WaPo’s Bench Conference is sharing word that a group of linguists have chimed in on the interpretation of the Second Amendment. Bench Conference quoting from an amicus brief uploaded to Scotusblog:
“Under longstanding linguistic principles that were well understood and recognized at the time the Second Amendment was adopted,” Professors Dennis Baron, Richard Bailey and Jeffrey Kaplan conclude, “the ‘well-regulated militia’ clause necessarily adds meaning to the ‘keep and bear arms’ clause by furnishing the reason for the latter’s existence. The first clause is what linguists call an ‘absolute construction’ or an ‘absolute clause’. It functions by melding the sentence ‘A well-regulated militia is necessary to the security of a free State’ together with the sentence ‘The right of the people to keep and bear Arms shall not be infringed’ to express this thought: ‘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.”
They continue: “The unmistakable military language employed throughout the Amendment informs us of two things: (i) that the right that is protected is the right of the people to serve in the military and keep military weaponry for such service (the meaning of the words ‘keep’ and ‘arms’ and of the idiom ‘bear Arms” in the second clause tell us that), and (ii) that the kind of military service that is protected is that which is in a ‘well-regulated’ militia (the modifier ‘well regulated’ in the first clause tells us that).”
In other words, these cunning linguists claim that it is the right of States to field militias that is protected by the Second Amendment, not an individual’s right to be armed “just because”.
There are two problems with this, I think:
- Law and pure linguistics don’t necessarily coincide. (Try reading legislation or regulations. You’ll quickly see what I mean.) Therefore, it seems questionable to attempt to use pure linguistic logic to base an interpretation of a law on.
- Shouldn’t there be an examination of the word “militia” when undertaking such a translation of the Second Amendment? After all, I thought that in Colonial days, every able-bodied free male of at least a certain age was considered part of “militia” in some sense. And, I thought that it was the impact of attempting to disarm individuals over and beyond the simple purpose of defanging colonial militias which upset the Founding Fathers enough to deem the Second Amendment necessary.