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08/07/2018

Alison LaCroix on Historical Semantics and the Meaning of the Second Amendment
Michael Ramsey

At The Panorama, Alison L. LaCroix (Chicago, History): Historical Semantics and the Meaning of the Second Amendment.  From the introduction:   

The task of understanding the meaning of the words and phrases that constitute legal texts has always been an important one, but the urgency is even greater today. The Constitution includes the following phrases, all controversial but none self-evident: “keep and bear arms”; “the recess”; “cruel and unusual punishment”; and “gifts, emoluments, offices or titles.” The leading modes of constitutional interpretation — originalism, textualism, and common-law constitutionalism — rely on distinct theories of meaning, but they do not agree on which meanings are relevant or even on what “meaning” means.

With my colleague Jason Merchant of the University of Chicago’s linguistics department, I have been working for the past three years on a project that brings together the fields of law and linguistics, as well as my other field, intellectual history. Our project, titled “Historical Semantics and Legal Interpretation,” brings together research in historical jurisprudence and in theoretical and computational linguistics in order to understand the meanings of words and phrases in context. Recent advances in theoretical and computational linguistics, as well as vast new corpora of American and English usage, make possible the precise identification of the lexical shifts that have occurred over the past two centuries.

And from further along:

Originalism’s version of a historical approach stands in stark contrast to the rigorous empirical research that Chief Justice Roberts dismissed as “sociological gobbledygook” in last term’s partisan gerrymandering case, Gill v. Whitford. Any informed modern speaker of English can read an old text and determine what it means, the theory implies. Moreover, the theory relies on a tool that most historians, as well as linguists, treat with caution: the dictionary. In particular, the justices tend to reach for Samuel Johnson’s Dictionary of the English Language, first published in 1755.

The Court’s recent decisions on the Second Amendment illustrate some potential problems with the non-specialist view of history. In District of Columbia v. Heller, decided in 2008, the Court addressed the constitutionality of a DC law regulating gun ownership. In a five-to-four decision, with Justice Scalia writing for the majority, the Court held that the Second Amendment protects an individual right to possess a firearm, unconnected with service in a militia.

Justice Scalia’s reasoning was a triumphant moment for originalism. He began his opinion by describing the Court’s approach to the Second Amendment: “In interpreting this text, we are guided by the principle that [t]he Constitution was written to be under­stood by the voters; its words and phrases were used intheir normal and ordinary as distinguished from technical meaning.” By “normal and ordinary,” he meant “known to ordinary citizens in the founding generation.”

The Court’s analysis emphasized the complex structure of the Second Amendment: “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.” Justice Scalia wrote that the “prefatory clause” (“A well regulated Militia, being necessary to the security of a free State”) “does not limit or expand the scope of the operative clause” (“the right of the people to keep and bear arms, shall not be infringed”). The prefatory clause was therefore useful only to “clarify an ambiguous operative provision.” Since the majority held that the operative clause clearly endorsed an individual right to keep and bear arms, they found that the prefatory clause simply announced “the purpose for which the right was codified.”

But our research demonstrates that the language of the Second Amendment points toward a more collective interpretation of the right of gun ownership than Justice Scalia’s opinion acknowledges. The prefatory clause’s reference to a “well regulated Militia” then becomes more meaningful than the Court suggested in Heller.

In our work, we have asked two questions: (1) Does the subject of “bear arms” always have to denote a collectivity? (2) Does the subject always have to be plural?

The post then presents a summary of the linguistic analysis.

(Thanks to Saul Cornell for the pointer.)