Meanings of the Right to Bear Arms

Recurrent public massacres have stimulated new calls for gun control. While the easy availability of weapons alone does not cause such mass killings, they are certainly an ingredient of the recipe for wholesale mechanical murder.

In spite of such urgent considerations, gun control efforts have run up against the prohibitions of the Second Amendment to the US Constitution. As ratified by the States in 1791, it says that 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”.

The Supreme Court’s interpretation of the Second Amendment has severely restricted contemporary attempts at gun control. The Court’s rulings rely heavily on a portion of the Second Amendment text–“the right of the people to keep and bear arms shall not be infringed”. On its face, the Court believes, this fragment is the central, invariable meaning of the Second Amendment and justifies prohibiting most gun control.

Yet this sentence fragment does not exist in splendid isolation. Its meaning is moderated by semantic and historical context. Semantically, it is only a part of the Second Amendment text. The preceding reference to “a well regulated militia” is an anterior meaning shifter. It is not irrelevant and can not be ignored. It is an integral part of the text. It sets the tone for what comes next and affects its interpetation. Presumably, the reference to a well regulated militia, particularly after militia contributions to American victory in the Revolutionary War, was intended to modulate the meaning of the right to keep and bear arms. The semantic environment of the complete Second Amendment text thus suggests framing and limitation of  the right to bear arms–that the arms did and should  have some connection with a well regulated militia. Presumably arms that existed well outside that context–for example in the hands of terrorists, premeditating murderers, or the criminally insane–would not be covered.

The historical environment also helps shape the meaning of the right to bear arms. A concise summary occurs in http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution . Without going into the full range of complexities, it may be sufficient to note that there is no evidence of original intent to establish an unlimited right: that anybody associated with the passage of the Second Amendment intended to protect the right of deranged shooters to gun down innocent men, women, and children in public places.

The historical context also shapes the meaning of the central noun, the subject of the Second Amendment, the word “arms”. A strict construction of “arms” would have to take account of the arms in the context of the time, single shot muzzle loaders for example.

The Battle of Yorktown

external image revolutionary%20war%20pic.jpg“Google Images.” Google Images. N.p., n.d. Web. 04 Nov. 2012. <http://www.google.com/imgres?hl=en>.

From this originalist perspective, The Second Amendment could not refer to weapons that were absent at the time of its ratification–semi-automatic or assault weapons, improvised explosive devices, shoulder-launched missiles, atomic, biological, or chemical weapons, for example. These did not exist either on the ground or in the minds of the framers. They could not, therefore, have been denoted or protected by the word “arms” in the Second Amendment. The referent of “arms”  in “the right to keep and bear arms”could only be the set of weapons that existed when the Second Amendment was adopted.

The meaning of the Second Amendment lies not in an absolute reliance on an isolated fragment of its text, but in a wider context. The meaning is modified by the semantic context of the Amendment itself. The full black letter text implies that the right to bear arms should have some relevance to the place of those arms in a system of well regulated militias.

The Second Amendment’s meaning is further modified by its placement in the context of military technology of the late 18th century. It could not refer to modern weapons simply because they didn’t exist. The Second Amendment does not, therefore, deal with many 21st century weapons, nor does it limit our efforts to control  them.

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The Metaphorical Supreme Court

The Supreme Court appears in traditional legal literature as a font of dispassionate legal analysis. Yet two recent controversial decisions reveal its reliance on powerful metaphors to justify opinions.

In Citizens United v. Federal Election Commission, 558 U.S. 50 (2010), the Court held that corporations, for purposes of First Amendment free speech protection, were individuals, and that their financial expenditures were protect speech. The use of these two metaphors (corporations-are-individuals, money-is-speech) dissolved the restrictions of campaign finance laws and allowed the unlimited use of corporate funds in elections.

National Federation of Independent Business v. Sebelius, 567 US__(2012) dealt with the Patient Protection and Affordable Health Care Act. The opinions surrounding Court’s decision used metaphors to powerful effect. Justice Roberts suggested that the Congress’ constitutional power  to regulate interstate commerce permitted it to regulate economic activity but not economic inactivity–to constrain commercial actions that existed, but not to compel them if they did not. The operative metaphor here is commerce-is-action.

The opinions in the case deal extensively with the question of whether the Constitution’s interstate commerce clause would permit the Congress to require individuals to buy products other than healthcare, for example broccoli. The operative metaphor here is healthcare-is-broccoli.

A majority of 5 members of the Court (Alito, Kennedy, Roberts, Scalia, Thomas) combined these two metaphors to conclude that Congress could not compel individuals to buy healthcare. If inaction was not commerce, Congress could not compel those who had not acted to buy healthcare to buy it. If healthcare was broccoli, Congress could no more compel consumers to buy healthcare than it could force them to buy broccoli.

Everyday metaphors permeate legal analysis. They drive the legal cognition that underlies legal reasoning. They inform a rhetoric of legal rationalization. The Supreme Court, like other institutions, reflects and constructs a powerfully metaphorical law and politics.