Author Topic: second amendment  (Read 964 times)

Offline tk

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second amendment
« on: July 07, 2016, 11:39:44 AM »
Hi everybody,

New here. Was an English major in college many years ago. Based on what I remember of dependent clauses, I have long contended that the second amendment of the U.S. Constitution relates the right of gun ownership and use to militia service. By my reading, it has nothing whatsoever to do with a personal right no matter what the Supremes say. What say you?

I hope this isn't a too political topic for this forum. I'm a gun owner myself so you must understand I'm not grinding an axe here. It's entirely about the language.

Best,
Tom

Offline panini

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Re: second amendment
« Reply #1 on: July 07, 2016, 09:51:56 PM »
I suggest reading D.C. v. Heller (http://www.supremecourt.gov/opinions/07pdf/07-290.pdf) especially the amicus brief by the linguists (http://www.scotusblog.com/wp-content/uploads/2008/01/07-290_amicus_linguists1.pdf). They show how the "prefatory clause" does not in fact mean "but only for the purpose of". A simple test is to construct analogous sentences about cakes, teddybears and doing laundry, where political ideology wouldn't sway anyone, and you can see that the prefatory clause is simply contextualizing information.

Offline Daniel

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Re: second amendment
« Reply #2 on: July 08, 2016, 11:30:48 AM »
Thanks for the link, Panini. I'm somewhat confused by your summary, though. The linguists' amicus brief concludes that the decision should be reversed and that the sentence was misinterpreted by the court.

I see two interpretations:

The linguists' brief makes it clear that the meaning of the sentence is equivalent to:
"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."

1. It is clear that the intention of the Framers, the reason that they wrote this, was BECAUSE of the militia, etc. To me, that seems to answer the question: "What is this about?" It is about the use of weapons in the militia. It is not about hunting or personal self-defense.

2. From a strictly grammatical perspective, there is an argument, parallel to what panini suggested, where the first clause is one of circumstance and context. It is relevant but not exclusive to other reasons. This is strictly speaking all that is said by the clause. This is similar to the standard logical connective analysis of the word "if", technically "material implication": https://en.wikipedia.org/wiki/Material_implication_(rule_of_inference)
The argument is as follows: given two statements P and Q, we can consider the truth conditions of a combination of P and Q to follow from the truth conditions of P and Q individually. We can make a truth table as follows:

P — Q | P->Q
T — T | T
T — F | F
F — T | T
F — F | T

(The symbol -> reads "if" (technically materially implicates), so here we could instead write "Because P Q" or some similar notation.)

The first and last lines of this truth table are obvious. Let's consider a real scenario: "If it rains, then the ground is wet". We can simplify this to something like "rain->wet". The first line describes a scenario where "rain" is true (T) and so is "wet". It is raining, and it is wet. Obviously this sentence ("If it rains, then it is wet") is true in that context. The same is fine when both things are false: it's not raining, and it's not wet. No problems there. Like "because", "if" often implies causation. The middle two lines in the truth table require more attention.

The second line is also fairly obvious-- it's false. It is raining, but it is not wet. This means that "If it rains, then it is wet" (rain->wet) must be false. It's not wet, yet it is raining. Wetness does not necessarily follow from rain. It is not materially implicated. There is no correlation.

The third line, on first glance, seems like it should also be false. Many speakers have this intuition. It is NOT raining, but the ground is wet. Therefore, there is no correlation, no causation, and the sentence seems to be false. There is a different kind of logical connective, called a biconditional, where this would indeed be false, because the truth values of each part do not match. "If and only if it rains then it is wet" (rain<->wet, or we could write rain=wet). But material implication, and "if" in much usage, actually does allow for this to still be true. There may be some other cause for the ground being wet, even if it is not raining. That does not mean that "If it rains, it is wet" is false. It just means that this context has no bearing on the validity of the statement, just like the last line of the truth table. In other words, it fails to provide counter-evidence. It is consistent with the combined sentence being true. The sentence "If it rains, it is wet" is STILL true, even though there are also other reasons for wetness. Maybe someone was watering the lawn with a hose, or maybe someone spilled a bucket. Still, if it DOES rain, then the ground would be wet. There are potentially many reasons, but one of them is rain.

In the case of "because", in general usage it seems that the logic works out as with "if". "Because militias are necessary, weapons are also necessary." -- this does NOT say that there can be no other reasons for weapons. It only says that one important reason is for militias.

We might want to assume a tighter causal relationship with "because" than "if", but I don't think that's necessarily the case. "Because I am hungry, I want pizza" does not mean that the sentence "Because I like pizza, I want pizza" is false.


How would we decide between these positions?

Arguments for loose interpretation:
1. "Because" gives one reason and does not exclude other reasons. Individuals might have guns for the militia, or for any other reason, like hunting.
2. Having established that the militia makes bearing arms a right, this extends to other uses of those arms as well. It does not say anywhere that the arms can ONLY be USED for the militia. It says that we need them FOR the militia, and that we should keep them for that purpose. But if we have them, it seems only reasonable (or at least not excluded) that we would also use them for other things. For example, a sword might be useful for cooking (especially if one butcher's their own meat), and the second amendment does not say "you can have swords but you can't also use them to cook". In short, this would be the "ok, we get guns, so now we'll do other stuff with them" argument.

Arguments for restricted interpretation:
1. The context of the sentence is clearly about the militia and only the militia. For determining other questions about guns, we could turn to other parts of the document or other documents or make new legislation. This sentence does not say one way or the other what we should do about individuals with guns for self-defense or hunting. Therefore, it does not protect that right or have any relevance to gun ownership, EXCEPT in the context of militias. (This is an interesting logical correlate of the reason that we could also argue, as above, that it doesn't say "only". It also doesn't say anything else.)
2. The phrase "bear arms" is shown clearly by the linguists' brief to be about military arms, not general weapons for the individual. It's a phrase, not just one use of arms. So IGNORING the first clause, this ONLY is giving people the right to do military things. It doesn't specify a right to do non-military things.
3. The logical analysis of "because" (/"if") above is not the best way to analyze real uses of language. The intention for writing the sentence, in context, is more important. They chose to write what they did, and not something else. We should probably interpret what they meant, rather than what they said.
4. The technological and political landscape has changed so drastically in the past 200 years that different problems have come up. The word "arms" c.1791 does not mean what "arms" (or "weapons" or "guns") means today [at least in its extension, as opposed to its intension). Nuclear weapons are not something we want individuals to stockpile in their basements or use for hunting. Guns are also technologically more advanced. Where the line should be drawn is up for debate, but it seems that almost everyone would agree there is a line somewhere. At the very least, there is no constitutional right to specific types of arms, only arms in general. Unless we interpret it to mean that we should have guaranteed access to ALL arms, including nuclear launch codes, then we must interpret it to mean "the right to bear some arms", maybe "sufficient arms". The question, then, is what we need.


In summary, this is a complicated issue. Personally I am in favor of the more restricted interpretation, but I can't say that isn't somewhat biased by my political perspective. I hope some of my thoughts about it might be helpful.

--
Panini, what do you mean about paraphrasing with cakes, etc.? I understand the point, but what is the exact sentence you would use, and what would you replace "militia" with? Or would you keep "militia", thereby making the two clauses implausibly related?
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Offline panini

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Re: second amendment
« Reply #3 on: July 09, 2016, 02:52:30 PM »
My point about cakes and teddy bears is that in order to understand the meaning of a linguistic structure, one should construct analogous sentences that involve things that don’t entail a particular political ideology, because it is (sadly) known that most people, including Supreme Court justices, are incapable of using semantic principles to arrive at meaning when the topic is a highly-charged political issue, instead they use their political ideology to construct a semantic interpretation. So to see what the Second Amendment says, you should construct parallel structures like “A well-stocked toy box being necessary to the psychological well-being of children, the right of parents to purchase and own teddy bears shall not be infringed”. Or, “Tasty cakes being a pleasure to eat, the right of individuals to purchase and bake with flour shall not be infringed”. By stepping away from the emotion-chargedness of guns (or alcohol, or porn, or any number of other things that some people dislike), we can see that the structure “X being necessary to Y, the right to Q shall not be infringed” boils down to “The right to Q shall not be infringed”, and not “The right to Q shall not be infringed in case Y is involved for the the purpose of X, and otherwise can be freely infringed”.

The central linguistic question is what the Second Amendment says (asserts). Asking what a sentence is “about” is problematic, because aboutness is rather vague. Rather than asking what a statement is about, it is more informative to ask why a particular statement was made. The reason why the Second Amendment was written was that Madison and others realized that it was important for the people to be able to effectively resist oppressive government (as they just did), and that a possible way of suppressing rebellion would be by restricting the right of individuals to have guns. In fact, the British banned the import of firearms and gunpowder in 1774 and subsequently engaged in a program of confiscating arms, up to and it has been argued leading to the Revolution. They clearly did not intend the amendment to be interpreted as allowing a ban on gun ownership for reasons *other* than rebellion against an oppressive state.

Before deciding between two positions, we need two competing (mutually exclusive) claims. Supposing that I were to decide that the second amendment is “about” the need for a militia, I can still say “The Second Amendment is about the need for a strong militia, and it says that the right of the people to keep and bear arms shall not be infringed”. (Historically speaking, it would not be a correct interpretation of the understanding of rights, in that era, to say that the need for a militia creates the right to bear arms. That is a modern state-boon view of the origin of rights, not held by the Founders or Framers).

As for the referent of “arms”, it’s interesting to note that few people believe that the First Amendment only protects the right to stand on a box in public and shout your beliefs without amplification, or to distribute material printed using hand-cranked screw presses. Technology has expanded our understanding of “speech” and “press” to encompass PA systems, radio, television, the interwebs, steam-driven and even electrical presses, and so on. There is a lamentable freezing in time of cognition, practiced by various Originalists, which focuses on the things themselves represented by words, rather than the underlying concepts.

There is no possible linguistic argument that will decide whether a given piece of law should be interpreted in terms of what it says, versus in terms of its intent. That is really a matter of legal and moral philosophy. For a brief overview of that, I recommend Fuller's "8 ways" essay
http://www.kathrynpieplow.pwrfaculty.org/wp-content/uploads/2011/01/Fuller.pdf



Offline Daniel

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Re: second amendment
« Reply #4 on: August 03, 2016, 08:53:59 AM »
Quote
My point about cakes and teddy bears is that in order to understand the meaning of a linguistic structure, one should construct analogous sentences that involve things that don’t entail a particular political ideology, ... “Tasty cakes being a pleasure to eat, the right of individuals to purchase and bake with flour shall not be infringed”. ... we can see that the structure “X being necessary to Y, the right to Q shall not be infringed” boils down to “The right to Q shall not be infringed”, and not “The right to Q shall not be infringed in case Y is involved for the the purpose of X, and otherwise can be freely infringed”.
I knew what you were suggesting, but it was hard to imagine the exact sentences you had in mind. And the problem is that I don't agree with your interpretations here. My arguments above still apply to these sentences. That sentence seems to be about cakes, and it also does not seem to necessarily be more general than about making cakes. If cakes were made illegal (perhaps for health reasons) then this statement does not seem to necessarily still apply to things like baking bread. More generally, it seems to be a sort of thinking-out-loud reasoning about the motives for writing the sentence. So as you say below, it's about why. And that why is because of cakes.

Quote
Rather than asking what a statement is about, it is more informative to ask why a particular statement was made.
I agree with this on some level, but that's not, as far as I understand it, how the law works. We don't interpret the constitution based on intent (in the broadest sense) but based on what it actually says. We can interpret it strictly (literally) or more loosely (based somewhat on intent) but either way it's based on the words rather than the context and motives. For example, having horses or having cell phones would also be useful for a rebellion, but there is no indication that those are protected by (that part of) the constitution. Further, the idea that the people should be able to rebel is a complicated one, because that also means that any group that wants to cause trouble for others can too (like gangs, or [modern] self-proclaimed militias, etc.). And the rebellion here is in the context of an organized force (a resistance movement), rather than individual rights to arms for individual purposes. So on the one hand, it's saying that if the people have a large movement to resist the government they should be allowed to do that. But it's not saying that your average farmer should be able to own a gun for individual purposes, nor that the average citizen should be able to own missiles just in case they want to take over Washington D.C.

Quote
As for the referent of “arms”, it’s interesting to note that few people believe that the First Amendment only protects the right to stand on a box in public and shout your beliefs without amplification, or to distribute material printed using hand-cranked screw presses. Technology has expanded our understanding of “speech” and “press” to encompass PA systems, radio, television, the interwebs, steam-driven and even electrical presses, and so on.
That seems completely different to me. First, according to the linguists' brief, "bear arms" is a set phrase, with no reference to "arms" per se. Second, "speech" is a general social category, while "arms" is inherently technological. If more powerful "press" were invented, for example some kind of technology that would allow advertisers to project advertisements that follow citizens around and project information into their retinas, I think that technology would be banned. But the content of the speech itself would be allowed, because of what is protected in the constitution. Likewise, the right to bear some kind of arms is protected (whatever that means), but not all kinds of arms, and it seems potentially specific to what is relevant to a militia. Yes, we could say "speech" is different now, and so is "arms", but there are some important differences between the two. More parallel would be "press and other speech transmission technology", or "the right to resist the government". One is about behavior (speech, resistance) and the other is about technology (printing press+, arms).


Quote
Before deciding between two positions, we need two competing (mutually exclusive) claims. Supposing that I were to decide that the second amendment is “about” the need for a militia, I can still say “The Second Amendment is about the need for a strong militia, and it says that the right of the people to keep and bear arms shall not be infringed”. (Historically speaking, it would not be a correct interpretation of the understanding of rights, in that era, to say that the need for a militia creates the right to bear arms. That is a modern state-boon view of the origin of rights, not held by the Founders or Framers).
Ok, and the other position? You've only listed one here.

In terms of an interpretation like you give, however, there is still no argument for things like concealed or open carry of firearms. It says we can keep weapons (in case we need them), and that we can "bear arms" (in the context of fighting a war). It does not say that we can use them for hunting, nor for self defense (outside a war), nor that we can take them around with us on normal days.


Quote
There is no possible linguistic argument that will decide whether a given piece of law should be interpreted in terms of what it says, versus in terms of its intent. That is really a matter of legal and moral philosophy.
With that, I have to agree. Linguists can clarify some of the details, but then it's still a matter of making (inherently politically loaded) decisions about the content.
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Offline LongLiveRock

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Re: second amendment
« Reply #5 on: December 05, 2016, 02:25:47 PM »
A little late for this, but in my opinion:

The actual text implies that it doesn't constrict to only military service. It says the reason for the amendment is that a militia is necessary. However, it doesn't go both ways. It justifies the right to keep and bear arms not for militias, but because of militias.

I happen to be a pro-gun control liberal, so I'm not exhausting this for political purposes.