The linguistics of the 2nd amendment
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In the aftermath of Uvalde and other recent mass shootings, there's been renewed discussion of the 2nd amendment. So I'm listing relevant past LLOG posts, culminating with Neal Goldfarb's series of 16 in 2018-19.
"The right to keep and bear adjuncts", 12/17/2007
"What did it mean to 'bear arms' in 1791?", 6/18/2008
"The coming corpus-based reexamination of the Second Amendment", 5/28/2018
"Corpora and the Second Amendment: 'arms'", 2/20/2019
"Corpora and the Second Amendment: Responding to Weisberg on the meaning of 'bear arms'", 5/29/2018
"Corpora and the Second Amendment: Weisberg responds to me; plus update re OED", 6/2/2018
"Corpora and the Second Amendment: Preliminaries and caveats", 6/4/2018
"Corpora and the Second Amendment: Heller", 6/10/2018
"Corpora and the Second Amendment: 'keep' (part 1)", 8/9/2018
"Corpora and the Second Amendment: 'keep' (part 2)", 10/21/2018
"Corpora and the Second Amendment: 'bear'", 12/16/2018
"Corpora and the Second Amendment: 'arms'", 2/20/2019
"Corpora and the Second Amendment: 'bear arms' (part 1), plus a look at 'the right of the people'", 4/29/2019
"Corpora and the Second Amendment: 'bear arms' (part 2)", 4/30/2019
"Corpora and the Second Amendment: 'bear arms' (part 3)", 7/10/2019
"Corpora and the Second Amendment: 'the right (of the people) to … bear arms'", 7/16/2019
"Corpora and the Second Amendment: 'keep and bear arms' (part 1)", 7/29/2019
"Corpora and the Second Amendment: 'keep and bear arms' (part 2)", 8/23/2019
Carl said,
June 1, 2022 @ 6:49 pm
There should be a public campaign to raise awareness of the fact that the second amendment in contemporary English is “Because civilian control of a well functioning military is necessary to a free state, the right to join and serve in the military shall not be infringed.”
Philip Taylor said,
June 2, 2022 @ 3:03 am
How you get from "A well regulated Militia" to "Civilian control of a well functioning military", Carl ? From where did the "Civilian control" come ?
Terry Hunt said,
June 2, 2022 @ 6:04 am
@ Philip Taylor – Presumably because, in a modern state that is not a military dictatorship, someone has to do the regulating, and that regulator is necessarily the (civilian) government, either directly or through an intermediary body.
Strictly, then, the Second Amendment in isolation could imply the acceptability of a US military dictatorship, but I imagine (and hope) that other parts of our Transatlantic cousins' Constitution preclude this.
I'm not sure where this leaves privately owned "security" contractors like the one that used to be called "Blackwater", which seem to operate like militias/militaries. Then again, Britain used to be comfortable with the sizeable army and navy operated by the East India Company.
John Swindle said,
June 2, 2022 @ 6:36 am
I refuse to believe that the intended meaning of the Second Amendment was "I got a gun! You got a gun! All God's children get a gun!" It doesn't make much sense for the 1791 context and it's diabolical today.
Seth said,
June 2, 2022 @ 6:49 am
@ Philip Taylor – It's the issue of the meaning of "well-regulated". Does it mean (as it sounds to modern ears, anti-gun) something like "subjected to a large number of legal restrictions", or more like (pro-gun historical claim) "properly functional and skilled"?
I have to say, while I'm not a gun culture person, this makes little sense:
"A [heavily legally restricted] Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
On the other hand, this makes a great deal of sense:
"A [skilled and proficient] Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Most of us (urban intellectuals) are very far from a culture where guns are a part of daily life. Even those who do recreational hunting are in a context where it's a special event. It makes it very difficult to translate the original worldview.
KeithB said,
June 2, 2022 @ 8:52 am
I have also heard that another reading is:
"Since we need armed patrols to hunt runaway slaves, and also need to prepare for a slave revolt, white citizens need the right to own weapons and drill to use them"
Trogluddite said,
June 2, 2022 @ 9:21 am
@Seth
I find that a false dichotomy. To me, a 'state militia' is a body which is both well-trained _and_ subject to rules of engagement. That is, agents of the state determine who are the enemies of the state and execute military operations via a chain of command. Without such restrictions, one does not have a coherent 'state militia' at all, merely an open door for vigilantism and/or fracture into bands of partisans with ad-hoc definitions of friend and foe.
J.W. Brewer said,
June 2, 2022 @ 10:21 am
One staple of 18th-century Whiggish thought, even more influential in the early U.S. than in England, was fear of "standing armies" (which were Dangerous and prone to abuse by Bad Kings). The "militia" by contrast was a local grassroots organization that was the very embodiment of republican civic virtue. You can't make sense of the political rhetoric of the day if you don't keep in mind that contrast/antinomy, which is rather alien to the way of thinking of most people now alive.
Was the militia "controlled" by the government? Well, in many places it was common for the officers to be elected by the rest of the men, so that's sort of a false dichotomy – it was sort of a separate institution of local government, like in places where a town and a school district have the same boundaries but different elected officials and neither set controls the others. Many of these grassroots-democratic characteristics of the militia made it less than optimally effective in actual wartime situations, which was one factor in the eventual obsolescence of the institution.
Bracketing racial restrictions on gun ownership in the early U.S., which are important for reasons I will mention below,* it is an interesting fact that there were AFAIK no attempts at any point in U.S. history to limit the personal gun-ownership rights of white citizens who were not subject to militia service because they were either female or too old. (I think 45 was commonly the age at which you became exempt although it varied by time and place and I suppose if you were old enough to be excused but turned up with your gun anyway you might not be turned away.)**
*One of the factors that makes (most of the) bill-of-rights parts of the U.S. constitution notoriously difficult to interpret is that as first drafted in 1789 they were (says the majority view) intended only to limit the federal government, but have come to be interpreted as having been in 1868 "incorporated" in the 14th Amendment and to thus restrict state governments as well. Leaving aside the issue that you can't square this very well with a view of the second amendment that theorizes its primary original goal as protection of a state-government institution from federal interference, it means that what people thought the language meant in the 1860's may be just as important as what people thought it meant in the 1790's and that may not be the same thing. Attempts in certain parts of the U.S. to restrict gun possession by newly-freed ex-slaves were among the issues on the mind of the supporters of the Fourteenth Amendment, which unfortunately is itself famously murkily drafted.
**Per a never-yet-repealed federal statute, I was myself technically a member of the unorganized militia of the United States from my 17th birthday until my 45th birthday, although no one ever asked me to do anything in connection with this status other than comply with the publicity-stunt draft-registration law that had been put back on the books in 1980 after the Soviets invaded Afghanistan. https://www.law.cornell.edu/uscode/text/10/246
Seth said,
June 2, 2022 @ 10:25 am
@ KeithB – That's a fiction, which is much more revealing about the Current Year than the history. It's interesting, one can see how it happens. There's many people who apparently think something like "Guns are bad, racists are bad, therefore racists like guns, therefore guns are a Constitutional right in order to help racists". And this chain of pseudo-reasoning is completely convincing because it hits all the present obsessions. Someone could write a great paper on it.
@ Trogluddite – It's less a dichotomy (opposites) than two entirely different usages. The anti-gun argument seems to view it as linguistically similar to something like "a heavily controlled substance". That is, a statement that the object needs to be accessible to people only under very strict conditions approved by remote authorities. But in the specific context of the Second Amendment, i.e. what it was attempting to do, there seems little sense to the idea that it was stating there that the State militias themselves needed to be heavily controlled or severely restricted, whatever relevance that idea might have to military discipline in other contexts.
KeithB said,
June 2, 2022 @ 10:58 am
https://www.npr.org/transcripts/1002107670
J.W. Brewer said,
June 2, 2022 @ 11:16 am
@KeithB, if you skim down through the whole transcript to the part about the enactment of the Mulford Act in 1967 you will see that "Historian Uncovers Racist Roots of Modern Gun Control Legislation" could be an equally appropriate headline for the piece. So pervasive is racism in American history that it can be a plausible explanatory factor for seemingly opposed phenomena!
Whether the Second Amendment should be interpreted in a way that gives greater legislative discretion to enact restrictions that in actual historical practice have been used in perhaps suspiciously racially-disparate ways is not necessarily a question that syntactic analysis of the amendment's own text can answer in isolation. And as I said above, the conceptual relocation and redirection of the amendment 75 (or more) years later at a time when the constitution was being radically changed in an attempt to limit traditional forms of state-sanctioned-or-mandated race discrimination is also part of the interpretive challenge.
Seth said,
June 2, 2022 @ 11:27 am
@ KeithB – See, e.g. here, for extensive debunking
https://www.theroot.com/2nd-amendment-passed-to-protect-slavery-no-1790894965
I find that belief so intriguing. It's such a reflection, such a projection, of contemporary thought. It's telling people, "Those debates 200+ years ago, it wasn't about then-hot issues such as standing armies, potential Federal vs State military conflict, revolution against central government. No, it was all about exactly what is hot right now, racism and The Police. And the bad guys then are exactly the bad guys now, concerned with the very specific topics which are mediagenic at the moment, isn't that amazing? You don't need to know anything about the times or the worldview then, just your tribal allegiance and talking-points, it's all the same."
Trogluddite said,
June 2, 2022 @ 12:25 pm
@Seth, @J.W.Brewer: Thanks for relieving me of some contextual (or maybe just parochially British) blinkers – my mental parser can be very stubborn in reading "state" to mean "nation"! ;-)
J.W. Brewer said,
June 2, 2022 @ 6:57 pm
@Trogluddite: If I may advert to some unfortunate long-ago historical disputes between our respective nations, the back-story of the Second Amendment has a decidedly anti-British component, and one extremely key date to understand here is April 19, 1775, where one faces the considerable problem of subsequent mythologization of actual history, yet the actual history is, in fact, actual. Well-trained professional soldiers of the regular British army, from units with posh names like the Royal Welch Fusiliers and whatnot, found themselves defeated in combat by a bunch of unprofessional amateurs from the Massachusetts colonial militia (organized on a town-by-town basis, with organization and command structure above that level being largely theoretical), who turned up on short notice to fight, and to shoot to kill, with whatever privately-owned guns they happened to have in their houses.
At sunrise the Brits got to Lexington, where they substantially outnumbered the town's own militia, shots were exchanged, men were killed, and the Brits kept going. Later in the day, when the British advance guard of about a hundred got to the North Bridge (the "rude bridge that arched the flood" in the subsequent poem) at Concord, they were confronted, and outnumbered, by about 400 armed men (three towns' worth), were bested in an exchange of gunfire in which more men on both sides were killed, and decided to reunite with the rest of their comrades and start heading back toward Boston. As they tried to get back to Boston, they came under fire from both sides of the road (suffering increasing casualties) from a thousand men, then two thousand, then eventually four thousand, from approximately 30 separate town militias whose men had changed their plans for the day on short notice due to what they perceived as the call of civic duty. By sunrise the next morning the entire British garrison in Boston found itself under siege by about 15,000 armed men from throughout Massachusetts and neighboring colonies who had arrived overnight, none of them professional soldiers, none of them having planned 48 hours earlier to be doing what they were doing, and overwhelmingly carrying whatever privately-owned guns they had happened to have in their houses.
You might well say that none of this self-evidently dictates from a public-policy perspective what constitutional restrictions there should or shouldn't be on government regulation of private gun ownership in the U.S. in the 21st century, but if you don't understand this history and the fairly obvious mythic/romantic resonance it lends itself to, you don't understand the full context of the debate. This may also seem to have strayed quite a ways from strictly linguistic topics, but if you ask what sort of real-world associations were evoked for a speaker of American English in 1789-91 (or in 1866-68) by the mysterious-to-moderns wording "A well-regulated Militia, being necessary to the security of a free State," this is a paradigmatic instance of the sort of event they would have been likely to think of.
Carl said,
June 3, 2022 @ 8:39 am
> How you get from "A well regulated Militia" to "Civilian control of a well functioning military", Carl ? From where did the "Civilian control" come ?
"Militia" = "civilian control". The more you read about the pre-history of the 2A, the more you realize the rights it was made to protect are revolve around civilian control. The context of the 2A is that the British had previously disbanded Protestant militias, which had let Catholic militias harass them, so the Protestants demanded to never be collectively disarmed again. In an American context, the worry was that Congress could disband anti-Native American militias or the slave patrol, thereby giving the Federal government implicit control of border policy and slavery.
I'm afraid I agree with the pro-gun people that "well regulated" just means "people who have been sufficiently drilled so they can shoot well". But the part about a *free* state is that it's a militia, not a standing Army, so it has civilian oversight.
chris said,
June 5, 2022 @ 8:53 pm
IMO the biggest linguistic issue with the Second Amendment is the expansion in meaning of "arms". It now potentially includes lots of things that didn't exist at all when the Bill of Rights was written.
Nobody who proposed, debated or voted on the Amendment had ever seen an AR-15 or anything remotely like it, so we can't know whether they would have thought it suitable for civilian ownership; conversely, no one ever committed an atrocity like the ones from Columbine to Uvalde with a muzzleloader and a horn full of black powder. Lumping those both into the general term "arms" creates a new meaning that wasn't there before.
Modern military technology also makes standing armies inevitable, since militia can no longer effectively secure a free state, but the first part of the Amendment still *means* the same thing even though it has been factually false for a century or more.
John Swindle said,
June 9, 2022 @ 1:47 am
If they had said "a well oiled Militia" it still would have been ambiguous.
Raph said,
June 13, 2022 @ 7:26 am
@chris
"The Second Amendment applies to belt-fed, electrically-driven, heavy-caliber, multi-barrel, cannons, just as the First Amendment applies to room size server farms capable of passing written communications to billions of people per second."