English Professors Bare Arms

You know you've got a humdinger of a Supreme Court case when a covey of grammarians -- "scholars who teach, write and speak about English, linguistics and the principles of grammar" -- feels the need to chime in with a "friend of the court" brief. And, indeed, the Second Amendment fight District of Columbia v. Heller is just such a case. Hear ye, hear ye, the English departments have weighed in! Their verdict: The Second Amendment bestows a "collective" not an individual right to bear arms.

"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)."

Got it? Good, because I'd be willing to bet that at some point during oral argument (not yet scheduled) someone is going to mention it, either in ridicule or in earnest. And the pro-gun-rights lawyers will have to tangle with the people who study 18th-Century language for a living.

I believe the Second Amendment, like many of the others, was drafted with mischievous and purposeful ambiguity by the "framers" to resolve contemporary problems by delaying them for decades (in the case of slavery) or even for centuries (in the case of gun rights). And why should we expect otherwise? After all, our modern-day "framers" in Congress often resort to the drafting dodge, making a mish-mash of language and leaving it to the poor judges to sort it all out. It's the oldest legislative act of cowardice in the book.

So, go professors, go professors, go professors, go. The fact that they got their act together to file a brief in this case is a landmark moment for English departments all over the world.

By Andrew Cohen |  January 13, 2008; 1:14 PM ET
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It is quite simple: militia is plural. Besides, it shouldn't be a problem regulating one.

Posted by: Michael Callahan, Bothell, WA | January 14, 2008 10:18 AM

The right to "keep military weaponry" for service in the militia. What does that mean? Surely it can't mean that you can "only" have weaponry "during" your militia service. I've got it: If we're going to call the militia out, let's keep their weapons in some central place in the town square so the British can get to it "before" we call the militia out so our troops will be defenseless. I'm not much into all the guns in our society but let's be real here. Does anyone really think that the word "keep and bear arms" means to only "keep" them under lock and key by the government? This'll be fun to watch this argument(or read the transcript).

Posted by: Bob Ferguson, Hansville, WA | January 14, 2008 11:21 AM

As I see it you are supposed to be able to keep arms as long as you belong to a "militia" that has govermental responsabilities, that is you practice how to defend the town or the country and you take the weapons home. If you use it to hunt or target practice in your back yard its ok. It doesn't mean that you can go buy weapons of mass destroction or weapons on your own that are not part of your militia obligations.

Posted by: Miguel Charris | January 14, 2008 12:20 PM

I think this obviously means that a poorly regulated militia is unconstitutional. This opens a whole new approach for those who wish to overturn the "don't ask, don't tell" policy. According to stories I have read recently in the Washington Post, the don't ask, don't tell "rule" is falling into disuse among field commanders, and the Pentagon and Congress are failing to enforce it fully. This means that this policy is poorly regulated. Since according to the Second Amendment our soldiers can only bear arms while being well regulated the current military structure is unconstitutional and therefore needs to be disbanded.

In other words this is a "get out of Iraq free" card.

Posted by: Constitionalist | January 14, 2008 12:34 PM

How many militiamen can dance on the sight of a rifle?

Posted by: DC | January 14, 2008 12:42 PM

What confuses the gun--control liberals trying to make the 2nd Amendment null and void for regular and law-abiding Americans is the Amendments wording of "A well-regulated militia being neccessary...."

When the 2nd Amendment was written, a militia was not a military arm of the government but a group(s) of citizens who banded together temporarily to fight a enemy to all. They weren't soldiers in the sense we know of today as State Militias or National Guards, who are trained, have rules and regulations, a chain of command, and are required to serve. The militias then were farmers, merchants, brewers, tailors, etc, etc who all did their own thing, listened to no one, and were accountable to no one. Once the fight was over (Lexington and Concord for instance) these citizens returned to their profession. George Washington in his writings consitered these militias a bunch of un-trained and un-reliable useless rabble, that caused more harm than good. The militias weren't organized into the National Guard and State Militias until 1916 with the National Defense Act, which made them part of the US Army.

Posted by: madhatter | January 14, 2008 01:33 PM

Some 20-odd years ago, an erstwhile business contact from Switzerland informed me that every Swiss household (not sure I believed 'every,' but 'most') keeps a rifle near the door in case they're called out to defend the country or community. Switzerland (at least at that time), it should be pointed out, had universal male military conscription.

This tradition goes back hundreds of years, and is very likely what the US Congress, with many citizens living in daily fear of attack by the British, French, Spanish, Indians, etc., and before the days of a standing army or most local police forces, had in mind.

Of course, weapons could also be freely used for hunting, county fair shooting contests, etc., but it's not likely Congress anticipated the Second Amendment to be a license for everyone to go around like Wyatt Earp, or carry concealable firearms, or deal in them (most weapons being made by local gunsmiths to the order of individual customers - Colt, Remington, Smith, and even Wesson, were not yet even glimmers in their fathers' eyes).

Isn't it, then, quite an exercise in hypocrisy for anyone claiming to be a strict constructionist, with an emphasis on original intent, to exempt this one clause only from their Constitutional philosophy? Or maybe, unlike the professors cited in the piece above, they just don't talk English good.

Posted by: Judgito | January 14, 2008 01:35 PM

Madhatter's comment is not quite correct. Post revolutionary 18th Century militias were associated with the political governors of the "States," and with the federal military -- although the association was not nearly as structured as it became following the Civil War.

Recognize also that at the time the 2d Amendment was drafted there was not as great a difference between military and "private" sidearms as there is today. Then, the major distinction was between rifled, long-barreled hunting firearms and shorter, smooth bore muskets. Now, it is between automatic and semi-automatic weapons. Gun nuts and others stuck in adolescence may note that the difference is still "rate of fire."

It appears that the primary purpose of the Second Amendment was to allow southern States an ability to raise an army quickly in the event of a slave rebellion. With apologies to Ron Pual, at the time there was no fear the emerging federal government would be a tool of a Tri-Lateral Commission led one-world-government.

Just sayin' is all.

Posted by: Boar D Laze | January 14, 2008 02:59 PM

The framers of the Constitution were certainly ambiguous at times, because they probably would not have gotten agreement otherwise, but the wording of the 2nd amendment is not really ambiguous and certainly not "mischievous". It pertains to the situation which then existed, in which citizens had weapons which they often needed for hunting and defence (or offence) against hostile Indians. These weapons were essentially the equivalent of the standard infantry weapon of the time (musket), and militias could be called up with little preparation for local quasi-military purposes. Now, hunting and conflicts with Indians are not necessary, and militias (National Guard) do not use personally-owned weapons. The amendment is simply outdated.

Posted by: skeptonomist | January 14, 2008 03:08 PM

If it's simply outdated, then simply repeal it.

If you can't repeal it... what does that tell you?

Posted by: Nony Mouse | January 14, 2008 05:04 PM

The word parsers leave out the two words that truly give the second amendment its meaning: Well Regulated...

The Militia was, in essence, everyone. It was held in contempt by regular officers (like Robert E Lee and George Gordon Meade) because it lacked discipline and training. It fell in, or to, of a pleasant Sunday to drill, a little, and usually drink a lot.

When Edmnd Kirby Smith appeared to threaten Cincinnati in 1862, it descended upon Cincinnati and drove Lew Wallace to distraction, but did little else except get the nickname "Wallace's Squirrel Hunters."

On the other hand, there were independent minded men who raised formal military units, like John Glover's Marblehead regiment, or Richard Lee's Legion, who did have the discipline, fortitude, and organization to fight well in the Revolution, and to distinguish themselves up until the civil war.

These were the Well Regulated Militias (emphasis on the plural). They were private Armies, of the kind that drove the Crown nuts before and during the French and Indian Wars. The Crown hated and feared them, and tried to make them illegal whenever possible. It was against a perceived "Well Regulated Militia" that the British moved in April, 1775. They wanted to disarm it, as they had been empowered to do by the military governor.

The founding Fathers wanted to insure that some self appointed monarch down the line didn't try that ever again. Thus the Second Amendment. To properly read it, it says that groups like the Michigan Militia have every right to exist, with all of the arms, that is individual weaponry, they need to be a militia force, PROVIDED, that they be properly regulated, perhaps by state charter, and that they meet the standards of a Well Regulated Militia. It does not specifically permit Artillery, by the way, which properly includes all crew served (I.E. machine guns, mortars, and howitzers) weapons, and probably all automatic weapons. Those would seem to be proper considerations for the body of the charter.

So, all you Second Amendment fanatics, organize, elect officers, get chartered by your state, carefully and intensively drill and train, and when your President gets us into a disastrous war and desperately needs troops, present yourselves for Federalization. Hurry, you could get to tour Mesopotamia at Federal expense.

Posted by: ceflynline | January 14, 2008 10:43 PM

The word parsers leave out the two words that truly give the second amendment its meaning: Well Regulated...

The Militia was, in essence, everyone. It was held in contempt by regular officers (like Robert E Lee and George Gordon Meade) because it lacked discipline and training. It fell in, or to, of a pleasant Sunday to drill, a little, and usually drink a lot.

When Edmnd Kirby Smith appeared to threaten Cincinnati in 1862, it descended upon Cincinnati and drove Lew Wallace to distraction, but did little else except get the nickname "Wallace's Squirrel Hunters."

On the other hand, there were independent minded men who raised formal military units, like John Glover's Marblehead regiment, or Richard Lee's Legion, who did have the discipline, fortitude, and organization to fight well in the Revolution, and to distinguish themselves up until the civil war.

These were the Well Regulated Militias (emphasis on the plural). They were private Armies, of the kind that drove the Crown nuts before and during the French and Indian Wars. The Crown hated and feared them, and tried to make them illegal whenever possible. It was against a perceived "Well Regulated Militia" that the British moved in April, 1775. They wanted to disarm it, as they had been empowered to do by the military governor.

The founding Fathers wanted to insure that some self appointed monarch down the line didn't try that ever again. Thus the Second Amendment. To properly read it, it says that groups like the Michigan Militia have every right to exist, with all of the arms, that is individual weaponry, they need to be a militia force, PROVIDED, that they be properly regulated, perhaps by state charter, and that they meet the standards of a Well Regulated Militia. It does not specifically permit Artillery, by the way, which properly includes all crew served (I.E. machine guns, mortars, and howitzers) weapons, and probably all automatic weapons. Those would seem to be proper considerations for the body of the charter.

So, all you Second Amendment fanatics, organize, elect officers, get chartered by your state, carefully and intensively drill and train, and when your President gets us into a disastrous war and desperately needs troops, present yourselves for Federalization. Hurry, you could get to tour Mesopotamia at Federal expense.

Posted by: ceflynline | January 14, 2008 10:47 PM

Get it wrong, make it long, insult your adversaries, then repeat!

Posted by: FrankTireur | January 15, 2008 03:16 AM

In 1789 (when the Bill of Rights was written) the "Militia" was the principal military force of the United States (the states - not the federal government). Each state had a militia act, which required all able-bodied, white (with a few exceptions), Christian (again with a few exceptions) men (excepting, in some cases, pacifists like Quakers and also ministers of religion) to be a member of a local militia unit, which could be called out by local authorities or by the state government to maintain order, repel Indian attacks, etc. On rare occasions, the militia could be called into federal service.

The militia was created in opposition to the idea of a standing army -- the source of all oppression to the writers of the Constitution and the Bill of Rights. (The entire United States Army was, I believe, reduced to well under 1,000 officers and men after the Revolution.)

The militia was workable enough against the Indians, but in general a failure as to warfare against regular armies. The militia did win Lexington/Concord, Bunker Hill, the Siege of Boston, and, in a way, the Cowpens in the Revolution, and were a major part of the Battle of New Orleans in the War of 1812, but otherwise they were better known for running away at the first sight to the Redcoats.

So, if we want to go back to the militia, then everyone in the militia (but nobody not in it) gets the right to bear arms.

Posted by: JohnG | January 15, 2008 09:51 AM

For all of my eighty plus years I have understood the second ammendment to mean that each state had the right ot a "well-regulated" militia. This was becaause the sovereignty of states was recognized. 200 years have passed and our population has grown to over 300 million. The kind of militia imgined at the time has scant relevance in today's world. But the Constitution is a living document and the wording can be applied to today. Individual ability to to bear arms exists by permission rather than by right according to the needs of society today.
The "well regulated" state militia has now been sent to Iraq. It was onced used to avoid the drft by our current President and is now used to replace a draft during wartime. It will be interesting, once Iraq is resolved to see whether the National Guard well regulated by the states will be allowed to continue. Hunting and skeet shooting will be as unaffected as it is under current law.

Posted by: Richard I. Learned | January 15, 2008 01:29 PM

We're only hearing from one group of three "professors" on this issue. Several other professors and historians take the contrary view. A quick google search will bring up their opposing arguments and published journal articles on same.

The same pro-control professors (whom Amdrew seems to be cheering on) would probably twist themselves in a knot trying to explain away the following phrase: "A well-educated and regulated electorate, necessary for the good self-governance of a free state, the right of the people to keep and read texts, shall not be infringed."

As for the "militia/national guard" arguments, it strains credulity to believe that the framers, who started their revolution after the British tried to confiscate the local militia arsenals at Lexington, Concord, and Williamsburg, would then turn around and grant the governing body the power to disarm the people. "The right of the people to serve in the military?" LOL that's a good one for a Bill of Rights that was intended to limit governmental powers.

Posted by: K-Romulus | January 15, 2008 01:36 PM

Evidently the proffessors didn't take the same english course i took in high school!! Idiots!!

Posted by: Charlie | January 15, 2008 05:57 PM

Dear Charlie,

If you can't spell professor and you don't know to capitalize English and I, then your take on the professors' professional opinion can't be of much use to anyone.

You may not realize that calling someone an idiot doesn't actually prove they're wrong.

If you have a well-thought out argument, make it. Otherwise, spare us the invective. Please!

Posted by: librarian | January 16, 2008 12:09 PM

Dear librarian,

I believe that the right to misspell proffessor and fail to capitalize English and I constitutionally protected. Are you anal retentive?

In any event, the Second Amendment means what _I_ mean it to mean. I mean it to mean that _any_ person, with or w/o prior criminal convictions, can own any weapon of any type that any typical person, law enforcement officer, or soldier of _any_ branch of the military can possess. No exceptions or limitations! In short, I want complete freedom wrt to weaponry possession and ownership. Only use of weapons can be restricted--i.e. you can't go around shooting people or, even worse, animals. Will the person who shot my cat through the head with a bow and arrow, leaving him to die, please step forward?

Posted by: maddog56 | January 18, 2008 01:59 AM


absent the rationale espoused in the prefatory clause, the right COULD BE infringed. That is "absolutely" silly even by 21st century educational standards.

"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"

Posted by: So we are to believe that... | January 19, 2008 08:09 PM

Hmmm...their Amicus brief will hold no water once the HISTORY professors file their brief outlining the history of the amendment as espousing an INDIVIDUAL right (very clearly). The history of the second amendment is rooted in the understanding that the right of the individual to protect his life, limb and property with violent force - if so necessary - is the most basic of rights and the most distributed form of liberty. Case closed English professors. Leave it to the historians...

Posted by: | January 28, 2008 08:40 PM

There are essentially only two clauses or
parts to the 2d amendment.
A well regulated militia,being necessary to
the security of a free state.The second
clause the professors never mentioned,and
Mr.Cohen also ignored.THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS,SHALL NOT BE INFRINGED.
MILITIA=army of the whole citizenry would ensure the security of a free state.
THE RIGHT OF THE PEOPLE=is an induvidual
right.
Now I quote part of the first amendment.
THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE.Are the founding fathers talking about the same people in the 2d amendment?
YES THEY ARE.English professors schould
do what they do best,teach english.And Mr.
Cohen does not know much about the subject
either.Gunowners are not villains.If the
lefty's dont like guns,dont have one.Just
dont force me to give up mine.


Posted by: | January 29, 2008 06:53 PM

There are essentially only two clauses or
parts to the 2d amendment.
A well regulated militia,being necessary to
the security of a free state.The second
clause the professors never mentioned,and
Mr.Cohen also ignored.THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS,SHALL NOT BE INFRINGED.
MILITIA=army of the whole citizenry would ensure the security of a free state.
THE RIGHT OF THE PEOPLE=is an induvidual
right.
Now I quote part of the first amendment.
THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE.Are the founding fathers talking about the same people in the 2d amendment?
YES THEY ARE.English professors schould
do what they do best,teach english.And Mr.
Cohen does not know much about the subject
either.Gunowners are not villains.If the
lefty's dont like guns,dont have one.Just
dont force me to give up mine.


Posted by: vap2 | January 29, 2008 06:54 PM

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