible recipe for disaster, at least when it comes to gun control.
When Textualists Ignore Text
Textualists are all about the text, except, it seems in the 2008 Heller opinion. The decision ultimately decided that only the last clause really mattered, with the first being merely “prefatory, a bit of constitutional throat-clearing”, as it’s been described, that—astonishingly—has no real bearing on the second, more important clause. Nelson Lund, a legal but not linguistic expert, argued that “the Second Amendment has exactly the same meaning that it would have had if the preamble had been omitted, or indeed if the preamble is demonstrably false.” Under this modern reading, it’s curiously the only amendment of its kind written with an unnecessary decorative preamble.
But eighteenth century readers with classical educations under their belts would have been very familiar with Latinate absolute constructions used in long, Ciceronian-style sentences, which in this context crucially seems to provide a causal reason for why such a right is protected, as though it were written “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” That is, there may be a right to “keep and bear arms”, but that that right exists under certain conditions.
If you accept the linguistic evidence that all parts of the text play an important role in the more traditional interpretation, then the phrase “bear arms” is quite reasonably understood as referring to military service. In fact there are arguably many more examples where “bear arms” is taken strictly as a military term, meaning to serve as a soldier or do military service, including James Madison’s original draft of the amendment “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” The fact that there was another emerging sense of “bear arms” in some nonmilitary contexts muddies the water. However, many legal citations based on the second amendment over its history has often put the notion of the militia front and center as a reason for the people’s right to keep and bear arms.
Though an amicus brief written by linguists was submitted in the Heller case to support this, the court decided to strike out on its own. Using its own textual analysis, “the right of the people” was now defined unambiguously as an individual and not collective right. The “prefatory” clause was understood to just clarify, but not limit, the purpose of this right. The court believed that it was wrong to read the “militia” as a separate, organized group, regulated or controlled by a state. Instead, because the militia was made up of male, able-bodied citizens, the militia was really the same as “the people.” And “well-regulated”, now far from being regulated, was redefined as “well-trained” (which probably involves shooting a lot of rounds at targets). Most importantly, “keep and bear arms” took on the most “natural” reading, which was to have weapons and to be able to carry them for your own self-defense. Despite originalist principles, “arms” now meant any “lawful” weapon that could be defined as arms, even those weapons not in existence at the time.
Though this is now law, it’s curious how far the more recent reading of the second amendment has moved from the traditional reading. It’s always possible to unearth textual evidence that could be read in support of it or against it. Archaic laws can change, just as archaic language can be misread by a modern audience, whether willfully or well-intentioned.
What’s clear is there’s a groundswell of support for Parkland survivors, which saw hundreds of thousands joining the March for Our Lives protest. For today’s youth, or future voters as they’re sometimes known, perhaps the best way to move forward is to exercise a different kind of right to bare arms—by rolling up their sleeves and using the first amendment to fight the hopelessly outdated second amendment.
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