Comments on A Linguist Goes to Law School: Summary of my second amendment paper

Thanks for the comments, and sorry about the delay...

2009-05-23T13:33:51.984-04:00

Thanks for the comments, and sorry about the delayed response. I've had exams, then graduation, the bar exam and some surgery on my mind.

IfGenesCouldTalk, if I understand your objection and counterproposal correctly, I disagree. The set W is not satisfied by the set of all possible worlds, because the set of all possible worlds includes worlds not consistent with A's rights, while W excludes them.

You ask "How can we use this definition to determine if we are indeed a world consistent with this right?"

My answer is that we can't. We don't determine whether a right actually exists in our world by surveying the situation in different possible worlds. We use the law and our philosophy of natural rights to determine what our rights are. The possible worlds analysis I outlined is just a way of formally modeling the right.

So I don't see what is gained by adding the clause about A's exercising the right legitimately, and about the government refraining from interference. On the other hand, adding these clauses would wreck the semantic analysis, since the concepts of legitimacy and of government interference are not spelled out in the sentence.

A further objection to your counterproposal is that the conduct of A in the possible worlds includes the notion of legitimacy, which is itself a modal concept that would require a separate possible worlds analysis. At the very least this adds an extra layer of analysis.

Or did I misunderstand your point?

This is an intriguing post! I haven't read your e...

2009-05-03T09:51:00.000-04:00

This is an intriguing post! I haven't read your entire paper, but I'm worried that the analysis of rights as existential quantifiers isn't complete. In your definition, it appears that you're defining a set of worlds W just by referring to a single object in that set:
"A has the right to keep and bear arms" is true iff in some world w in the set W, where W is the set of worlds consistent with A's rights, A keeps arms in w and bears arms in w.
But this can't be complete. How can we use this definition to determine if we are indeed a world consistent with this right? The entire universe of possible worlds would satisfy the definition of W. So we need a universal quantifier, but the analysis should still turn out different from the analysis of "promise". Perhaps something like the following would work:

"A has the right to keep and bear arms" is true iff in all worlds w in W (where W is the set of worlds consistent with A's right, and where A attempts to exercise the right legitimately), A suffers no government interference in the exercise of the right.
I think that this definition respects the "one-right" view, as an individual merely attempting to keep arms at home is not "attempting to exercise the right" -- and so government interference is not prohibited.

Of course, all the pragmatic questions remain -- in particular, how does the government distinguish between those attempting to exercise the right in full and those merely keeping arms for self-defense or other purposes?

Interesting, but what difference does it make? Wh...

2009-03-27T13:30:00.000-04:00

Interesting, but what difference does it make? Why isn't it, at best, redundant? The right to strike can depend on unionization in a way that the right to bear arms need not depend on their being kept.

This discussion of the meaning of “keep and bear a...

2009-01-17T15:08:00.000-05:00

This discussion of the meaning of “keep and bear arms” in the Second Amendment sounds extremely academic (in the better sense of the word, of course). I find my own objection to the Court’s “individual” interpretation of that expression to be somewhat easier to follow.

It is surely preposterous to think that the framers of the amendment would have conferred a right to keep and bear arms on any individual who was not “capable of bearing arms” and who was therefore not liable for militia service.

When the Second Amendment was written, Americans who were eligible for militia service were said to be “capable of bearing arms.” That was the common language of the time.

To be considered capable of bearing arms you had meet militia qualifications, both physically and by age. If you weren’t within the age limits or if you weren’t able-bodied, you might well be able to carry a duck gun or to carry arms for self-defense, but you wouldn’t have been counted as part of that body of the people capable of bearing arms.