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

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Baron, Language and Law, 1. Guns and grammar, 2For over 150 years, American courts interpreted this sentence as establishingthe right of the people to possess arms when serving in the militia. This “collectiverights” interpretation underlay three Supreme Court decisions, the most recent ofwhich dates to 1939 (United States v. Miller 307 U.S. 174 [1939]). Miller had beenconvicted of transporting an unregistered sawed-off shotgun across state lines inviolation of a federal firearms law. He challenged the constitutionality of that law,and a lower court agreed. But the Supreme Court ruled that the Second Amendmentapplies to arms for military service, and Miller’s weapon did not come under itsauspices:In the absence of any evidence tending to show that possession or useof a “shotgun having a barrel of less than eighteen inches in length” atthis time has some reasonable relationship to the preservation orefficiency of a well regulated militia, we cannot say that the SecondAmendment guarantees the right to keep and bear such an instrument.Certainly it is not within judicial notice that this weapon is any part ofthe ordinary military equipment, or that its use could contribute to thecommon defense.from the opinion in Miller by Justice McReynoldsThe collective rights interpretation also came into play in Parker: In hisopinion Judge Silberman notes that the lower court dismissed Parker’s initialcomplaint becausethe Second Amendment, at most, protects an individual’s right to“bear arms for service in the Militia” . . . . And, by “Militia,” the courtconcluded the Second Amendment referred to an organized militarybody—such as a National Guard unit.Parker v. Washington, D.C. (2007), 5But in 1960, opponents of gun control began asserting an alternate, individualrights interpretation, which ignored the militia clause and stressed every American’sright to tote a gun regardless of military service. In a rhetorical coup, they evenstarted calling this new reading the “standard model,” as if the older collective rightsmodel had never existed (Bogus 2000b). The Appeals Court used this individualrights interpretation to rule Washington’s gun ban unconstitutional, arguing that thepeople referred to in the Second Amendment are individual citizens, a readingconsistent with interpretations of the people in the First and Fourth Amendments.Silberman expands on the Amendment’s semantics with definitions of keep and bearfrom the dictionaries of Samuel Johnson (1755) and Noah Webster (1828), and healludes to collections of newspaper and other writing of the time to maintain that,although the Second Amendment does connect bearing arms with the militia, theidiom bear arms does not refer just to soldiering:The term “bear Arms” is obviously susceptible to a militaryconstruction. But it is not accurate to construe it exclusively so.
Baron, Language and Law, 1. Guns and grammar, 3Parker v. Washington, D.C. (2007), 24This interpretation is later echoed in Justice Scalia’s opinion in Heller (see below).Silberman also stresses the fundamental right of self defense. Although selfdefense is commonly recognized as a pre-existing, natural right affirmed by commonlaw and later by the Second Amendment, there is also a long history of armsregulation in English law suggesting that self-defense is one thing, arms possessionis another. England has had strict weapons control since the 14 th -century, when lawsbegan stipulating that guns were for the wealthy, not the peasants or the middle class(Schwoerer 2000). The English Bill of Rights of 1689 is often cited by Americangun lobbyists as guaranteeing everyone’s right to bear arms and is referred to as wellin Parker and in Heller. But the English Bill of Rights limited weapons ownership toProtestants, provided they belonged to the right social class, and it acknowledged therole of the law in further regulating weapons: “That the Subjects which areProtestants may have Armes for their Defence suitable to their Conditions and asallowed by Law” (emphasis added).Above: Excerpt from the manuscript copy of the English Bill of Rights, 1689.British National Archives(http://www.nationalarchives.gov.uk/pathways/citizenship/rise_parliament/docs/bill_rights.htm). Below: Excerpt from the statement of rights as printed in 1689 (An actdeclaring the rights and liberties of the subject . . . , p. 5).In addition to interpreting words like “the people” and “bear arms,” JudgeSilberman concluded that its syntactic structure divided the amendment into a“prefatory” militia clause and an “operative” second clause: the first was a bit ofconstitutional throat-clearing that had no bearing on the right to bear arms. And so heruled that the operative clause prevented the city of Washington from imposing anabsolute ban on handguns.The case was renamed District of Columbia v. Heller because the court ruledthat of the original plaintiffs, only Dick Anthony Heller, a D.C. special police officerwho had been denied a handgun permit, had standing. In the appeal to the U.S.Supreme Court, opponents of gun control argued in part that there are linguisticreasons for dismissing the first part of the Second Amendment, and they interpreted
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