Blog Gets Scholarly Award:
One of my favorite blogs, Language Log, has received the Linguistic Society of America's Linguistics, Language, and the Public Award. The award, as I understand it, is basically for popularizing of scholarly work, an important task of any learned field. Past recipients have generally been book authors (including Steven Pinker), radio and television program producers, and radio commentators; I'm pleased to see that a blog has joined their august ranks.
If you're at all interested in linguistics, you should be reading Language Log; it's one of the few blogs that I read regularly.
The Linguistic Society of America should not be confused with the three individuals who filed an amicus brief in the Heller case. Dennis E. Baron (University of Illinois), Richard W. Bailey (University of Michigan), and Jeffrey P. Kaplan (San Diego State University) were the professors who filed the linguists' brief on behalf of Washington DC. Their Heller amicus brief specified that it was filed "on behalf of themselves as individuals, not as representatives of institutions, in an effort to assist the Court in understanding eighteenth century grammar and the historical meaning of the language used in the Second Amendment."
The three linguists definitely misled the Court in their examination of the historical meaning of the language. My critique of their amicus brief entitled Professional Linguists Provide Half a Loaf with no Bill of Rights Ingredients can be found
here:
It's an etymology blog by Michael Quinion, a Brit who works on the OED.
As one of the Language Log crew, I must point out that I actually posted a critique of the "linguists' brief". Linguists are not uniform in our views on what the Second Amendment means (which is a linguistic topic) or what it ought to mean (which is political).
“In 1791 formal written American English usage was not, to my knowledge, significantly different from that of Great Britain."
One of the points I emphasized in The Founders' View of the Right to Bear Arms was the distinct difference in usage of the term “militia” in Great Britain and America. Militia in Britain referred to a select militia (consisting of less than one-tenth of one percent of the population) while in America it meant the free, able-bodied men (close to twenty five percent of the free population). In America, one had to insert “select” to militia (select militia or select corps of militia) in order to signify what was normal usage of “militia” in Britain. This is the reason why, in America, the militia was often equated with the people - “the whole nation”, “the great body of the citizens”, and “the people at large” as examples from just one of Hamiltons's Federalist essays.
Another difference that compounds problems of Second Amendment discussion, especially when dealing with a legal case where extensive quotes from British sources come into play, is the American understanding of the bill of rights concept, which was significantly different than the British understanding. Something remarkably lacking in all of the various linguistic arguments contained in the Heller briefs was any attempt to search out and emphasize American bill of rights related usage as compared to everyday British usage of terms. The Second Amendment's language has a distinctly American Bill of Rights related context. It was developed directly from American state declarations of rights provisions understood as limiting the state legislatures (and this includes the well regulated militia clause).
Not one of the dictionaries relied on in the briefs, if I remember correctly, provides an American bill of rights related definition for any term. A number of those dictionaries pre-date development of American bills of rights and are actually based on British usage, not American. Webster's American dictionary appeared at least three decades after the Founding Period. A major reason why I published The Origin of the Second Amendment was to make certain that virtually all of the Founding Era sources that relate to development of the Second Amendment as part of the Bill of Rights would be available in one document collection. Such sources provide the proper American period usage of terms. They are sometimes ignored in legal debates that rely on what is largely irrelevant British usage.
Point taken. In any case, it seems to me that there can really be no question that there is an individual right, even if the Second Amendment is not its source. Suppose, for the sake of argument, that the proponents of the view that the Second Amendment protects only National Guard-like militia are correct. We still run into two facts which, on the basis of what I have read, seem to be beyond dispute: (a) the culture of the day was one in which firearms were widely owned and in which the right to possess and use firearms not only for hunting but for self defense was generally accepted; (b) the jurisprudence of the several decades immediately following the adoption of the Bill of Rights clearly took there to be an individual right. The only way to reconcile these two facts with the group reading of the Second Amendment is to assume that its authors did not make explicit the individual right because they considered it so obvious that they felt it unnecessary to do so. In other words, if the Second Amendment is not to be read as providing an individual right, that is because it is a Ninth Amendment right.
There is no doubt that the Second Amendment protects a private right to keep and use arms for legitimate purposes, the most fundamental of which is self defense. The historical evidence indicates that even the well regulated militia reference was understood as protecting arms possession and use by the people. Those state bill of rights provisions that specified the people's right to bear arms for defense as well as those that used well regulated militia language instead were understood as protecting an armed populace capable of defense. These provisions are the very source for the Second Amendment's language. The person who wrote the first of them, George Mason, also wrote the model proposed U.S. Bill of Rights that contained the first two-clause (right to bear arms + well regulated militia) version of the Second Amendment. Two ratifying conventions adopted Mason's two-clause language verbatim along with the rest of his proposed Bill of Rights. Two other ratifying conventions adopted very similar provisions that were based directly upon Mason's version as part of complete proposed bills of rights. A final historical point, Madison had to promise future support of Mason's Bill of Rights provisions in order to gain ratification by Virginia.
Many of the problems associated with understanding the Second Amendment's language stem from a widespread lack of knowledge regarding the details of its development from the state declarations of rights. Both the professional linguists' brief and that of the professional historians exacerbated this problem in the Heller case.
I'm not disputing that the Second Amendment protects an individual right, just saying that even if it didn't, there would be an individual right under the Ninth Amendment. That was a counterfactual conditional.
Bill
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