What is POFP?

Why do lawyers refer to long documents as briefs and
18-year olds as infants? Why do they use so much Latin when so few of their
clients are Ancient Romans? Is it a conspiracy?


Party of the First Part has the answers! Check out the Website for the
Legalese Hall of Shame; a glossary of legal words linked to Adam Freedman's
columns; tips on writing legal documents in plain English; and more!



Sunday, June 29, 2008

The DC Gun Case: Loaded Words

On June 26, the Supreme Court fired off its decision in DC v. Heller, holding that the Second Amendment confers an individual right to possess firearms, unconnected to military service.

The Heller case – long anticipated as the Court’s first-ever comprehensive interpretation of the right “to keep and bear arms” – generated an astounding 67 amicus curiae (“friend of the court”) briefs. But of those 67 briefs, the only one cited by both the majority and dissenting opinions was one submitted by a group of professors of linguistics and English, the so-called “Linguists’ Brief.”

These language scholars took center stage because of the dearth of judicial precedent on the Second Amendment. In the absence of helpful prior decisions, the Court had to start from scratch in decoding the “original meaning” of the Amendment. While various briefs cited founding-era dictionaries, only the Linguists devoted their entire brief to the niceties of eighteenth century grammar and usage.

That may seem like a lot of fuss for a single sentence – but then, this is no ordinary sentence. The Second Amendment says:
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.

You will immediately notice that the sentence has two parts, a “prefatory” clause (the bit ending in “State”), and an “operative” clause (everything after “State”). The relationship between those two clauses has bedeviled scholars for years. Gun control advocates say that the prefatory clause limits the scope of the amendment to militia members, while their opponents claim that the operative clause creates an individual right to bear arms that cannot be fettered by the preface. Unfortunately, there is nowhere else in the Constitution to look for guidance: the Second Amendment’s prefatory clause is the only one of its kind in that document.

The Linguists tell us that the prefatory clause of the Second Amendment is what’s known as an “absolute clause,” that is, an adverbial phrase that is separate from the main clause of the sentence. Such clauses are called “absolute” because they are grammatically independent from the rest of the sentence – no word in the absolute clause can be said to modify any particular word in the main clause.

On the strength of that grammatical autonomy, some gun enthusiasts argued that the prefatory clause has no impact whatsoever on the operative clause. George Mason Law Professor Nelson Lund, for example, wrote in an academic paper that “the Second Amendment has exactly the same meaning that it would have if the preamble [i.e., prefatory clause] had been omitted.”

The Linguists attacked Lund’s assertion with a fusillade of grammar books demonstrating that an absolute clause, while grammatically distinct, “add[s] meaning to the entire sentence.” The Linguists’ point can be seen in an absolute construction that is still in common use: “weather permitting, I will go for a walk.” In that sentence, “weather permitting” is the absolute clause (tip – such clauses typically involve verbs ending in “-ing”). The main clause stands on its own grammatically, but the absolute clause modifies the speaker’s intention to go for a walk.

The Second Amendment’s absolute clause, according to the Linguists, expresses a causal connection; namely “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.” Justice Antonin Scalia, writing for the majority, readily concedes that there is a logical link between the two halves of the sentence, but he argues that the prefatory clause merely announces a purpose of the operative clause, not the purpose (other purposes of gun ownership include hunting and self-defense). On this reading, the Second Amendment is really about allowing individuals to own guns, the fact that this right happens to bolster the militia is simply an added plus.

And then there is the operative clause’s guarantee of a right “to keep and bear Arms.” Neither side is entirely happy with that phrase. The majority opinion focuses on the straightforward word “keep” while the dissent spends most of its time on the more complicated “bear.”

“Keep” has much the same meaning as it did in 1773, when Samuel Johnson defined it as “[t]o retain; not to lose,” and “[t]o have in custody.” Standing alone, the right “to keep arms” suggests an individual right to have a gun in your house – preferably locked in a child-proof drawer, but an individual right all the same.

The Founders, however, did not create a stand-alone right to “keep arms,” they joined it with the right “to bear arms.” In the High Court, the battle over the Second Amendment’s operative clause came down to the question of whether “bear arms” must be understood in an idiomatic or non-idiomatic sense. An idiom is an expression that is peculiar to a language (from Latin idioma, “peculiarity”), and which conveys a meaning different from its literal or logical signification.

The dissent argues that in the eighteenth century, “bear arms” was an idiomatic expression meaning “to perform military service,” thus emphasizing the martial purpose of the amendment. Among the many examples quoted in the Linguists’ Brief is the Declaration of Independence, which denounces King George for forcing American colonists “to bear Arms against their country.” The Linguists also cite an academic survey of newspapers, books, and pamphlets from the founding era: of 115 texts using the term “bear arms,” all but five did so in a military context.

Further supporting the dissenters’ interpretation, the Linguists demonstrated that the word “arms,” even without the “bear,” had an overwhelmingly military connotation in the late eighteenth century. In his 1794 treatise, The Distinction Between Words Esteemed Synonymous in the English Language, John Trusler distinguishes “arms” from “weapons,” stating that the former are “instruments of offence generally made use of in war.” Based on the evidence, one is tempted to agree with Yale professor Akhil Amar that “the Framers [of the Second Amendment] envisioned Minutemen bearing guns, not Daniel Boone gunning bears.”

And yet, Justice Scalia was having none of it. He rather ingeniously contends that the idiomatic sense of “bear arms” only existed when those words were followed by the preposition “against.” It’s not clear where Scalia got that argument – The Complete Idiom’s Guide to the Second Amendment ? – but it allows him to conclude that the Founders intended “bear arms” in the non-idiomatic sense of “to carry arms.” In other words, you have right to your gun, whether or not you join the militia. As the majority spokesman, Scalia had the last word, a fact that may have left the much-cited Linguists feeling as though they had been shooting blanks.

18 comments:

Jerry said...

cheap wedding gowns,
discount bridal gowns,
China wedding dresses,
discount designer wedding dresses,
China wedding online store,
plus size wedding dresses,
cheap informal wedding dresses,
junior bridesmaid dresses,
cheap bridesmaid dresses,
maternity bridesmaid dresses,
discount flower girl gowns,
cheap prom dresses,
party dresses,
evening dresses,
mother of the bride dresses,
special occasion dresses,
cheap quinceanera dresses,
hot red wedding dresses

传斌 said...

replica Watches
replica Watches
replica Watches
fake Watches
knockoff Watches
replica Rolex Watches
replica Breitling Watches
replica Cartier Watches
replica Omega Watches
replica Tag Heuer Watches
replica Bell & Ross Watches
replica Panerai Watches
replica IWC Watches
replica Patek Philippe Watches
replica Chopard Watches
replica Gucci Watches
replica Corum Watches
replica Montblanc Watches
replica Jacob & Co Watches
replica A.Dunhill Watches
replica A.Lange & Sohne Watches
replica Alain Silberstein Watches
replica Audemars Piguet Watches
replica B.R.M Watches
replica Baume & Mercier Watches
replica Blancpain Watches
replica BMW Watches
replica Breguet Watches
replica Burberry Watches
replica Bvlgari Watches
replica Chronoswiss Watches
replica Concord Watches
replica D&G Watches
replica De Witt Watches
replica Dior Watches

milf said...

new houston house houston house tx stains removal dye
stains removal clothes stains removal teeth whitening
teeth whiteningbright teeth jennifer grey nose
jennifer nose jobs calebrities nose jobs Women with Big Noses
Women hairstyles Big Nose Women, hairstylesdvd player troubleshootingtroubleshooting with the dvd playercheap beach vacationsnight vision binoculars bargainsflorida headache clinic

milf said...

dessicant air dryer pediatric asthma asthma specialist
carpet cleaning dallas tx carpet cleaners dallas carpet cleaning dallas
beach vacations your beach vacations
bob hairstyle
bob haircuts bob layered pob hairstyle
bobbed classic bob Care for Curly Hair
Tips for Curly Hair curly hair 12r 22.5 best price
tires truck bus tires 12r 22.5 washington new house
new house Houston new house san Antonio new house ventura
sealy air beds portable portables air beds
antique doorknobs drying desiccant
air drying desiccantlipitor allergic reactionsApple prodam iphone praha

123 123 said...

Nice article as for me. I'd like to read more about that topic. Thank you for giving this information.
Joan Stepsen
Gadgets and gifts

Anonymous said...

[url=http://hoohi-mach.com/search/die+ultimative+chartshow+lovesongs.html]die ultimative chartshow lovesongs[/url]
[url=http://hoohi-mach.com/search/brazzers+und+download.html]brazzers und download[/url]
[url=http://hoohi-mach.com/search/coffee+recipe+collection.html]coffee recipe collection[/url]
[url=http://hoohi-mach.com/search/vivaah+hindi.html]vivaah hindi[/url]
[url=http://hoohi-mach.com/search/girl+women+babe.html]girl women babe[/url]
[url=http://hoohi-mach.com/search/final+cut+pro+rapidshare.html]final cut pro rapidshare[/url]
[url=http://hoohi-mach.com/search/outlander+2008+a+h+team.html]outlander 2008 a h team[/url]
[url=http://hoohi-mach.com/search/w+amp+252+nsche.html]w amp 252 nsche[/url]
[url=http://hoohi-mach.com/search/winxp+macosx.html]winxp macosx[/url]
[url=http://hoohi-mach.com/search/california+drivers+licence.html]california drivers licence[/url]
[url=http://hoohi-mach.com/search/produit+prod.html]produit prod[/url]
[url=http://hoohi-mach.com/search/access+manuale.html]access manuale[/url]
[url=http://hoohi-mach.com/search/shrek+4+nlt.html]shrek 4 nlt[/url]
[url=http://hoohi-mach.com/search/claire+thompson+accidental+slave.html]claire thompson accidental slave[/url]
[url=http://hoohi-mach.com/search/disko+song.html]disko song[/url]
[url=http://hoohi-mach.com/search/lynda+web+accessibility+principles.html]lynda web accessibility principles[/url]
[url=http://hoohi-mach.com/search/mirsad+kastrati+pjesa+e+pare.html]mirsad kastrati pjesa e pare[/url]
[url=http://hoohi-mach.com/search/the+dunwich+horror+greek+subs.html]the dunwich horror greek subs[/url]
[url=http://hoohi-mach.com/search/flags+destroyed.html]flags destroyed[/url]
[url=http://hoohi-mach.com/search/avs+video+remaker+3.1.2.html]avs video remaker 3.1.2[/url]
[url=http://hoohi-mach.com/search/cooking+the+thai+way+osheraj.html]cooking the thai way osheraj[/url]
[url=http://hoohi-mach.com/search/nissan+x+trail+t30+navi.html]nissan x trail t30 navi[/url]
[url=http://hoohi-mach.com/search/r4i+sdhc+skin+making+tool.html]r4i sdhc skin making tool[/url]
[url=http://hoohi-mach.com/search/m4+cloth.html]m4 cloth[/url]
[url=http://hoohi-mach.com/search/flqsh+foward+s01e01.html]flqsh foward s01e01[/url]
[url=http://hoohi-mach.com/search/felluciablow+com+2.html]felluciablow com 2[/url]
[url=http://hoohi-mach.com/search/destination+finale+5+french.html]destination finale 5 french[/url]
[url=http://hoohi-mach.com/search/200+effekte+fr+virtual+dj.html]200 effekte fr virtual dj[/url]
[url=http://hoohi-mach.com/search/janine+hagebeck.html]janine hagebeck[/url]
[url=http://hoohi-mach.com/search/kate+lesing+vocals.html]kate lesing vocals[/url]

Anonymous said...

Merry Christmas! Let the new year will bring a lot of money

Anonymous said...

Good Article
http://www.medcareforyou.com/product/aldactone/

Anonymous said...

Very interesting. Thank you.
http://www.box.net/shared/ey6jn1hqz3

Anonymous said...

Cheapest fastest real youtube views

[url=http://www.icanhazviews.com]Cheap youtube views[/url]

Anonymous said...

Moncler Outlet a large number of The Su Hongye in Chongqing something, cannot come back in,[url=http://www.giubbotti-moncleroutlet.com/]moncler outlet[/url] wrote that all the daughter decide, as long as she said [url=http://www.giubbotti-moncleroutlet.com/]moncler outlet[/url] the research. the foreign flavor from the new individuals are very against [url=http://www.giubbotti-moncleroutlet.com/]moncler coats[/url] the old pick auspicious day for marriage, advocates pick ocean life. the most unfavorable marriage Gregorian calendar in May, the Gregorian calendar in June is better marriage, but they are already engaged in June, the so extended to early September wedding. It is said too much focus on date,Monday 23 is a good day for marriage, especially on Wednesday; 4,561 days just like a bad day, as a result they pick on Wednesday smiles: should have been that guy to come out of Yuen Long Cao tricks. Mei smiles: short, you hate the European students, pattern names up. Chosen to get married that Moncler Outlet Wednesday, the weather is much like summer, hot interest. The way in which I needed, Jiao days Fortunately, today I did not do groom. The church was air-conditioned, Ts wearing a black wool dress, too busy sweating, I believe he white collar having a ring, to obtain another yellow sweat soaked and soft. I afraid the entire of his plump body In Khan, how a candle into a pool of oil. Miss Su is also tight ugly. fall into line in the wedding, the bride and groom smiling face, no expression of Ku Buchu, all unlike the dry wedding, but instead no, this is not on the scaffold, is a, is, like Moncler Boots a public host to pickpockets signs with punishing those hardened criminals in the face. I occur to believe that I own wedding ceremony, under those a large number of Kui Kui also like to be inevitable cracked pickpockets. That made me realize the type of joyful, smiling faces of happy wedding pictures were never come to. find! Great find! I'm thinking about would be to observe how you prefer her within 24 hours. avoided her to not see, just say a few words with Miss Tang - chien hop heavy heart that, like truck unloading the parcel the next smash gravitropic only strange Xinmei won't hear - would be a bridesmaid your day, saw me and Moncler Scarf inquired about to not fight, said the ceremony complete line, we sprinkle colored paper Fou new body, when, and only I won't have hands, afraid which i go ahead and take chance to throw hand grenades, nitrate sulfuric acid spill. She inquired about in the future plans, I told her to go Sanlv University. I think she might not wish to hear your name, so I did not mention a thing you.

more information you can go to http://www.giubbotti-moncleroutlet.com

[url=http://www.giubbotti-moncleroutlet.com/]moncler parka[/url]
[url=http://www.giubbotti-moncleroutlet.com/]moncler vest[/url]
[url=http://www.giubbotti-moncleroutlet.com/]monclers[/url]
[url=http://www.giubbotti-moncleroutlet.com/]monclet[/url]
[url=http://www.giubbotti-moncleroutlet.com/]moncler women[/url]
[url=http://www.giubbotti-moncleroutlet.com/]moncler sale[/url]
[url=http://www.giubbotti-moncleroutlet.com/]moncler gui[/url]
[url=http://www.giubbotti-moncleroutlet.com/]moncler daunenjacke[/url]
[url=http://www.giubbotti-moncleroutlet.com/]moncler outlet online[/url]
[url=http://www.giubbotti-moncleroutlet.com/]monclet clothing for kid[/url]
[url=http://www.giubbotti-moncleroutlet.com/]moncler[/url]
[url=http://www.giubbotti-moncleroutlet.com/]moncler uk[/url]

Anonymous said...

Laugh and grow fat.

6hFhd http://www.cheapuggbootsan.com/
bUxx http://www.michaelkorsoutletez.com/
tMej http://www.cheapfashionshoesam.com/
4cZsk http://www.burberryoutletxi.com/
2fHag http://www.nflnikejerseysshopxs.com/
4uCnv http://www.coachfactoryoutlesa.com/
2xFph 4vNgx 0aPcu 7wWjm 4jYbq 5nYgq 0wJmj 0tFny 7tXxd

Anonymous said...

When I say I know you,I mean I knew you yesterday. I do not know you actually now.

7jKul http://www.cheapuggbootsan.com/
jXlw http://www.michaelkorsoutletez.com/
dZfp http://www.cheapfashionshoesam.com/
9jRsg http://www.burberryoutletxi.com/
7kFzb http://www.nflnikejerseysshopxs.com/
0xEqu http://www.coachfactoryoutlesa.com/
7hMgl 3iWxc 2mNgh 3fBfl 2iPtk 3jZvy 7fCyd 6oDca 2hJqi

Anonymous said...

Repetition does not transform a lie into a truth.

5fDya http://www.cheapuggbootsan.com/
tKmt http://www.michaelkorsoutletez.com/
aNfj http://www.cheapfashionshoesam.com/
4aEke http://www.burberryoutletxi.com/
4nAxc http://www.nflnikejerseysshopxs.com/
7aQxd http://www.coachfactoryoutlesa.com/
4dEzz 7wLfe 5oMsq 7uIvk 3kCua 5qYqu 5dLob 5dEez 4vTmh

Anonymous said...

cheap nike air max 90 krattjcd cheap nike air max mqvsefui nike air max 1 cmjpvmwu nike air max 90 uhldjeow nike air max 95 raqvdpky nike air max vajzvziy nike free run fipccwos nike store uk tgucuoqy nike uk yvctzrwk

Anonymous said...

Actually when somеone ԁoeѕn't be aware of then its up to other users that they will assist, so here it takes place.

Feel free to visit my web blog :: vipshoppingalert.com

Anonymous said...

Howdy would you mind letting me know which hosting company you're working with? I've loaded your blog in
3 completely different browsers and I must say this blog loads
a lot quicker then most. Can you recommend a good web hosting provider
at a fair price? Kudos, I appreciate it!

my homepage the tao system scam

cecillia said...

actual information, all information which is helpful given once for all Picture collection Modern Minimalist House Plan | the latest automotive news | Dimensions and Weights | maximum engine power capacity