On Thursday the U.S. Supreme Court, voting 5-4, threw out the Washington, D.C. ban on handguns because, in its view, the Second Amendment gives every American the right to own a gun.
The Second Amendment states,
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.
Writing the majority opinion, Justice Antonin Scalia agreed with a linguistic analysis that the Amendment’s prefatory first clause – stressing the importance of a well-regulated militia -- gives the reason for its operative second clause (3). But wait, said Justice Scalia, there’s more.
True, Scalia writes, according to the amendment Americans have the right to keep and bear arms – specifically, guns – so they can serve in the militia (in the 18th century, militiamen [always men] were expected to show up with their own guns, a practice that is frowned on by the military today). But, he adds, Americans also need those guns to exercise their longstanding Common Law right to kill one another in self defense, and to bear arms against animals as well as paper targets at firing ranges. Scalia fails to explain why English Common law, one basis of American Constitutional Law, permits the British to enact strict gun control on their side of the pond.
The linguists’ amicus brief in the Heller case read the Second Amendment in the context of eighteenth-century English grammar and lexicography to show what it meant to the framers, and what it still means today. The majority disagreed with several of our findings. The minority found our analysis more convincing.
Always ready to insult those who disagree with his interpretations, J. Scalia called the linguistic analyses supporting the D.C. law “unknown this side of the looking glass (except, apparently, in some courses on Linguistics)” and “worthy of the mad hatter” (16).
However, the justice’s explanations of what something means aren’t always convincing. The Boston Herald was skeptical when J. Scalia explained that the gesture he used in 2006 to demonstrate his opinion of his critics, captured by the Herald photo shown above, is not obscene, just Sicilian, and that anyway, he’s American, not Italian. Since cameras aren’t allowed in the Supreme Court, it’s not clear whether Justice Scalia accompanied his written opinion in the case of Washington, D.C. v. Heller with a similarly graphic gesture.
Justice John Paul Stevens and the three other dissenting justices weren’t convinced by Scalia’s explication of the Second Amendment, either. In his dissent, J. Stevens complains that Scalia’s parsing of the amendment is “overwrought and novel” (17).
Looking at the same 27 words of the amendment, Stevens comes up with a linguistic analysis that is the polar opposite of Scalia’s: “When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia” (16).
According to Stevens, the text of the Second Amendment covers only the right to keep and bear arms for military purposes. It doesn’t permit, or even discuss, gun ownership for hunting, personal self-defense, or committing crimes, even though guns are frequently used for these and other purposes (1).
Although J. Scalia equates linguists with mad hatters living on the other side of the looking glass, what goes on in linguistics courses actually illuminates how language works. No Supreme Court ruling can change that.
The majority and minority opinions in Heller show that two groups of highly-educated people can look at the same text and come to opposite conclusions about its meaning. Former acting Solicitor General Walter Dellinger, who argued the Heller case for Washington, D.C., noted in a conference call after the decision that the justices apparently found no middle ground, no basis for compromise, as they decided this case. That, and the closeness of the vote, suggest that the Second Amendment remains ambiguous both among justices of the Supreme Court, and beyond the Beltway as well.
But despite the closeness of the vote, one interpretation of the problematic text becomes law, the other becomes a legal footnote. And that, in turn, suggests something else that students learn in linguistics courses: although both sides in Heller insist that they are reading the Second Amendment as it's meant to be read, words don’t make meaning, people do.
As Eddie Izzard put it, “the National Rifle Association says that, ‘Guns don't kill people, people do,’ but I think the gun helps.” On the other hand, as the NRA also tells us, it’s people, not their writing instruments, who both make meaning and misspell words. And that’s why the framers of the Constitution had the foresight to give us all spell checkers, and linguists routinely caution us not to put too much faith in the thesaurus that comes with our word processors.
