Language and the Constitution

While boxing up stuff to put in storage while the house is restored from Irene, I came across an interesting clipping.

The late James Kilpatrick, conservative columnist, commentator on the US Supreme Court, in his final years published a regular column titled "The Writer's Art." One of his final columns, "Simplify Overstuffed Sentences," printed on page 13A of the News and Observer of Saturday, August 30, 2008, shed an interesting light on the Court's 2008 decision that the Second Amendment grants an individual right to keep and bear arms. I posted a comment on that issue last January.

Kilpatrick's 2008 column takes issue with loose use of "people."

"A recent item in the Washington Post began 'Federal prosecutors charged 11 people yesterday with the theft and sale of more than 40 million credit card numbers...'
People? Eleven people? Suppose the charges are dismissed against 10 of them. What's left? One people.

"The solution to this perplexity is to reserve 'people' for lots and lots of human beings with some common bond - e.g. the dispossessed people of Darfur. The noun 'person' carries a smaller load of baggage.

"Thus the Constitution speaks of the right of 'the people' peaceably to assemble, to keep and bear arms, and to be secure in their homes. But when it gets to crime and punishment, the Constitution says that no 'person' shall be put in double jeopardy, no 'person' shall be compelled to be a witness against himself, and no 'person' shall be deprived of life, liberty or property without due process of law.

"Those old boys who wrote the Bill of Rights had a lovely feel for language. I wish our present leaders were equally blessed."

Kilpatrick didn't say so right out, but one of the leaders he might view as linguistically challenged is justice Antonin Scalia, who drafted the decision in District of Columbia Vs. Heller. In that decision Scalia concluded the "right of the people to keep and bear arms" was an individual right.

Kilpatrick would dissent.

If the authors of the Second Amendment had intended the right to be an individual right, they would have written 'persons.'