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From: rickw@eskimo.com
Subject: Re: Second Amendment Language
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Date: Sat, 7 Jan 1995 20:00:14 GMT
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James Unger wrote:
>        "A well regulated Militia, being necessary to the
>security of a free State, the right of the people to keep
>and bear arms, shall not be infringed."
>        
>        The normal interpretation of this is "to the extent
>that a well regulated Militia may be necessary to the
>security of a free State (and only to that extent), ..."
>Many U.S. court decisions adopt this view.

Do you have a source for this paraphrase?  I'm not disagreeing with it,
but there are many ways to interpret the absolute construction.  There is
also another disputed aspect of the interpretation--that "well-regulated"
meant "regulated by government".  The OED suggests that it could have meant
this, but there was a (now obsolete) expression "well-regulated militia"
that meant merely "well-trained" or "well-disciplined".  This is also a
favorite pro-gun interpretation, since it weakens the case for federal
control.  

>        The currently popular right-wing interpretation of this is
>"because it is a fact that a well regulated Militia is
>(always) necessary to the security of a free State, ..."

I would refrain from calling this position "right wing".  You might use
"rkba" or "pro-gun" as more neutral descriptors.  BTW, this interpretation
of the absolute construction is still consistent with the claim that the
2nd only regulates federal control of state militias.  The question is how
you interpret "Right to Keep and Bear Arms" (rkba), not the absolute
construction.  Is it a collective or an individual right?  I don't see how
you could use a purely linguistic argument to support either side of the
issue.  The 2nd was couched in very unclear language.  Was the lack of
clarity deliberate?  I think so.  (I would take the absolute construction as
an excellent example of presupposition failure, which nullifies the speech
act.  ;-)  But that is my political, not my linguistic, judgment speaking.)

>        Question:  are there on-line corpora of 18th-century
>British or American literature or legal writing that can be
>searched (with relative ease) for nominative absolutes?

I doubt that absolute constructions can be interpreted on grounds that are
purely linguistic and independent of context.  They express presup-
positions, after all.  The problem (and the strength) is that we have no
good records of why constitutional wording came out the way it did.  The
words are supposed to stand on their own.  Religious fundamentalism
probably played a role in creating the view that laws could be interpreted
on linguistic grounds alone.  The literal interpretation of
scripture...er...constitutional law.  That gives courts considerable
flexibility in how they can interpret constitutional language.

In the end, we can only be confident that the wording was chosen as a kind
of compromise between opposing factions that hoped to influence the way the
law got implemented after passage.  In this case, the Anti-Federalists
wanted to block the implementation of a standing federal army and keep
militias from being disarmed by the feds.  The Federalists wanted to appear
to concede something to the Anti-Federalists (at Madison's behest) while
conceding nothing in reality.  The wording of the 2nd was the result.  The
federal government was not allowed to disarm the volunteer state militias.
After the Civil War, control of the state militias passed over completely
to the feds.  So how do we interpret "militia"?  As pre- or post-Civil War?
Linguistics won't solve that problem.
-- 
Rick Wojcik  rickw@eskimo.com     Seattle (for locals: Bellevue), WA
             http://www.eskimo.com/~rickw/
