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This case is truly, truly disappointing! The study presented in the
amicus brief is a lovely semantic, syntactic, and historical
interpretation of the referential meaning of the Second Constitutional
Amendment. And it seems to me, from the quoted passage below, that
Scalia gravely misunderstood the study's primary semantic and
historical arguments about the idiomatic use of the phrase "bear arms":
While the denotational meaning of the phrase "bear arms" does <i>not</i>
contradict any particular use of those arms (hence the possibility of
qualifying phrases denoting various purposes), its idiomatic use
without a qualifying phrase regularly <i>connoted</i> military uses of
the arms. The arguments that Scalia raises in response to the brief
are, in short, not responsive.<br>
<br>
Yet, unfortunately, our legal system places more weight on how legal
texts get taken up as they make their way through time and
circumstances-- that is, how courts have effectively interpreted those
texts over time. Mertz (1996), for example, points out that the
linguistic ideology of textualism held by most lay people (extracting
referential meaning from texts, as we learn to do in school), is
upturned in first year law classrooms when students are socialized,
instead, to focus "upon the way in which legal texts index their
contexts of production and use" (233)-- a linguistic ideology of <i>stare
decisis</i>. Mertz continues, "Where a 'textualist' ideology regards
the text as fixed, then, the U.S. 'case law' tradition depends upon a
conception of texts as subject to changing interpretation, as
fundamentally reconstitutable through the process of
recontextualization in subsequent cases" (235).<br>
<br>
What is truly disappointing, however, is that the Supreme Court, as the
ultimate authority, has the power to overturn those precedent
interpretations and uses of the constitution, yet they did not. The
historical/semantic/syntactic arguments raised by the brief could have
buffered such a turn, if they had been properly understood. Writing
from "killadelphia", I can only hope that a future court will see the
light.<br>
<br>
Kathy<br>
<br>
<br>
Slavomír Čéplö wrote:
<blockquote
cite="mid:5ba2490d0806281404t57aa9d9w1dca7f87e3aeac63@mail.gmail.com"
type="cite">
<pre wrap="">Why guess if we can quote. Majority opinion, p. 14:
JUSTICE STEVENS points to a study by amici supposedly
showing that the phrase "bear arms" was most frequently
used in the military context. [...] Moreover, the study's collec-
tion appears to include (who knows how many times) the
idiomatic phrase "bear arms against," which is irrelevant.
The amici also dismiss examples such as " 'bear arms . . .
for the purpose of killing game' " because those uses are
"expressly qualified." Linguists' Brief 24. That
analysis is faulty. A purposive qualifying phrase that
contradicts the word or phrase it modifies is unknown this
side of the looking glass (except, apparently, in some
courses on Linguistics).
And pp. 15-16:
But if "bear arms" means, as the petitioners and the dissent think,
the carrying of arms only for military purposes, one simply
cannot add "for the purpose of killing game." The right "to
carry arms in the militia for the purpose of killing game"
is worthy of the mad hatter. Thus, these purposive quali-
fying phrases positively establish that "to bear arms" is
not limited to military use.
Scalia is a stronzo, no doubt about it. But as much as it pains me (a
100% bleeding-heart-pinko-liberal-elitist-commie-treehugger) to admit
it, there is a lot more to this decision and some of Scalia's
arguments even make sense. Especially when it comes to his
interpretation of the phrase "keep arms" (which protects the
individual right) and his reference to Muscarello v United States and
Justice Ginsburg's interpretation of the phrase "carry firearms" and
"bear arms" ("....for the purpose . . . of being armed and ready for
offensive or defensive action in a case of conflict with another
person") which do not imply the participation in a military
organization.
It could have been much easier had the Framers chosen a simpler
wording, like, say, the one in Tennesee Constitution of 1796: "That
the free men of this State have a right to keep and to bear arms for
their common defence." But, alas, they didn't. And so no matter how
much linguistic BS Justice Antonin 'Torture is not a punishment'
Scalia spouts ("no dictionary has ever adopted that definition"), as
someone who - unlike Scalia - believes in all individual rights and
opposes their curtailment by the state, I have to agree with the
spirit of that decision.
And now excuse me, I gotta go take shower. Or ten.
bulbul
On Sat, Jun 28, 2008 at 7:50 PM, Robert Lawless
<a class="moz-txt-link-rfc2396E" href="mailto:robert.lawless@wichita.edu"><robert.lawless@wichita.edu></a> wrote:
</pre>
<blockquote type="cite">
<pre wrap="">Believe it when it comes from Scalia. He is one of the worse jerks in a
government of jerks.
Ronald Kephart wrote:
</pre>
<blockquote type="cite">
<pre wrap="">On 6/28/08 1:58 AM, "Dennis Baron" <a class="moz-txt-link-rfc2396E" href="mailto:debaron@illinois.edu"><debaron@illinois.edu></a> wrote:
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"
Dennis, Did he really say this? Do we really get this little respect?
Damn! No wonder my students don't believe me when I tell them AAVE is a
perfectly normal form of language. It's so weird that when I first read your
post I thought it was satire... Then I actually looked at the brief.
As I often say: We're all doomed.
Ron
</pre>
</blockquote>
<pre wrap="">
</pre>
</blockquote>
<pre wrap=""><!---->
</pre>
</blockquote>
<br>
<pre class="moz-signature" cols="72">--
Kathryn Howard
Assistant Professor
University of Pennsylvania
Graduate School of Education
3700 Walnut Street
Philadelphia, PA 19104
(215) 573-7067
"You never step twice into the same river"
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