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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.


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