The Republic of T.

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Scalia, The Cunning Linguist

I really should have paid more attention in English class. Or, rather, I should have paid more attention to my grammar lessons. (Probably any hard-core grammarian who’s read the blog would concur.) But I spent the better part of my time as an English Lit. major in creating writing classes, and post-war literature. (My advisor finally told me I had to take the requisite pre-1800 literature classes. I realized then that I’d have been better off as a comparative lit. major.)

Had I spent more time diagraming sentences, then maybe I could make sense of the recent Supreme Court ruling on D.C.’s gun ban.

The above is from today’s Washington Post. It’s a graphic titled “Parsing the Second Amendment.” I have to admit, I’m biased here. And unschooled in parsing constitutional law. Certainly any half-asleep Supreme Court Justice could run rings around me in that regard, without even coming close to breaking sweat.

That said… huh? From the majority ruling penned by Scalia.

The Second Amendment is naturally divided into two parts; its prefatory clause and its operative clause… [A] prefatory clause does not limit or expand the scope of the operative clause.

Here’s the second amendment.

Here’s what I see as the prefatory statement.

And the operative clause.

Off the top of my head, if I were simplifying the above, I’d end up with something like this: “Because a well regulated militia is necessary to the security of a free State, the right of citizens to keep and bear arms shall not be infringed.”

Granted, there are a few different ways of reading it.

Modern legal theorists have identified three models used to interpret the Second Amendment. Professor Michael Dorf has described these models as follows:[82]

The first and second both emphasize the preamble, or “purpose” clause, of the Amendment — the words “A well regulated Militia, being necessary to the security of a free State.” The third does not. The first model holds that the right to keep and bear arms belongs to the people collectively rather than to individuals, because the right’s only purpose is to enable states to maintain a militia; it is not for individuals’ benefit. The second model is similar to the first. It holds that the right to keep and bear arms exists only for individuals actively serving in the militia, and then only pursuant to such regulations as may be prescribed. Under either of the first two models, a private citizen has no right to possess a firearm for personal use. But the court rejected these two models in favor of a third, the individual rights model. Under this third model, the Second Amendment protects a right of individuals to own and possess firearms, much as the First Amendment protects a right of individuals to engage in free speech.

I guess I read it as upholding either the first or second models. But I’m no linquist. They have, however weighed in with an amicus brief (PDF).


1. The Second Amendment reads: “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.” Under longstanding linguistic principles that were well understood and recognized at the time the Second Amendment was adopted, the “well regulated Militia” clause necessarily adds meaning to the “keep and bear Arms” clause by furnishing the reason for the latter’s existence. The first clause is what linguists call an “absolute construction” or “absolute clause.” It functions by melding the sentence “A well regulated Militia is necessary to the security of a free State” together with the sentence “The right of the people to keep and bear Arms shall not be infringed” to express this thought: “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.” 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.”

So, I’m not a legal scholar, nor a linguist, but the latter seem to have come up with the same reading.

I’ll level if to my law-school-educated friends to sort out the rest. But right now I think I fall somewhere between two points of view. I understand. some of the things Eugene Robinson expressed, though he essentially agreed with the ruling where I disagree with it.

I realize that the now-defunct D.C. law was unusually comprehensive and restrictive, and thus, in the legal sense, offered a bull’s-eye for the pro-gun lobby. I also know that the law was easy to attack on grounds of efficacy: Given all the handgun killings in the city, was the ban really having any beneficial impact at all?

But come on, it’s not as if the law was making gun violence in the city any worse — and it’s not as if striking down the law and perhaps adding hundreds or thousands of weapons to the city will make things any better. The law was flawed, but it was a lot better than nothing.

…I believe the Constitution is a living document that has to be seen in light of the times. I believe the Supreme Court, in Roe v. Wade, was right to infer an implicit right to privacy, even though no such thing is spelled out. I think the idea that the Founders’ “original intent” should govern every interpretation of the Constitution is loony — as if men who wrote with quill pens could somehow devise a blueprint for regulating the Internet.

But I also believe that if the Constitution says yes, you can’t just blithely pretend it says no. Thursday’s decision appears to leave room for laws that place some restrictions on gun ownership but still observe the Second Amendment’s guarantee. If not, then the way to fix the Constitution is to amend it—not ignore it.

Go to my friends who favor the ruling, I ask this: In light of the ruling, what now constitutes reasonable restrictions on gun ownership?

On the other hand, my overall reaction is best expressed by Rude Pundit, who says what Id’ say if impressionable little ears weren’t listening somewhere nearby. (Lest Parker scold me about my language, again.)

For in his majority opinion on the District of Columbia v. Heller gun law case, Scalia teaches us that lives are doomed because the rules of grammar and the definitions of words are interpretable and fluid. Enjoy: “Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, ‘A well regulated Militia,being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.’ That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (‘The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.’ The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause…Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.”

For want of a Strunk and White, the people of DC (and Chicago and Detroit and etc.) were lost.

And then, seriously, motherfucker goes through the definitions of the words in the phrase “to keep and bear arms.” No, no, seriously. For pages and pages: “The 1773 edition of Samuel Johnson’s dictionary defined ‘arms’ as ‘weapons of offence, or armour of defence.'” Or: “At the time of the founding, as now, to ‘bear’ meant to ‘carry.'” It’s the jurisprudence version of “Fuck you,” which means it’s simply par for the course for Scalia.

For all of that I’ve read and heard, I don’t understand how yesterday’s decision makes me any safer during my regular sojourns through D.C. But then again maybe making people safer wasn’t the point. (Colbert King apparently supports the ruling too, where I don’t, but this last bit rang a bell for me.)

And to make sure that D.C. gun owners are free to fire their loaded handguns at will, the Supreme Court went one step further and killed the city’s sensible requirement that weapons be equipped with trigger locks.

So now it has come to pass that D.C. residents can keep handguns, as well as rifles and shotguns, in their homes. A well armed, informal militia we shall be — ready to fire back in self-defense at the shooters who believed they had the right to their guns all along.

Flush with victory, a giddy National Rifle Association has announced its intention to file lawsuits in other jurisdictions with tough handgun laws. For starters, the NRA has taken aim at San Francisco and Chicago. See what we have unleashed, D.C.?

America, more body bags, please.

In black? Or “Red, White and Blue?”


  1. I think it’s fairly obvious that the right belongs to the people. You can argue that the amendment is outdated because we no longer have the need for a militia, but the amendment still gives the right to keep and bear arms to the people. I think it’s absurd to say, as one of your excerpts does, that “the people” somehow means the government, no other law was written or interpreted to make “the people” mean anything other than individual citizens. You can also see the original intent in the federalist papers and writings of Jefferson.

    Oh, and this is not about body bags or lives lost. Criminals will have guns whether they are legal or not. This was about ordinary citizens owning guns.

  2. “Firearms stand next in importance to the constitution itself. They are the American people’s liberty teeth and keystone under independence … from the hour the Pilgrims landed to the present day, events, occurences and tendencies prove that to ensure peace security and happiness, the rifle and pistol are equally indispensable … the very atmosphere of firearms anywhere restrains evil interference — they deserve a place of honor with all that’s good.”
    –George Washington

    “And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the Press, or the rights of Conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; …”
    — Samuel Adams

    “Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?”
    –Patrick Henry

    And more…

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