Tuesday, September 23, 2008

Status update

I'm in a little over my head at law school, but I am making forward progress on my Second Amendment note. So I'll post a little bit about that.

It looks like my focus will be on one particular controversy in the DC v. Heller opinion, concerning the phrase "the right of the people to keep and bear arms". Namely, the issue of whether the fact that it's not "to keep and to bear arms" makes a meaningful difference. This is in the context of a dispute over whether the clause contemplates a single right or two.

Justice Stevens argues that the absence of "to" suggests a single right. Scalia dismisses this position as bizarre, arguing that nobody has proposed a rule that the absence of "to" in such a situation makes a difference to the meaning, and using a sentence with the noun "promise" to show that the presence or absence of "to" in such contexts makes no difference.

My paper, as I currently conceive it, takes the position that Scalia's argumentation is poor, and that the absence of "to" is in fact probative of a difference in meaning. I argue that it's not the semantics of the word "to" that makes a difference, but the syntactic structure required to accommodate the "to". And I explore the different semantics of "promise" and "right", suggesting an explanation for why the different syntactic structures end up with the same semantics in the case of "promise" but different ones in the case of "right". (I think it's the quantificational force of the modality: universal in the case of "promise", existential in the case of "right".)

[edited for typos 1/17/2009]


OTI said...

It might be hard to check, but it would be interesting to know whether this usage (ignoring a second to) was popular at the time. I would assume that the linguistic methods to really flesh out this sentence were not on the radar of the original writers of the law -we would pretty much have to shoehorn our modern interpretation back in to the constitution (as if we could understand what was intended/widely understood by the public)and then act like we got the meaning "more right"

Uri said...

Right - I think it's very unlikely that we'll find overt discussion about it at the time. In my paper I will be proposing a principle of interpretation: presume that the framers' syntax was the same as our syntax. This is motivated by practical considerations, and is justified by the facts that (a) English syntax has been pretty stable in the last 250 years, and (b) much of syntax is universal anyway.