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Tuesday, August 30, 2016

A word substitution approach to analyzing the meaning of the 2nd amendment

A word substitution approach to analyzing the meaning of the 2nd amendment
What the 2nd amendment actually says, as opposed to what people wish it said, has long been a source of controversy. Many people debate whether the right to keep and bear arms exists only in the context of a militia. Others vociferously argue about whether ‘well-regulated’ refers to guns, rather than just to militias.

For example, when the  U.S. Court of Appeals for the D.C. Circuit ruled 2–1 in District of Columbia v.Heller a that “"the activities [the 2nd Amendment] protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia," the ruling triggered a firestorm of protest, and the landmark Supreme Court decision that affirmed their groundbreaking view was decided by a slim 5 to 4 majority.

So against this background, what does the Second Amendment of the Constitution actually say? Or, put another way,  in a plain language reading, what would a disinterested reader logically interpret it to mean?

The 2nd amendment says:
"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."

In the case of a contentious topic, it is often useful to desensitize the discussion by utilizing a word substitution approach.  So let’s substitute a few words.

Everybody likes a party, so let’s replace:
  • “well regulated Militia” with “well stocked Bar”
  • “Security of a free State” with “success of a good party”
  • “keep and bear Arms” with “purchase and carry bourbon”

When we make these substitutions,
"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."
becomes
“A well stocked bar, being necessary to the success of a good party, the right of the people to purchase and carry bourbon, shall not be infringed”

While we substituted words, the grammatical structures of the sentences are identical.

Now, let’s pretend we are back in seventh grade grammar class and and analyze the desensitized sentence:

  1. Does the adjective “well stocked” modify “bourbon” as well as “bar”?
  2. Does the “right of the people to purchase and carry bourbon” exist only in the context of a “well stocked bar?”
  3. Does the sentence imply that “ The people’s right to purchase and carry bourbon” is dependent on whether or not bars are well stocked?”

If you are sitting in seventh grade grammar class, it is pretty clear that the correct answers are “No, No & No.”

As such, we are left with a cognitive disconnect when we hear certain interpretations of the 2nd amendment and try to apply the logic to our desensitized version:

  • When someone claims that in the 2nd amendment, “well regulated” refers to “Arms” as well as “Militia,” are they implicitly suggesting that the adjective “well stocked” refers to “bourbon” as well as “bar”?

  • When someone posits that the “right of the people to keep and bear Arms” exists only in the context of a “well regulated Militia,” are they implicitly suggesting that the “right of the people to purchase and carry bourbon” exists only in the context of a “well stocked bar?”

  • When someone claims that the “right of the people to keep and bear Arms“ is dependent on the existence of (or even membership in) “a well regulated militia,” are they also saying “people’s right to purchase and carry bourbon” is dependent on whether or not bars are well stocked?”

Given that our seventh grade grammar teacher valued consistency, the answers to these rhetorical questions seems quite clear.

But then there is the so-called ‘comma’ problem. As passed by the Congress and preserved in the National Archives, the original hand-written copy of the Bill of Rights renders the second amendment as:
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.
However, as ratified by the States and authenticated by then-Secretary of State Thomas Jefferson, the second amendment reads:[30]
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.

Does the disappearing comma after”Militia” change the plain language meaning of the second amendment? Let’s look at the ‘comma problem’ using our desensitized version. Let’s say we remove the comma, i.e. substitute
“A well stocked bar being necessary to the success of a good party, the right of the people to purchase and carry bourbon, shall not be infringed”
for
“A well stocked bar, being necessary to the success of a good party, the right of the people to purchase and carry bourbon, shall not be infringed”

If we are still languishing in seventh grade grammar class, does the removal of the comma make “the right of the people to purchase and carry bourbon” more restricted, less restricted, or does it have no impact at all?

At least in grammar class, the correct answer is probably “no impact at all.”

The strength of the word substitution approach is that while each of these questions were straightforward, they were easier to answer in the context of bars and bourbon, rather than in the context of an ideologically polarizing constitutional amendment.

Of course by this point, you may be rejecting our analysis out of hand, particularly if you disagree with the Heller decision.  Since we started with the second amendment, our attempts to desensitize this discussion with word substitution may have been for naught  - your mind is made up and we simply can’t un-ring that bell.

So rather than argue the point, let’s test our approach on a random sample of 64 Americans. Thanks to SurveyMonkey, we can do this fairly easily.

The survey was structured carefully to avoid priming the respondents either way.
  • There was no mention of the 2nd amendment and no questions about political leanings.
  • We asked only basic demographic questions (gender, age, highest level of education,, zip code and native language). SurveyMonkey helpfully throws in questions about household income, region & device used at the end.
  • We started with the desensitized sentence about bars and bourbon, then substituted words to get to the 2nd amendment.

All but 2 of our 64 respondents had at least a high school degree and all but 2 were native English speakers. Aside from that, we paid little attention to the demographics of the random sample as the small sample size (limited budget=small sample size) precludes more granular analysis.

Respondents were told “Let's test your knowledge of English grammar. Here is a sample sentence: “A well stocked bar being necessary to the success of a good party, the right of the people to purchase and carry bourbon, shall not be infringed”

When asked “Does the adjective phrase ‘well-stocked’ apply to: Bar, Bourbon, both or neither,”

84% of the respondents said “Bar.”

When asked “Does the sentence imply that  “If bars are not well-stocked, people have no right to purchase or carry bourbon?”, 90% of the respondents said “No”

When asked “Does the sentence imply that “The people’s right to purchase and carry bourbon” is dependent on whether or not bars are well stocked?”, 80% of respondents said “No”

Then the survey instrument addressed the troublesome comma, saying “Let’s say we add a comma after well-stocked bar, i.e. substitute“A well stocked bar, being necessary to the success of a good party, the right of the people to purchase and carry bourbon, shall not be infringed” for “A well stocked bar being necessary to the success of a good party, the right of the people to purchase and carry bourbon, shall not be infringed”

When asked “How does the addition of the comma affect “the right of the people to purchase and carry bourbon,” 58% of respondents said it had no effect. Interestingly, respondents who thought it did have an effect were split. 25% of respondents thought the added comma made it more restrictive while 16% thought it made it less restrictive.

The survey instrument then did the word substitution, moving from bars and bourbon to the actual text of the 2nd amendment, and asking the same questions.

82% of respondents said “well regulated” applied to “militia” compared to the 84% who said “well stocked” applied to “bars”

When asked if the sentence implied that “If Militias are not well-regulated, people have no right to keep or bear arms,” 81% of respondents said “No,” compared to the 90% who said “No” when the subject was well stocked bars.

When asked whether the text of the amendment implies that “The people’s right to keep and bear Arms” is dependent on whether or not Militias are well-regulated”? 69% of respondents said “no,” compared to the 80% who said “no” when the question related to “well stocked bars”

When asked about the comma, 57% said it had no impact, compared to 58% in the context of bourbon and bars. Interestingly, the split between more and less restrictive broadened to 30% more/13% less from 25% more/16% less when the topic was bourbon and bars.

It is important to note that only 67% of respondents said yes when asked "After we do the word substitutions, are the grammatical structures of the two sentences the same?”

When respondents who said no to this question were asked which of the three word substitutions they deemed inappropriate (in that the substitution changed the structure of the sentence), 65% took exception to substituting "well stocked Bar" with "well regulated Militia" and substituting "success of a good party" with "Security of a free State." 53% took exception to substituting "purchase and carry bourbon" with "keep and bear Arms." 24-29% were uncertain as to whether each substitution was inappropriate. (Two respondents helpfully included comments in this section, specifically “Really Stupid!!!!” and “The original sentence has two separate subjects, where the subjects in the new sentence are more similar,” but we were unable to draw any inferences from either comment.)

Conclusion:
When presented with a version of the second amendment text that was desensitized via word substitution, approximately 4 out of 5 respondents opined that the right to purchase bourbon was independent of the existence of a well-stocked bar. Given the actual text of the second amendment, the percentage of respondents who inferred an individual right to “keep and bear arms” dropped by approximately 10 percentage points but was still in the 70-80% range.  Arguments that the first two clauses of the amendment were restrictive clauses, that the amendment did not confer an individual right, that ‘regulated’ referred to arms as well as militias, or that an errant comma significantly changed the meaning of the text were inconsistent with the responses received from a significant majority of the survey participants when presented with first the desensitized version and then the actual text of the 2nd amendment.

Why is this important?

The plain meaning rule is hardly revolutionary., Also known as the literal rule, it is the oldest of the three rules of statutory construction (interpreting of statutes)  traditionally applied by English courts.

That said, the plain language approach to interpreting the Constitution has its detractors.   In his 2010 commencement speech at Harvard University, left leaning Justice David Souter argued that “judges have no choice but to interpret the U.S. Constitution beyond its plain language,” deriding  what he termed the “fair reading” model of constitutional analysis as “simplistic.”

However, Souter’s examples - the Pentagon Papers and segregation, focused on resolving perceived conflicts between constitutional provisions in the former and on applying the law to an evolving interpretation of the facts in the latter.

In contrast, the debate over the 2nd Amendment has focused on what the amendment itself actually says and means.

Even plain language proponents were not always models of fidelity when seduced by a desired judicial outcome. While right-leaning Justice Scalia was generally known as an ardent proponent of textualism and originalism, many commentators would argue that his concurrence in Gonzalo v. Raich tortured the plain language of the necessary and proper clause in a way that would normally violate the eighth amendment prohibition on cruel and unusual punishment.

However like Souter’s Pentagon Papers example, Scalia in Raich either unearthed or conjured a conflict between two provisions. Unlike much of the debate over the 2nd amendment, there was no attempt to eviscerate the plain language meaning of the amendment itself.

Once we establish that the judiciary, unlike Humpty Dumpty addressing Alice, cannot alter the definition of words with impunity, but instead must generally hold to a plain language standard, we are left with the 2nd amendment that says the “right of the people to keep and bear Arms, shall not be infringed;”  

Like almost every other constitutional issue, this leaves both progressives and troglodytes only partially satisfied.
  • Progs are left with an inconvenient truth – like speech, ‘keep and bear arms’ has special status - as with every other constitutional amendment, its presence imposes a high bar on anyone who would impose limitations.
  • Trogs who argue that this special status precludes any regulation are overstating the case - like the 1st amendment right to free speech, the 2nd amendment right to keep and bear arms is not absolute.

But while neither side is satisfied,  the conflict is at least simplified and we avoid a discussion muddled by militias and other irrelevancies.

We should require background checks.