June 28, 2008

Guest Column: On Heller

**Note--this should have been posted yesterday, but was left as a "draft" (and that's why it starts out with "Today")--EP

Today, virtually every newspaper and broadcaster across the nation has been trumpeting the news that we have a newly expressed fundamental freedom: an individual right to keep and bear arms, courtesy of the U.S. Supreme Court's decision in The District of Columbia v. Heller. If you woke up this morning breathing a bit easier and feeling a little more free, that is why. What every article and story will tell you is that the Court struck down the D.C. handgun ban. However, most stories seem to be missing two important points: the opinion was quite funny, and it went a lot further than people seem to be grasping.

Justice Scalia wrote for the majority. To read his opinion is to be transported back to grade school, listening to your teacher patiently instruct you on basic grammar. If you ever wondered what use it was to learn all those annoying rules governing punctuation, Scalia will be happy to explain how one of your basic rights rests upon the use of three commas in the Second Amendment.

The amendment reads: "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."

Throughout, the opinion, Scalia expounds on the use of those commas, the differences between prefatory and operative clauses, and even goes so far as to dissect and rearrange the Amendment as a grammar school teacher might demonstrate to his students while diagramming sentences. Remember those sentence diagrams? He then instructs us as to the differences between singular and plural, the use of verbs and their objects, modifiers, prepositions, and idiomatic usage. English teachers everywhere should be rejoicing.

In the footnotes, scattered throughout, one can imagine that Teacher Scalia has just been interrupted during lecture by a question from a student-a particularly annoying little boy who bears a strong resemblance to a miniature Justice Stevens. Scalia, like any good teacher, generally responds by patiently explaining why his pupil's assumptions are mistaken. Occasionally though, like all good teachers driven to distraction by particularly annoying students, Scalia offers a sharp rebuke, openly speculating as to whether Justice Stevens might have leapt through the looking glass to study law with the Mad Hatter. He also describes Stevens' grasp of the English language as "dead wrong," "an absurdity," and "grotesque." Judging from Scalia's remarks, by the time I got to the dissent I was expecting to find near illiterate ravings.

For example, here is a small sample of the opinion as Scalia responded to Stevens' contention that "bear arms" did not just mean "to carry weapons or armor" but "to carry weapons in a military context."
In any event, the meaning of "bear arms" that petitioners and JUSTICE STEVENS propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby "bear arms" connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving "bear Arms" its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war--an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase "keep and bear Arms" would be incoherent. The word "Arms" would have two different meanings at once: "weapons" (as the object of "keep") and (as the object of "bear") one-half of an idiom. It would be rather like saying "He filled and kicked the bucket" to mean "He filled the bucket and died." Grotesque.
He also remarks that:
A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of selfdefense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter.
In any case, Scalia manages to save the English language from being tortured and ravaged by Justice Stevens. As a result, we now have a solidly expressed individual right to keep and bear arms defined by a most amusing opinion. We have quite a bit more than that too.

Most articles are reporting that Scalia's opinion preserves gun control laws regarding schools, certain public places, and bans on automatic weapons. This is not precisely true. The opinion simply states that those items were not at issue before the Court and will therefore be presumed to be valid until specifically contested. Yet the Court just issued a very broad embrace of an individual right to keep and bear arms, especially in the interest of self defense. Moreover, it also adopted, as a standard for protected weaponry, that which is "in common use at the time." The only limit the Court articulated was to say that, "that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes."

In the dicta, Scalia acknowledged that, as standard issue for our infantry, M-16s might be protected. However, as they are not commonly used by the citizenry, they might not be protected. As he points out toward the end of the opinion, the Court only expressed a fundamental individual right to keep and bear arms. He openly invites further lawsuits to help determine just how far that right may go-much to the chagrin of the dissenting Justices who rightly see a flurry of litigation coming and the probable overturning of a good number of longstanding regulations.

This is an exciting time, the first formal expression of a right we have had for 200 years. I look forward to seeing how we develop this right. In the meantime, teachers, you now have solid evidence which to prove to your truculent students that good grammar can lead to greater freedom.

Julian Dunraven, J.D., M.P.A.

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