Dave Kopel argues that the use of the word "the" in "THE right to keep and bear arms" indicates that the right was pre-existing.
A similar — though significantly different — argument has been made about "THE freedom of speech" in the first amendment, that including the word "THE" indicates that the right was pre-existing.
In the first amendment context, that argument misunderstands English grammar. When an of-phrase is newly coined, it should take an article, thus
"I recognize THE freedom of taking a shower whenever I please,"
NOT
"I recognize freedom of taking a shower whenever I please."
When an of-phrase becomes so common that it is treated as a single concept, only then is it idiomatic to drop the article. Thus, today we would usually say that a case "involves freedom of religion" or "involves freedom of speech." When a few hundred years ago, these phrases were not so common that they could be thought of as single concepts, we would have said that a case "involves THE freedom of religion" or "involves THE freedom of speech."
Now Dave Kopel's 2d amendment argument is different than the standard 1st amendment argument because an of-phrase is not involved:
"THE right TO keep and bear arms."
Although he is not entirely clear, I assume Kopel means that, if the right was not pre-existing, the 2d amendment might have said:
"A right to keep and bear arms."
But IMO idiom is not as reliable a guide here as Dave considers it to be. One can certainly use "A" to introduce rights thought to be pre-existing. Kopel does so himself in the post I am responding to. Kopel writes:
If the majority is right on this point, then the Stevens dissent is plainly wrong; the Second Amendment was intended to protect A personal right to arms for self-defense.
But is it also idiomatic to use "THE" when the right is not recognized as pre-existing? Yes. Idiomatically, I might write either:
I believe that each American should have THE right to drive as fast as he wants.
OR
I believe that each American should have A right to drive as fast as he wants.
Even though my examples presume that the right does not pre-exist, I still think that I might idiomatically refer to "THE right to drive as fast as he wants" or "A right to drive as fast as he wants." If I use "THE" to refer to a non-existent right, the word indicates which right I am refering to, in this example the particular right to drive as fast as he wants. IMO, using "THE" to refer to a right may just tell us which right is referenced, not that the right is pre-existing.
BTW, the best discussion of the use of articles before "of" phrases is in Wilson Follett's Modern American Usage (the versions edited by J. Barzun).
Related Posts (on one page):
- The Meaning of "the"--
- Debate on Heller and its Implications:
Does the existence of the right to bear arms give rise to a right NOT to bear arms? An inquiry from one of my Quaker co-counsel reads: "There is some history on debate about the constitution suggesting that the Framers did consider including an exemption from military service for men of conscience into the second amendment. These include statements by Mr. Jackson on 20 Aug. 1789, to the effect that 'No one, religiously scrupulous of bearing arms, shall be compelled to render military service, in person, upon paying an equivalent.' Annals of Congress. The Debates and Proceedings in the Congress of the United States. 'History of Congress.' 42 vols. Washington, D.C.: Gales &Seaton, 1834-1856 – 17, 20 Aug. 1789 Annals 1: 749-52, 766-67" The argument is that this is tied to religious objections to similar activities protected by the Founders, and was sufficiently understood not to have been made explicit after discussion.
If the right was sufficiently pre-existed to be "the," was not also the right NOT to bear equivalently grounded?
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I have [or "There is"] a car. The car is red.
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This linguistic formality of requiring an "A" to lead a "THE" is supposed to be strictly applied in the formality of drafting claims on intellectual property.
I believe that the reason why some founders believed the Bill of Rights to be unnecessary wasn't that you had those rights regardless of whether they were in the document, but rather because the Constitution already spelled out what the federal government was allowed to do. E.g., since the Constitution did not allow the federal government to bad speech it was unnecessary to specifically state that the federal government was allowed to ban speech.
They feared that by creating a bill of rights, it would change the Constitution from being a document that grants certain powers to a document that restrains certain acts (which it arguably has). This view, however, assumes a pre-incorporation view of the Bill of Rights, since states would still be free to do just about anything.
I don't think it makes much sense, for example, to argue that "the right to keep and bear arms" was preexisting based on the meaning of "the" without considering the meaning of "right". At least, I can't think of a coherent definition of "right" that throws that distinction to the article.
Though I admit this is possibly my own lack of imagination; I really can't think of a coherent definition of "collective right" either, but people do use the term.
Linguistically speaking, here's one excercise for "a" vs "the". The use of articles varies a lot from language to language. Some languages use articles more than English, some use them less or not at all. There is sufficient expertise on this blog to translate the Second Amendment into (for example) French and Russian. How would you do it, and do the various reasonable translations preserve the distinction?
NOTE: in case anybody gets the wrong idea, this is just a thought excercise. I'm not claiming that a French or Russian translation dictates US law, ok?
For the pedants out there, the court goes on to construe the alternative meanings of "the" in the relevant statute. See 286 F.3d 324.
Using "the" does not indicate that the referent of the noun is already in existence. For example: President Bush wants NASA to start preparing for the first manned flight to Mars.
Cboldt's suggestion that the referent has to have been previously mentioned in the discourse is also wrong, as is shown by my sentence about Mars and by some of the examples given by Huddleston &Pullum:
In none of these cases is there any "antecedent basis" of the sort that cboldt says is a necessary condition of using "the."
While I don't doubt what cboldt says about the rules of claim drafting, patent claims aren't a very good example of ordinary English.
NOT
"I recognize freedom of taking a shower whenever I please."
Shouldn't that be "I recognize THE freedom FROM taking a shower whenever I please?"
Hmm.
Ever read a discussion about the English translations of first chapter of the Book of Genesis? Some suggest that the addition of the word "the" in front of "second day," "third day" and so forth is an incorrect translation of the ancient Hebrew.
Might have some significance, or not. Some might think it interesting, or not.
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Wrong only that in the general sense, it isn't always applicable. See your "the president of France" (although in a historical work, this might be ambiguous, as there has been more than one president of France.
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I was referring to highly formal expression, and used the particular example of drafting of patent claims. If the first reference in a patent claim is to "the side bar," the claim will be objected to as not previously asserting the presence of a side bar. That is, if the examiner is on the ball.
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Now, that isn't an assertion that the language in the Constitution follows that same formalistic style. Only that such a style, differentiating between "a" and "the" is a known style. Your reference is a good one, "the" is appropriate when it's sufficient in the context to [unambiguously] identify the reference.
"the" right to keep and bear arms is some known particular thing; therefore some existing usage of the term, and not prospectively meaningful coinage, is in view.
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But then again, I could be wrong. Won't be the first time.
During the ratification debates, the anti-Federalists insisted on a bill of rights in order to prevent future generations from trampling them. The Federalists felt a bill of rights was not necessary because the rights it would protect already existed, everyone understood that at the time, and the Constitution, being an instrument of enumerated powers, would not allow the government to infringe those rights.
Luckily for us, the anti-federalists prevailed.
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Neither is the US Constitution, for that matter.
We don't think they're unproductive. On the contrary, they are far too productive, busy beavers gnawing at the foundation beams of society because they like the taste, far too likely to base serious decisions about serious subjects involving the lives of real men and women on such utter sterile frivolities as supposing the existence of rigid rules about English article usage -- a laughable proposition which adds nothing to the most Byzantine ponderings of cloistered Middle Age monks on the nature of the Transubstantiation -- and from such airy axioms deriving vast theories of human behaviour (What were the Founders thinking?) or jurisprudence (Can you have a gun in your house, little man?).
It would all be just good clean fun if we could keep them confined in a zoo somewhere, where children could come and view the circus and throw peanuts to the most entertaining performers.
If the Second Amendment had referred to "a" militia being necessary, one might think one could look at other militias around the world to see what kind of weapons they might find useful, since the amendment would be protecting the ability of an indefinite militia to organize, not a specific, definite one.
But the Amendment says "a" militia, doesn't it? It seems Scalia substituted "the" for "a" to enable him to justify as textual a theory that would support banning AK-47s without having to do any elaborate analysis.
Whole theses have been written about which one is correct, and arguments have broken out among pianists as to how exactly to play it. I asked a friend who is a composer about this, and she said that if you were to ask Beethovan, he probably would throw you out of the room for asking such a stupid question.
'The' right to bear arms seems to recognize a natural right that applies to everyone.
In Heller Scalia came across as a very confused man.
Oh, and RandyR, we don't often agree but I am completely with you on this one.
The Congress already provides a French version of the Bill of Rights and its amendments.
Here it goes for the 2nd:
Une milice bien organisée étant nécessaire à la sécurité d'un État libre, le droit qu'a le peuple de détenir et de porter des armes ne sera pas transgressé.
I can not tell if this is the original version. I also do not know if Jefferson (who was a fluent French-speaker) had himself translated the Constitution and its articles (I know for sure he wrote the Déclaration d'indépendance ). Other founding Fathers also would have been good enough in French to do the task.
As for the meaning, the French equivalent of "right" (droit) couldn't logically go without its article "le" (meaning "the"). You must say "le droit" Therefore, this discussion couldn't take place, would the French version be the prevailing one (which, of course, is not the case).
However, the verb avoir (to have) was added to the French version for it to make sense in: "... le droit qu'a le peuple..." which literally means "... the right the people has..." One could hardly argue this must mean, according to the French version, the given right pre-existed, but he could try and give it a shot. Also, it is my understanding that peuple has a slightly more collective meaning than its English equivalent "people" (in other words, that it is now closer to its latin roots).
Sorry that I can't be of any help with providing a Russian version though, you'll have to rely on someone else.
It is not what I meant to say. One could write "un droit" ("a right", or "one right"), but, what I should have said, is that "...un droit qu'a le peuple de détenir et posséder..." would make no sense.
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