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Wednesday, June 29, 2005

A Well-Regulated Militia

The second amendment has seemed to generate greater controversy than any other single amendment (Roe v. Wade involved both the 9th and 14th amendments). It is worth looking therefore at the language of that amendment from a theoretical linguistic standpoint. It 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.

Like any other spoken or written communication, its interpretation -- its significance, as I termed it in my blog on the meaning of meaning -- depends on its literal meaning, the linguistic and real world contextt in which it occurs, and assumptions about the intent of the speaker/author. This latter claim is required to account for how we interpret many of the utterances we encounter in the real world. Suppose for instance, I say (1)
(1) Can you reach the salt?
while eating at a large table with others. In that context, given that I can reasonably be assumed to have need of salt and other condiments, the utterance would be interpreted not as a pure information question but as a request for salt, the language of which acknowledging that the addressee may have to put him/herself out a bit to take possession of the salt. However, were I to say (1) to a paraplegic in a context in which we are in his/her kitchen and (a) we are not eating and so I have no expectable need for salt and (b) I am trying to arrange things so that my friend an function in it independently. In that context, it would normally be interpreted as being an information question which is the default, but not the only use of an interrogative sentence.

The most relevant contexts for the interpretation of the Second Amendment are the linguistic context and the real world context in which it was written. The linguistic context is one in which various restrictions are placed on the federal and state governments that prohibit them from infringing specific enumerated rights of individuals (and in a few cases rights of the states) as well as various unenumerated rights (Ninth Amendment) that are "retained by the people." These rights are presumably those that were assumed to hold at the time of the writing of the constitution. One such right would be the freedom to move from one place to another to find work or for any other reason (except to flee prosecution). Another would be the right to take any job one wanted that one could get. Still another would have been the right to own and use a musket or pistol for hunting and self-protection. This last fact is critical to understanding the intent of the writers of the second amendment. Since we can reasonably assume the writers of the Bill of Rights knew that ordinary citizens did own such weapons, if they meant to prohibit future ownership they would have said so.

A very serious problem with the composition of the second amendment is the position of the commas which are almost randomly sprinkled into the sentence. It reads, again, "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." This is a clear mistake. It should read "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." The point is that if one treats the phrase "being necessary to the security of a free State" as being in apposition to "A well regulated Militia" we would be left with an ungrammatical and incomprehensible sentence, namely.

A well regulated Militia the right of the people to keep and bear Arms, shall not be infringed.

This is total nonsense. As a result, we must see the phrase "being necessary to the security of a free State" as having "wide scope" over the sentence, that is, this phrase limits how the rest of the amendment is to be interpreted. The last comma is also ill-placed. Methinks that our founders suffered from an excess use of commas.

In my brief survey of the kinds of weapons individuals could have owned at the time of the writing of the 2nd amendment suggests that ordinary citizens had access only to single shot weapons. Percussion pistols were developed in the next century and so no revolvers can be found dated at the time of the writing of the constitution. Nevertheless one can buy revolvers and automatic pistols today in the United States. Gattling guns, a precursor to machine guns, were developed a century after the penning of the Bill of Rights). The closest thing to a shotgun at the time of the Revolution was a musket loaded with a single ball and three to six buckshot.

So, in interpreting the 2nd Amendment we have to take into consideration the weapons that were available for use by civilians for protection of the state and themselves as well as for hunting. Single shot weapons, if carried on one's person and loaded, could be used for personal defense only if the person threatening oneself had only a knife or had missed you with his single shot weapon, leaving him vulnerable to your single shot weapon. Otherwise these were fairly useless except for muskets used for hunting food. In fact, single shot weapons would have been useful for protection only when combined with others in a "well-regulated militia."

I am amazed that people want to own fireable gattling guns, machine pistols with multi-cartridge magazines, .50 caliber rifles, and other weapons of war. I can only guess at how the founders of the constitution might have felt about such a thing, but the language of the constitution is quite explicit -- there is no linguistic wriggle room. They are legitimized only by their inclusion in service of a "well-regulated militia." Since our forefathers were not idiots, we can fairly safely assume that they would never have meant to license personal ownership of any true weapon of war such as machine guns, .50 caliber rifles, machine pistols with multi-cartridge magazines, etc On the other hand, it can reasonably be assumed, I think, that they would have found the modern day equivalents to the kinds of weapons individuals owned for their personal use as acceptable, including revolvers (but not automatic pistols), true hunting rifles, and hunting shotguns(i. e., modern day muskets loaded with a ball and some buckshot).

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17 Comments:

Anonymous Anonymous said...

I love it when people with your evident political prejudice seem to find what you're looking for in the 2nd Amendment.

"Since our forefathers were not idiots, we can fairly safely assume that they would never have meant to license personal ownership of any true weapon of war such as machine guns, .50 caliber rifles, machine pistols with multi-cartridge magazines, etc."

Becuase of course the enemies that the well-regulated militia would need to fight would never eventually get better technology, so the militia would never have to worry about needing to upgrade their weapons to keep up, I guess you think.

2:38 PM

 
Blogger Language Guy said...

I have no prejudices. All of my positions are based on facts. I do concede the problem in reasoning you point out. However, when you get to the level of machine guns, tanks, howitzers, nuclear bombs, and the like, it would be pretty tough for our citizen militia memembers to bring these things from home, as the language of the 2nd Amendment seems to suggest. You would have to have a double wide, double high garage to store your howitzers.

Back in the good old days in which I served in the National Guard, we kept our weapons at the armory. Should I have bitched about not being able to carry it home with me? Glad they didn't make me buy the damn thing.

3:33 PM

 
Anonymous trevor@k’alebøl said...

If your militia are going to be able to carry only muskets, then you should surely also amend the constitution once more to allow only the Indians and the British to attack you, preferably in period dress.

4:37 PM

 
Blogger David said...

L.G., I agree with your general point. The right to bear arms seems limited to those arms appropriate for a militia, thus ruling out howitzers, n-bombs, etc. But presumably machine guns and other firearms used by modern militaries should be covered. I think the line is a bit more fuzzy than you portray it.

we can fairly safely assume that they [our forefathers] would never have meant to license personal ownership of any true weapon of war such as...

Wasn't a musket a "true weapon of war"?

4:57 PM

 
Blogger Language Guy said...

Trevor, you are on the right track. You should send something on this to the Supremes.

I'm sure the line is fuzzy. Think though of the fact that the weapons that people had were of virtually no use for protection, especially on the frontier by early settlers. You would have to have sufficient warning to load your musket and you would have one shot. So, if 3 Indians attacked your family you were screwed.

The reality is that the vast majority of us will never need personal protection and those of us who go ahead and get gun permits will likely just get in trouble with them. An OSU prof who is pro-guns just got arrested for trying to carry his loaded hand gun though an airport screening device. He is in trouble though he says it was an honest mistake. If you are dumb enough and unaware enough to forget you have a handgun in your brief case, you are too dumb to be allowed to have one.

7:22 AM

 
Anonymous Richard Hershberger said...

I am about as much of an agnostic on firearms as you can find nowadays. I don't own any guns, but I am not disturbed that others do, and I don't fetishize them either for or against. I concluded years ago that I haven't the foggiest idea what the second amendment means.

Apart from any other considerations, I find mysterious the bit that revolvers are OK, but automatic pistols are not. Assuming that by "automatic pistol" you mean something like a Browning 9mm with 13 or so rounds, in which the trigger must be pulled each time to fire a round, then I don't see a major difference between this and a revolver. Perhaps you are thinking of machine pistols such as the Uzi?

9:37 AM

 
Blogger Language Guy said...

I think the language of the amendment is quite clear. What isn't clear is how to extrapolate from the context in which it was written to today.

I have owned rifles and shotguns and fired a rifle in the military and would not particularly like to see rifles and shotguns banned. Pistols are a problem because their only real use is for killing people, rather than rabbits, doves, or deer, none of which bothers me (unless I have to do the killing -- I am getting squeamish in my old age). Revolvers with 6 chambers differ from 9 or mor shot automatics since but both are for killing lots of people quickly.

I am interested in the concealed carry issue. Received liberal wisdom has been that that would increase violence, if only among family members and other closely connected people where killings tend to occur. Received conservative wisdom has been that they will cut down at least on killings by strangers of strangers. All of the data I have seen so far supports the conservative side but I haven't looked at much data.

2:49 PM

 
Blogger Bob Kennedy said...

Geoff Pullum has a similar (and somewhat tongue-in-cheek) analysis regarding the comma placement in the amendment.

1:32 PM

 
Anonymous Anonymous said...

If you are taking the amendment in historical context, it should also be mentioned that the United States of America was in many ways a social experiment never seen before. The Founding Fathers had no way of guaranteeing that by the third President the executive wouldn't turn against the People and turn it into an autocracy/monarchy/dictatorship.

If you ask me the Second Amendment was there to safeguard democracy. While many citizens today may not agree with the direction of the current administration, I think nearly all can agree that it works within the fair limits set out in the Constitution.

The other point I would mention is that muskets were a weapon of war, and you couldn't do much effectual damage with one without coordinating yourself in a militia. In terms of personal security and crime, the perceived risk the Founding Fathers took by giving everyone the right to carry one was much lower than today.

10:07 AM

 
Blogger IbaDaiRon said...

Hey, Mike, long time no see. Great blog, always a pleasure.

I'm pretty much in the agnostic camp with Richard, since I can see good points on both sides. I've never owned or wanted a gun myself, but members of my family are hunters and collectors. I'm not bothered by the fact that some of them have available the firepower to launch a respectable hillbilly feud because I know them all to be responsible gun owners. (With an ever increasing crowd of wee ones about, the guns are kept under lock and key.) In the hands of intelligent, responsible people (the kind who aren't likely to point a gun at someone without a damned good reason), guns aren't a problem. I do, however, believe in the need for stricter controls.

Looking at the wording of the amendment again, A well regulated Militia (not a rabble, but an organized, practiced group; National Guard, perhaps?) being necessary to the security of a free State (for defense of democracy against enemies both foreign & domestic), the right of the people (This is the real problem, in my opinion: does this mean "people" in general, as individuals, or "The People" as a collective?) to keep and bear Arms shall not be infringed.

I think it's a sad comment on the state of the nation that after more than two hundred years some people still fear the possible actions of our own government.

Of course, given the current government....

11:01 PM

 
Blogger David said...

Unrelated: I recently posted on the meaning of "evangelical". I was wondering if you would provide some insight on my blog. Thanks

3:36 PM

 
Blogger Language Guy said...

David, I have nothing to contribute to the understanding of this concept. I do wish Evangelical Christians would convert to something secular.

8:06 AM

 
Blogger whistleblower said...

If the right of the citizens, to keep and bear arms, is necessary to the security of a free State; How could anyone consider removing that ability of such to be in accordance with the language of the Constitution?

Remember, in order to become free, we went to war against what was our government. Would /should we do that again if the need arise?

If the citizens lack the right to possess the weapons that are needed to free themselves from an oppressive government, and that government becomes our own, can we defend ourselves from the enemy?

The founders would have said yes. Looking at the right to keep and bear arms while ignoring the purpose of our Revolutionary War is laughable.

Let's look at this as if it were today. Consider our government to be that of the British Government. What weapons does our government posses?

If our Revolutionary War had taken place in 2004, do you think our founders, after going to war for their own freedom, would have limited our weapons to muskets?

"If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government . . . The citizens must rush tumultuously to arms..."
- Alexander Hamilton, Federalist #28.

Maybe Hamilton should have changed his words to read; "The citizens must rush tumultuously to outdated and useless arms..."

Fear of the unknown is the worst kind of fear. People that are anti-gun have never spent much time with those that possess guns.

Pistols are the best method of defense in close quarters, such as your home. Shotguns are best used in close to medium distance protection. Rifles are for distant protection.

The fact is, we have a right to protect ourselves; beit from our neighbor, our state, our country, or a foreign invasion. I think the founders would have agreed. I doubt the sheeple will ever understand.

"Every citizen should be a soldier. This was the case with the Greeks and Romans, and must be that of every free state." --Thomas Jefferson

Hmmm...Jefferson referenced free state? Just like the Second Amendment

5:37 PM

 
Blogger Thr Language Guy said...

Given the erosion of the rights you seem to cherish, at least in connection with the right to bear arms, under Bush, perhaps your fears of a repressive government is real. But you need to get real. For a privately formed militia to do battle with the American military it would need tanks, planes, and all manner of other weapons, none of which existed at the time of the revolution.

I am good with Jefferson's idea that every person should be a soldier. We badly need a draft so we need the exemptions for people who study critical disciplines in science, engineering, languages, etc.

The fact is that Jefferson and the rest did not imagine the kinds of weapons that we have now on our streets and it is inconceivable that they would endorse your ownership of a .50 cal sniper rifle or a 30 round sleeve for a rapid fire machine pistol. Get real.

8:15 AM

 
Blogger Thr Language Guy said...

Do you think, by the way, that Jefferson might have written the Second Amendment. He wrote the Declaration of Independence and was our second President so the idea that he was active in framing the constitution.

8:16 AM

 
Blogger stricks said...

This isn't about protection against street muggings. The revolutionary war was fought against a government who was out of touch with the people. I think the founding fathers would not want the federal government to have significantly better technology than the people. The government is to protect the rights and freedoms of the people, not rule over them. The people of the government are not different than the citizens in any way and should have no more rights than a citizen. In fact government employees regularly sign away their rights to enhance yours.

9:26 AM

 
Blogger akaMAT said...

Thank you, Thank you, Thank you.

I have been saying this for years and years and years.

I got held up at the store I worked at. The gun owner held a gun to my head and told me to "shut up" or he was going to "blow my head off" I was lucky. When the cops came they to came in with Guns drawn and accusing me of stealing the money and making up the story. I think they wanted to use their guns, the crook wasn't there so they manhandled me instead. Truly I really do think that most people purchase guns with the hopes they "get" to protect from a perceived criminal. At least it feels that way from a person that does not own a gun point of view. I view gun owners in the same light I view terrorists. I think that the NRA should be listed as a hate group. The amount of vitriol that flows from Gun owners lips is weapon enough. Shooting someone with a gun is just taking it a step further.

Sorry for the lack or overage of punctuation.

11:39 PM

 

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