1. Guns and Grammar: Determining what the Second ... - English

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Baron, Language and Law, 1. Guns and grammar, 18Justice Scalia disagreed. In his opinion, Scalia argues that bear arms ismilitary when accompanied by the preposition, as in bear arms against. By itself,bear arms can simply refer to carrying weapons for self defense, and he cites insupport of this an earlier dissent by Justice Ginsberg in Muscarello v. United States(1998, 143). That case turned on the meaning of carrying firearms, and in her dissentGinsburg wrote, “[s]urely a most familiar meaning is, as the Constitution’s SecondAmendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in theclothing or in a pocket, for the purpose . . . of being armed and ready for offensive ordefensive action in a case of conflict with another person’” (the definition is fromBlack’s Law Dictionary, 143). It’s important for our analysis that, although Ginsburgcites the Second Amendment in Muscarello, she’s citing Black’s definition of carryarms. In contrast, Black’s definition of bear arms stresses the military associationsof the phrase: “to carry arms as weapons and with reference to their military use.”Nevertheless, Scalia argues in Heller that in the absence of the prepositionagainst, bear arms can apply to any arms-carrying situation: “Without thepreposition, ‘bear arms’ normally meant (as it continues to mean today) what JusticeGinsburg’s opinion in Muscarello said” (Heller, 13). Even so, bear and carry workdifferently when it comes to packing heat. It would hardly seem idiomatic to write,“A team of G-men bore arms to track down Al Capone,” or to warn off a threateningindividual by declaring, “Watch it, buster, I’m bearing arms.”Above, definition of carry arms from Black’s Law Dictionary, 4 th ed. Below,definition of bear arms from Black’s Law Dictionary, 4 th ed.Parsing the Heller Decision But apparently Justice Scalia, who likes to hunt, can bear arms against rabbits,ducks, and all other manner of game. Writing the majority opinion in Heller, Scaliadismissed the historical arguments of the Linguists’ Brief as “unknown this side ofthe looking glass (except, apparently, in some courses on Linguistics)” and “worthyof the mad hatter” (Heller, 15-16).The Court’s minority found our linguistic analysis more convincing. JusticeStevens called Scalia’s reading of the amendment “overwrought and novel” andcame up with an interpretation that was the polar opposite of his colleague’s:When each word in the text is given full effect, the Amendment ismost naturally read to secure to the people a right to use and possessarms in conjunction with service in a well-regulated militia.
Baron, Language and Law, 1. Guns and grammar, 19[Washington, D.C., 2008; Stevens Dissent, 16]Stevens added that the Second Amendment doesn’t permit, or even discuss,gun ownership for hunting, personal self-defense, or committing crimes, even thoughguns are frequently used for these and other purposes.Scalia acknowledged that, although eighteenth-century militiamen (alwaysmen) were expected to show up with their own guns, that practice is frowned on bythe military today. But that’s irrelevant, because, for him, even though it’s notmentioned in the Constitution, “the inherent right of self-defense has been central tothe Second Amendment right” (Heller, 56). In contrast, Scalia told an audience atHastings College of Law in 2010 that the notion of an implicit Constitutional right toprivacy is “a total absurdity” because, after all, there is no mention of privacy in theConstitution.As scholars including Richard Posner (2008) have observed, each side inHeller argued from a position usually adopted by the other: the liberals took anoriginalist position, while the conservatives preferred to read the SecondAmendment as part of a living constitution. In doing so, the Court made policy bystressing the need for personal gun ownership, not as a bulwark against a tyrannicalgovernment, but in order to fight the current epidemic of urban crime which theframers never mentioned and surely never foresaw. Conservatives have recentlybegun acknowledging their own special brand of judicial intervention by calling it,not activism, a term they reserve for what liberal judges do so recklessly, but‘judicial engagement,’ which reflects the right way to make the law mean what it issupposed to mean.The ruling in Heller has made it more difficult to regulate firearms in waysthat meet constitutional tests. Two years after Heller, in McDonald v. Chicago (08–1521, 2010), the Court threw out that city’s gun ban, at the same time incorporatingthe Second Amendment so that it applies to the states as well as to federaljurisdictions like the District of Columbia. And on a recent Saturday, the ChicagoTribune reported 17 shootings in the city overnight (Oct. 8, 2011).Summation: Words don’t make meanings, people do Both English common law and American jurisprudence have always supported thepublic regulation of weapons, and Justice Scalia tempered his opinion in Heller bynoting that regulation was both possible and, in some cases, even desirable:The Court’s opinion should not be taken to cast doubt onlongstanding prohibitions on the possession of firearms by felons andthe mentally ill, or laws forbidding the carrying of firearms insensitive places such as schools and government buildings, or lawsimposing conditions and qualifications on the commercial sale ofarms.Heller, 54-55Nor does Scalia echo Madison’s argument that well-armed citizens areneeded to keep the federal government in check. Though he upholds the individual
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