Linguistic analysis of the second amendment. Again.

[WeedWacker]

Found this article today: https://amp.theatlantic.com/amp/article/607186/

Essentially it calls out Scalia on his interpretation of historical language and says he got the individual part wrong in Heller. At first blush the historical analysis methodology seemed to cherry-pick how teens were used to get a predetermined conclusion. Or am I wrong and Heller may get a revisit in the future?


ETA: link was broken, fixed

[Aguila Blanca]

What does the Second Amendment mean? This question is at the center of one of the most divisive debates in modern American constitutional law. The amendment itself contains 27 words: “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 provision references both the collective right of a militia and an individual right. Does this two-century-old text, then, mean that Americans today have a right to gun ownership and use?

Wrong right from the start.

"A well regulated militia, being necessary to the security of a free State, ..." is a prefatory clause. This has been discussed in innumerable linguistic (or, more properly, grammatical) analyses over the course of decades. Justice Scalia got it right: a prefatory clause is an introduction -- it's background, essentially extraneous. It does NOT alter, amend, modify, or limit the meaning of the core phase. The core phrase of the Second Amendment is: "[The] right of the people to keep and bear Arms, shall not be infringed."

Period. Full stop.

Scalia concluded that the phrase bear arms “unequivocally” carried a military meaning “only when followed by the preposition ‘against.’” The Second Amendment does not use the word against. Therefore, Scalia reasoned, the phrase bear arms, by itself, referred to an individual right. To test this claim, we combed through COFEA for a specific pattern, locating documents in which bear and arms (and their variants) appear within six words of each other. Doing so, we were able to find documents with grammatical constructions such as the arms were borne. In roughly 90 percent of our data set, the phrase bear arms had a militia-related meaning, which strongly implies that bear arms was generally used to refer to collective military activity, not individual use. (Whether these results show that the Second Amendment language precludes an individual right is a more complicated question.)

Further, we found that bear arms often took on a military meaning without being followed by against. Thus, the word against was sufficient, but not necessary, to give the phrase bear arms a militia-related meaning. Scalia was wrong on this particular claim.

"Implied is not "proves." "Often" is not "always." This conveniently ignores the fact that the constitutions of several of the original 13 states specifically mentioned self defense as part of their respective 2A analogs.

Pennsylvania: Article I, section 21. The right of the citizens to bear arms in defense of themselves and the State shall not be questioned;

Vermont: That the people have a right to bear arms for the defense of themselves and the State – and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.

New Hampshire: Article 2-a. All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.

Connecticut: Article 1, Section 15. Every citizen has a right to bear arms in defense of himself and the state.

Delaware: Article 1, Section 20. A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.


The anti-gun zealots will never stop trying to "prove" that the Second Amendment doesn't mean what it says. They've been wrong for decades, and they're wrong again. The 2A might as well say, "A ham sandwich, being a good choice for lunch, the right of the people to keep and bear Arms, shall not be infringed."

[44 AMP]

To test this claim, we combed through COFEA for a specific pattern, locating documents in which bear and arms (and their variants) appear within six words of each other.

First point, when you search for a specific pattern, that's what you will find.

I've no doubt their search was accurate, and that the specific pattern they were looking for shows up mostly in relation to militia and service.

It does however, miss the nuance of language, also in use during Founding times, that while one may bear arms in service to the state, and on militia duty, that is not the language used to describe the individual citizen with a gun when not on duty. When carried in private use (personal protection, hunting, etc) one is not "bearing arms" one is "armed".

And while "bearing arms" is an accurate description of being armed, its not the term usually used for private personal carry, so a search for a specific phrase such as "bear arms" would likely miss "being armed" or "armed" as outside its parameters.

And what is missed might be the most important part.

Failure of a search engine to find a specific phrase doesn't mean anything as to what human rights exist.

[zukiphile]

Originally Posted by WeedWacker

Found this article today: https://amp.theatlantic.com/amp/article/607186/

Essentially it calls out Scalia on his interpretation of historical language and says he got the individual part wrong in Heller. At first blush the historical analysis methodology seemed to cherry-pick how teens were used to get a predetermined conclusion. Or am I wrong and Heller may get a revisit in the future?

It "calls out" Stevens too. It's a fairly awful piece. That isn't a criticism of you for bringing it up but for the Atlantic for running it. It reviews a method the result of which confuses the court's conclusion as well as the position of dissenters with a word search that doesn't bear on the scope of the right. The Atlantic piece is modestly supportive of the individual right view, but the method underlying its observations bears little relation to what the words mean.

The article notes that search engines in 2008 weren't as good as they are now so the court in Heller could not really know how the terms were used. The COTUS was ratified in the 18th century by people who also didn't have Lexis or google and also would have read words for their ordinary meaning, not for professional military jargon.

When writers posit that "the people", "keep", "bear" and "arms" each have unique meaning only in the 2d Am., and that meaning undercuts the apparent meaning of an explicit constitutional right, it's fair to give lots of scrutiny to the reasoning and prudent to look for an agenda. John Paul Stevens may have believed every word of his dissent in Heller, but it seems beyond reasonable dispute that he held deeply a view that the federal government should be able to extensively regulate the rights of individuals to have or keep arms.

[Wyosmith]

The leftist/Communist always tried to convince all others that only "experts" can tell you what it true and what is false. But the same government that tried to tell you that you need to let "the court" decide what the words of a law mean will then tell you you have to obey that which you cannot understand without a judge of lawyer to guide you?.

Such a law would be void for vagueness! That's a foundational principal of law. You can't be requited to obey a law that can't be understood.

So the leftist "experts"(liars) are always going to try to flood you with verbiage, but the first 3 words of our Constitution tells you all who it is that wrote it, and who it's directed to. WE THE PEOPLE

Not them the bureaucratic leftists.

So here it is in the common language of the people so all can see and understand:


Correct definitions of the words and phrases , as used by the founding fathers at the time of the adoption of the "Bill of Rights".


A well ______________________________(successful or effective)
regulated _____________________________(accurate and properly functioning)
Militia______________________________( Every able bodied man between the ages of 17 and 60 who has not been adjudicated mentally ill or convicted of a capital or infamous crime, who has at least 2 front teeth and a trigger finger.)

being necessary________________________( Vital and indispensable)
to the security__________________________(Freedom from risk or danger; safety)
of a free______________________________( Not imprisoned or enslaved; being at liberty. Not controlled by obligation or the will of another
State,__________________________________(the condition or circumstances of a person or thing, a sovereign political power or community, the territory of such a community)

the right _______________________________(a freedom or power that is morally or legally due to a citizen. God Given. Not a privilege which can be revoked, but a condition that can not be lawfully taken away for any reason by another, and can only be surrendered by the holder for the cause of free will, as a sacrifice. A citizen can be deprived of rights criminally by act of infringement by another citizens or official, which would not constitute a waver of rights, but such acts are the very essence of base vulgarity and crime. The state of liberty therefore can be surrendered, the citizen stepping out from under the protection of law, and in fact giving the rights up, but the act of attempting to deprive another of a right or set of rights is unlawful in every instance. )

of the people__________________________( the body politic of the nation. Individual person. All the common men women and children ,all and in singular. The same context as used in the 1st, 2nd, 4th 5th 9th and 10th amendments and implied in the 6th 7th and 8th)*

to keep ______________________________(To retain personal possession, have a supply of, or to maintain for use or service.)
and bear ______________________________(To carry from one place to another; transport at will, unrestrained .)
Arms________________________________ (weapons that can be man packed by 4 men or fewer. Any instrument or instrumentality used in fighting in a military action.
shall not be infringed.____________________(To transgress, violate, defeat, invalidate or encroach on someone or something in any way shape form or manor.

[danco]

Originally Posted by Aguila Blanca

"A well regulated militia, being necessary to the security of a free State, ..." is a prefatory clause.

Exactly.

[Aguila Blanca]

^^^ danco, that's perfect. Somebody needs to make that into a tee shirt.

[44 AMP]

Arms________________________________ (weapons that can be man packed by 4 men or fewer. Any instrument or instrumentality used in fighting in a military action.

Where does "man packed by 4 men or fewer" come from?

One can find examples where cannon and even entire "ships of war" were privately owned and accepted as such in Colonial times.

Our Congress issued "Letters of Marque" to Privateers, AUTHORIZING the use of their private ARMED ships in time of war.

Tench Coxe used the phrase "all the terrible implements of the soldier" and to me that includes crew served weapons as well as individual personal arms.

Do not confuse custom, or military definitions with our natural rights. its easy to do, but its not right.

[Hal]

It's - The Atlantic - a liberal biased piece of garbage propaganda.

Only a fool and an idiot would bother listening to what they spew.

[Skans]

Wrong right from the start.

"A well regulated militia, being necessary to the security of a free State, ..." is a prefatory clause. This has been discussed in innumerable linguistic (or, more properly, grammatical) analyses over the course of decades. Justice Scalia got it right: a prefatory clause is an introduction -- it's background, essentially extraneous. It does NOT alter, amend, modify, or limit the meaning of the core phase. The core phrase of the Second Amendment is: "[The] right of the people to keep and bear Arms, shall not be infringed."

Period. Full stop.

This is exactly right. Another way I like to explain it is that nominative phrase is but one example the authors provide as to the right enumerated in the rest of the sentence. Nothing in the sentence makes the nominative phrase the exclusive reason for the individual right to arms.

Another way to look at this is that the 2nd Amendment actually addresses 2 rights - the right to bear arms directly, and further it is also implies that individuals have a right to form militias for the security of a free state. While this is never openly discussed when it comes to the 2nd Amendment, I do believe that it protects a constitutional right for individuals to form an armed militia to guard our borders from foreign invasions.

[44 AMP]

I do believe that it protects a constitutional right ….

This is the basic key thing so often ignored or misunderstood (even deliberately) the "Bill of Rights" grants NO RIGHTS. IT is a list of things the Government MAY NOT DO, in general or in specifics, regarding some of the rights of the people.

AND it even says that the list is NOT all inclusive, that there are rights which are not named in it, as well.

The Bill of Rights is not, and was not written to grant us any rights, it was written to protect our rights FROM government abuse.

[HiBC]

I'm not a legal mind.
I'm supplementing Wyosmiths fine post with some alternate context.

Lawmakes and judges might lean toward contexts that re-enforce their power.:Specifically "regulate".

What does it mean to "regulate" the barrels of a double rifle or shotgun?

What does it mean to "regulate" the machine guns of a fighter plane?

What does it mean to "regulate" the guns of an artillery battery?

What does it mean to have a "regulated" set of dueling pistols?

And what is the story behind Von Steubens "Regulations"

I'm suggesting that among people familiar with the language of arms and militia the term "well regulated" might mean something entirely different than what a bureaucrat might find.

Similarly,many might find the meaning of "preservation of the free state" in terms of a map with lines bounding a chunk of real state on a map that has a name,or the politics ,laws,and government of that real estate.

Maybe. But what if the meaning of "state" in this case s about a state of being? As I recall a noun is a person,place,thing,being or state of being.

As water an be in a frozen state,a liquid state,or a gaseous state ,people can be in a state of being free. A status of free men and women,versus THE STATE as government.....Which throughout history seems to consider Free Men and Woman as a challenge to be overcome.
Our Founders,through our Constitution and Declaration of Independence ,recognize and address this conflict between THE STATE and the Status of being Free.
Which,IMO,should heavily bias interpretations of the language of the Constitution to favor Individual Liberty over Political Power of the State

[Aguila Blanca]

Originally Posted by HiBC

I'm suggesting that among people familiar with the language of arms and militia the term "well regulated" might mean something entirely different than what a bureaucrat might find.

It's not a question of language about arms vs. language about bureaucracy, it's more a question of the evolution of the language. (And cherry picking meanings.) In early America, Connecticut was a center for clockmaking. One of the early American clock types was known as the regulator clock. Today, there's a company that specializes in them:

https://www.theregulatorclockcompany.com/

Samual Johnson's 1755 dictionary defines "regulate" as follows:

To Régulate. v.a. [regula, Lat.]

1. To adjust by rule or method.

Nature, in the production of things, always designs them to partake of certain, regulated, established essences, which are to be the models of all things to be produced: this, in that crude sense, would need some better explication. Locke.

2. To direct.

Regulate the patient in his manner of living. Wiseman.

Ev'n goddesses are women; and no wife
Has pow'r to regulate her husband's life. Dryden.

Our view (if I may presume to speak for the pro-gun community collectively) seems to favor meaning #1, whereas the bureaucratic faction tends to favor meaning #2.

[ShallNotBeInfringed]

I think a key phrase that is often overlooked is the "the people".

In no place has "the people" been construed to mean the Federal or State government. The people are the citizens of the state.

In the First Amendment we read "... the right of the people peaceably to assemble and to petition the government for a redress of grievances."

In the Fourth Amendment we read "... The right of the people to be secure in their persons, houses, papers ..."

In the Ninth and Tenth Amendment we also see the rights of "the people" distinguished from that of the state.

And, of course in the Preamble to the US Constitution we read "We the People of the United States, in Order to form a more perfect Union ... "

Therefore, in the Second Amendment, "the people" refers to the people and cannot be construed to refer to the State Government.

Then again, I'm not a lawyer.

[Hal]

I think a key phrase that is often overlooked is the "the people".

I think that may be due to how the preamble of the Bill of Rights is worded.
Here it is :
https://www.revolutionary-war-and-be...of-rights.html

The key there would be the second paragraph that says, the .gov is the one that's having it's powers limited.
The Bill of Rights - is a declaration of what the .gov is NOT allowed to do, not what we the people ARE allowed to do.

[ShallNotBeInfringed]

The Bill of Rights - is a declaration of what the .gov is NOT allowed to do

That's 100% correct and was what I was trying to emphasize.Too many people argue that the militia is, in effect, the National Guard and is controlled by the governor. The Second Amendment was not for the State to keep a militia in order to protect it from the Federal Government and we see that as every time "the people" are mentioned it refers exclusively to citizens.

[Aguila Blanca]

Amendment 10 - Powers of the States and People


The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In other words, the Constitution (of which the Bill or Rights is a part) does not grant rights to the People, the Constitution grants certain powers to the [federal] government. Any powers not granted to the [federal] government by the Constitution are reserved to the states or to the People. From there, it's up to each state and its citizens to argue over whether the state government or the people of that state have each right/power.

[TDL]

Or am I wrong and Heller may get a revisit in the future?

I am in DC and we know for a fact that as soon as SCOTUS composition changes Heller will get a series of major revisits. Gura SAF and everyone involved in Heller I-III fully expect this. It is main target to be whittled down or reversed.
The fact that it is consistently openly attacked, not just on language and legal arguments, but with legal commentators also pointing to the fact that it was only 5:4, answers your question.

[Aguila Blanca]

Originally Posted by TDL

The fact that it is consistently openly attacked, not just on language and legal arguments, but with legal commentators also pointing to the fact that it was only 5:4, answers your question.

This is true but from our perspective, once you discount the extreme anti-gun bias of the four dissenting votes, it's meaningless. What they're really saying is, "We'll fix it once we have an opportunity to stack the court our way." This ignores the reality that justices such as Scalia were honest enough to follow the law where the law went, and to vote for what a law said even if they personally felt the opposite.

More to the point (or maybe less?) -- how many World Series have gone seven games? Should we say that the Saint Louis Cardinals are not "really" the 2011 World Series champions because they only won 4 games and the Rangers won 3? Or that the Chicago Cubs aren't "really" the 2016 champions because they only won 4 games and the Cleveland Indians won 3?

Nonsense.

There have been a lot of 5-4 decisions in the history of the Supreme Court, but the vote for most of them has been forgotten, and the decisions are now accepted under stare decisis. The Heller decision is one of a very few that is under constant attack, right from the moment it was announced.

[natman]

Originally Posted by danco

Exactly.

Excellent work. The "A well-regulated militia" clause is an absolute phrase (AKA an absolute clause). Absolute phrases offer background, detail and nuance to the main clause but do NOT change the meaning of the main clause.

Absolute Phrase

An absolute phrase is a phrase that modifies a noun in a sentence, but it is not connected to the sentence by a conjunction. It is set off with a comma only, and it could be removed from the sentence without changing the meaning of the sentence.
https://www.softschools.com/examples..._examples/420/ [emphasis added]

An absolute phrase can also be recognized by the property that if you remove this phrase, the main phrase will still make sense and the meaning of the sentence will remain the same.
https://www.grammar.com/absolute_phrase [emphasis added]

A good deal of the confusion about the Second comes from it's use of the word "being" in the prefatory clause, in a way that is unusual to modern ears.

"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."

James Vanden Bosch, a grammarian and expert on absolute clauses, has this to say about it:

In nearly every instance, it makes perfect sense of the entire sentence to turn the AC into an adverb clause of cause by introducing it with “because” and changing the participial “being” into a verb marked appropriately for person, number, and tense.
Absolute Constructions and the Second Amendment: A Corpus Analysis, page 17 https://www.law.ufl.edu/_pdf/LTDCA_2...ings-print.pdf

And in Heller, Scalia did exactly that:

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased,

“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.

DC v Heller page 3 [emphasis added]

Note that there is not one word in the amendment to indicate that the prefatory clause imposes any sort of conditionality on the operative clause. No "only if". No "solely when". It can't because it's an absolute phrase and absolute phrases do not change the meaning of the main phrase.

I don't think there would be much doubt if the authors of the Bill of Rights had simply written the Second as "The right of the people to keep and bear arms shall not be infringed." The presence of a prefatory absolute phrase doesn't change that.

[Aguila Blanca]

Originally Posted by natman

A good deal of the confusion about the Second comes from it's use of the word "being" in the prefatory clause, in a way that is unusual to modern ears.

"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."

Much of the confusion also arises because of the comma between "Militia" and "being." And isn't it that comma that appears in some of the original copies of the Bill of Rights but not in other copies? Remember, they didn't have photocopiers back then. A copy of the proposed amendments had to be sent to the legislature of each state for ratification. Those copies were all manually transcribed. IIRC, some of those copies had the comma and others didn't, which suggests that it wasn't there for grammatical purposes, but only because (as people often do today) the scribe would have paused at that point for a breath, and so he stuck in a comma.

I have a friend from Europe who apparently buys commas by the metric ton, and he sprinkles them so liberally throughout his writing in English that it's sometimes impossible to figure out what he's really trying to say. His use of commas is entirely phonetic rather than grammatical. He doesn't follow any rules for their use, he just drops them wherever he would pause for a nanosecond in speaking.

[natman]

Originally Posted by zukiphile

John Paul Stevens may have believed every word of his dissent in Heller, but it seems beyond reasonable dispute that he held deeply a view that the federal government should be able to extensively regulate the rights of individuals to have or keep arms.

Judge Stevens is on record as saying that the Second Amendment should be amended to read: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed."
http://joshblackman.com/blog/2014/03...ix-amendments/

He had every right to make the suggestion, but he interpreted the current version of the Second as though it had been amended that way, rather than on how it was actually written. A judge is supposed to rule based on how the law is written, not on how they think it should have been written.

[Tom Servo]

the right of the people to keep and bear arms when serving in the Militia shall not be infringed.

OK, I'll bite. Where are the people supposed to get the guns they need for militia service?

[natman]

Originally Posted by Tom Servo

OK, I'll bite. Where are the people supposed to get the guns they need for militia service?

Good question. I guess he thought the government would issue them to militia members. You'll have to ask His Honor.

[peacefulgary]

The first 10 Constitutional Amendments are known as "The Bill of Rights".
And they pertain to individual rights.

Why would the Founding Fathers have made the 1st, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, and 10th all be individual rights, but not the 2nd?