This morning, NPR's Weekend Edition aired a conversation between Ari Shapiro and Nina Totenberg, "Supreme Court to Hear Second Amendment Case", which included this Q&A:
| Ari Shapiro: | So is this as much a linguistic question as a legal one? |
| Nina Totenberg: | Well, it's partly a linguistic question, and partly a question of what the founding fathers [pause] meant. |
I guess it's possible that Ms. Totenberg meant that it's a historical question rather than a question of the interpretation of an English sentence, either in general or in its original 18th-century context. Or perhaps she believes that linguistics is only about words and phrases, and not about how people use them. But I suspect that she was just brushing the word "linguistic" aside so as to get to what she actually wanted to say.
Some earlier LL posts on related issues:
"Some linguists weigh in on D.C. v. Heller", 1/16/2008
"The right to keep and bear adjuncts", 12/17/2007
"Scalia on the meaning of meaning", 10/29/2005
"Is marriage identical or similar to itself?", 11/2/2005
"A result that no sensible person could have intended", 12/8/2005
"Once is cool, twice is queer", 11/27/2004
[Jonathan Weinberg writes:
I think you had it right (speaking as a constitutional-law teacher) with "it's possible that Ms. Totenberg meant that it's a historical question rather than a question of the interpretation of an English sentence, either in general or in its original 18th-century context." I think Totenberg understood "linguistic question" to refer to the question of what the sentence, and the words in it, mean in the abstract -- and she was answering that one crucial question here is the historical one of what the framers *in fact meant*, even if they may have chosen a way of expressing themselves that accords badly with other things we know about 18th-century English usage. In that analysis, the language they chose is probative of their intent, but not dispositive; we would also want to look, say, at other contemporary understandings about what the drafters had in mind. I'm oversimplifying the question of intent here, and the precise roles of "text" and "intent" (along with other considerations) in constitutional analysis are highly contested, but that there's a difference between the two approaches is something I'd expect to be to at the forefront of Totenberg's thinking.
Well, she went on to discuss two ways of interpreting the language of the amendment:
Did they mean 'a well-regulated militia', so you have to have a gun, and you can either have it at home, or the state can have depots in strategic places to keep the guns; or does it mean, 'look, everybody had a gun at the time of the founding of the republic, and the king tried to take them away at some point, and we need to guarantee an individual right to own a gun,' ...
... etc. As far as the history goes, I don't recall that attempted gun control was one of the complaints lodged against King George (though maybe I've forgetten that episode). Otherwise, her exegesis seems pretty linguistic to me. ]
Posted by Mark Liberman at March 16, 2008 11:18 AM