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The Meaning of "the"--

Dave Kopel argues that the use of the word "the" in "THE right to keep and bear arms" indicates that the right was pre-existing.

A similar — though significantly different — argument has been made about "THE freedom of speech" in the first amendment, that including the word "THE" indicates that the right was pre-existing.

In the first amendment context, that argument misunderstands English grammar. When an of-phrase is newly coined, it should take an article, thus

"I recognize THE freedom of taking a shower whenever I please,"

NOT

"I recognize freedom of taking a shower whenever I please."

When an of-phrase becomes so common that it is treated as a single concept, only then is it idiomatic to drop the article. Thus, today we would usually say that a case "involves freedom of religion" or "involves freedom of speech." When a few hundred years ago, these phrases were not so common that they could be thought of as single concepts, we would have said that a case "involves THE freedom of religion" or "involves THE freedom of speech."

Now Dave Kopel's 2d amendment argument is different than the standard 1st amendment argument because an of-phrase is not involved:

"THE right TO keep and bear arms."

Although he is not entirely clear, I assume Kopel means that, if the right was not pre-existing, the 2d amendment might have said:

"A right to keep and bear arms."

But IMO idiom is not as reliable a guide here as Dave considers it to be. One can certainly use "A" to introduce rights thought to be pre-existing. Kopel does so himself in the post I am responding to. Kopel writes:

If the majority is right on this point, then the Stevens dissent is plainly wrong; the Second Amendment was intended to protect A personal right to arms for self-defense.

But is it also idiomatic to use "THE" when the right is not recognized as pre-existing? Yes. Idiomatically, I might write either:

I believe that each American should have THE right to drive as fast as he wants.

OR

I believe that each American should have A right to drive as fast as he wants.

Even though my examples presume that the right does not pre-exist, I still think that I might idiomatically refer to "THE right to drive as fast as he wants" or "A right to drive as fast as he wants." If I use "THE" to refer to a non-existent right, the word indicates which right I am refering to, in this example the particular right to drive as fast as he wants. IMO, using "THE" to refer to a right may just tell us which right is referenced, not that the right is pre-existing.

BTW, the best discussion of the use of articles before "of" phrases is in Wilson Follett's Modern American Usage (the versions edited by J. Barzun).

Related Posts (on one page):

  1. The Meaning of "the"--
  2. Debate on Heller and its Implications:
BZ (mail):
Hmmm. "A" vs. "the." Question, please?

Does the existence of the right to bear arms give rise to a right NOT to bear arms? An inquiry from one of my Quaker co-counsel reads: "There is some history on debate about the constitution suggesting that the Framers did consider including an exemption from military service for men of conscience into the second amendment. These include statements by Mr. Jackson on 20 Aug. 1789, to the effect that 'No one, religiously scrupulous of bearing arms, shall be compelled to render military service, in person, upon paying an equivalent.' Annals of Congress. The Debates and Proceedings in the Congress of the United States. 'History of Congress.' 42 vols. Washington, D.C.: Gales &Seaton, 1834-1856 – 17, 20 Aug. 1789 Annals 1: 749-52, 766-67" The argument is that this is tied to religious objections to similar activities protected by the Founders, and was sufficiently understood not to have been made explicit after discussion.

If the right was sufficiently pre-existed to be "the," was not also the right NOT to bear equivalently grounded?
7.18.2008 3:03pm
starrydeceases:
It should be easy to find evidence of an alternative usage in an historical record, if such ever existed.
7.18.2008 3:11pm
cboldt (mail):
In strict formal usage, "the" requires presence of antecedent basis - some way to associate "the" thing or idea to a previous expression.
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I have [or "There is"] a car. The car is red.
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This linguistic formality of requiring an "A" to lead a "THE" is supposed to be strictly applied in the formality of drafting claims on intellectual property.
7.18.2008 3:12pm
PLR:
We have read that some of the founders believed the Bill of Rights to be unnecessary. Seems to me this theory is some objective support for that view.
7.18.2008 3:20pm
Boose:
Why do most people think Lawyers are unproductive members of society? Because there are law posts with titles like this one's. Just saying, you guys are really splitting hairs with this one.
7.18.2008 3:23pm
Crackmonkeyjr (www):
PLR:

I believe that the reason why some founders believed the Bill of Rights to be unnecessary wasn't that you had those rights regardless of whether they were in the document, but rather because the Constitution already spelled out what the federal government was allowed to do. E.g., since the Constitution did not allow the federal government to bad speech it was unnecessary to specifically state that the federal government was allowed to ban speech.

They feared that by creating a bill of rights, it would change the Constitution from being a document that grants certain powers to a document that restrains certain acts (which it arguably has). This view, however, assumes a pre-incorporation view of the Bill of Rights, since states would still be free to do just about anything.
7.18.2008 3:30pm
JBL:
The usage of articles and prepositions is sufficiently complex and subtle that I don't think it's productive to focus on their meaning without considering the rest of the sentence.

I don't think it makes much sense, for example, to argue that "the right to keep and bear arms" was preexisting based on the meaning of "the" without considering the meaning of "right". At least, I can't think of a coherent definition of "right" that throws that distinction to the article.

Though I admit this is possibly my own lack of imagination; I really can't think of a coherent definition of "collective right" either, but people do use the term.

Linguistically speaking, here's one excercise for "a" vs "the". The use of articles varies a lot from language to language. Some languages use articles more than English, some use them less or not at all. There is sufficient expertise on this blog to translate the Second Amendment into (for example) French and Russian. How would you do it, and do the various reasonable translations preserve the distinction?

NOTE: in case anybody gets the wrong idea, this is just a thought excercise. I'm not claiming that a French or Russian translation dictates US law, ok?
7.18.2008 3:36pm
andy (mail) (www):
I'm reminded of the Sixth Circuit's admonition in The Limited v. Commissioner:


Rather than conduct the above plain-language analysis, the Tax Court focused on the term “the” in the phrase “the banking business.” Reading meaning into a definite article has been rejected by at least one other circuit and it is hardly the wisest place to begin statutory interpretation. See Georgetown Univ. Hosp. v. Sullivan, 934 F.2d 1280, 1284 n.4 (D.C. Cir. 1991) (refusing to use distinctions between “the” and “an” in interpreting a statute because that approach was “overly formalistic and inconsistent with Supreme Court case law”). Nevertheless, even if the term “the” is capable of two meanings, under noscitur a sociis, only one meaning makes sense in the context of § 956(b)(2)(A).


For the pedants out there, the court goes on to construe the alternative meanings of "the" in the relevant statute. See 286 F.3d 324.
7.18.2008 3:43pm
Neal Goldfarb (mail) (www):
According to Huddleston &Pullum's A Student's Introduction to English Grammar, which is based on the Cambridge Grammar of the English Language by the same authors, the use of "the" indicates that the noun "is sufficient in the context to identify the reference."

Using "the" does not indicate that the referent of the noun is already in existence. For example: President Bush wants NASA to start preparing for the first manned flight to Mars.

Cboldt's suggestion that the referent has to have been previously mentioned in the discourse is also wrong, as is shown by my sentence about Mars and by some of the examples given by Huddleston &Pullum:
"The president of France has appointed a new prime minister."
"The only language she spoke was Tzotzil"
In none of these cases is there any "antecedent basis" of the sort that cboldt says is a necessary condition of using "the."

While I don't doubt what cboldt says about the rules of claim drafting, patent claims aren't a very good example of ordinary English.
7.18.2008 3:53pm
CJColucci:
Prof. Lawrence Solan of Brooklyn Law School, who is also a Ph.D. in linguistics, has written several books and articles highlighting the perils of -- to coin my own phrase, as far as I know -- "law office linguistics."
7.18.2008 4:17pm
JRL:
"I recognize THE freedom of taking a shower whenever I please,"

NOT

"I recognize freedom of taking a shower whenever I please."


Shouldn't that be "I recognize THE freedom FROM taking a shower whenever I please?"
7.18.2008 4:37pm
PLR:
Why do most people think Lawyers are unproductive members of society? Because there are law posts with titles like this one's. Just saying, you guys are really splitting hairs with this one.

Hmm.

Ever read a discussion about the English translations of first chapter of the Book of Genesis? Some suggest that the addition of the word "the" in front of "second day," "third day" and so forth is an incorrect translation of the ancient Hebrew.

Might have some significance, or not. Some might think it interesting, or not.
7.18.2008 4:38pm
cboldt (mail):
-- Cboldt's suggestion that the referent has to have been previously mentioned in the discourse is also wrong. --
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Wrong only that in the general sense, it isn't always applicable. See your "the president of France" (although in a historical work, this might be ambiguous, as there has been more than one president of France.
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I was referring to highly formal expression, and used the particular example of drafting of patent claims. If the first reference in a patent claim is to "the side bar," the claim will be objected to as not previously asserting the presence of a side bar. That is, if the examiner is on the ball.
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Now, that isn't an assertion that the language in the Constitution follows that same formalistic style. Only that such a style, differentiating between "a" and "the" is a known style. Your reference is a good one, "the" is appropriate when it's sufficient in the context to [unambiguously] identify the reference.
7.18.2008 4:41pm
pgepps (www):
WRT the examples above, I think it would be important to note that "the" necessarily suggests that some one thing can be and is to be understood by the noun phrase following, while "a" (like the more explicit "I believe every American should have some sort of right to drive as fast as he wants") does not necessarily suggest that.

"the" right to keep and bear arms is some known particular thing; therefore some existing usage of the term, and not prospectively meaningful coinage, is in view.
7.18.2008 4:41pm
cboldt (mail):
That is, the general rule posited was "[a need for] some way to associate 'the' thing or idea to a previous expression." I think that's merely another way of expressing "sufficient in the context to identify the reference," and certainly isn't in disagreement.
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But then again, I could be wrong. Won't be the first time.
7.18.2008 4:46pm
Tom in Seattle:
It really doesn't matter whether or not "The" or "A" is used because we can look to the extrinsic evidence to determine that the right to keep and bear arms was considered a natural right of man before the Constitution was drafted.

During the ratification debates, the anti-Federalists insisted on a bill of rights in order to prevent future generations from trampling them. The Federalists felt a bill of rights was not necessary because the rights it would protect already existed, everyone understood that at the time, and the Constitution, being an instrument of enumerated powers, would not allow the government to infringe those rights.

Luckily for us, the anti-federalists prevailed.
7.18.2008 4:47pm
cboldt (mail):
-- patent claims aren't a very good example of ordinary English. --
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Neither is the US Constitution, for that matter.
7.18.2008 4:48pm
Splunge:
Why do most people think Lawyers are unproductive members of society? Because there are law posts with titles like this one's.

We don't think they're unproductive. On the contrary, they are far too productive, busy beavers gnawing at the foundation beams of society because they like the taste, far too likely to base serious decisions about serious subjects involving the lives of real men and women on such utter sterile frivolities as supposing the existence of rigid rules about English article usage -- a laughable proposition which adds nothing to the most Byzantine ponderings of cloistered Middle Age monks on the nature of the Transubstantiation -- and from such airy axioms deriving vast theories of human behaviour (What were the Founders thinking?) or jurisprudence (Can you have a gun in your house, little man?).

It would all be just good clean fun if we could keep them confined in a zoo somewhere, where children could come and view the circus and throw peanuts to the most entertaining performers.
7.18.2008 5:37pm
one of many:
Not even a question at the time under the dominant natural rights / social contract theories, all natural rights pre-exist government, the only question is which rights are given up as part of being under a government. I suppose an argument could be made that recognition of "a right to bear arms" would be a civil right (which is apparently Madison's objection to the English right) instead of a natural right but this is moot as at the time the right was considered to be part of the right of self-defense, the ultimate natural right.
7.18.2008 5:45pm
ReaderY:
Scalia made a similar slip in Heller. He repeatedly referred to "the" militia as the group of American adults able to organize for defense, and said the type of weapons protected are the type "the" militia typically keeps and finds useful.

If the Second Amendment had referred to "a" militia being necessary, one might think one could look at other militias around the world to see what kind of weapons they might find useful, since the amendment would be protecting the ability of an indefinite militia to organize, not a specific, definite one.

But the Amendment says "a" militia, doesn't it? It seems Scalia substituted "the" for "a" to enable him to justify as textual a theory that would support banning AK-47s without having to do any elaborate analysis.
7.18.2008 7:17pm
Randy R. (mail):
This reminds me of the debate regarding Beethovan's first piano sonata. The very first note of the Sonata begins on middle C, and in some editions, there is a dot above the note, in some a dash. Usually that means that the composer wants that note clearly articulated with a very slight "punch" to it. A dot might mean a very slightly more punch than a dash.

Whole theses have been written about which one is correct, and arguments have broken out among pianists as to how exactly to play it. I asked a friend who is a composer about this, and she said that if you were to ask Beethovan, he probably would throw you out of the room for asking such a stupid question.
7.18.2008 7:48pm
alkali (mail):
The precise usage of "the" vs. "a" strikes me as something that may well vary over the course of a couple hundred years, and if you aren't a contemporary speaker of the language it might be hard to be sensitive to what the current usage actually is. It's not something I'd give a lot of weight to.
7.18.2008 8:04pm
Smokey:
'A' right to bear arms seems to imply a definable right; if you're in the militia, you have a right to bear arms.

'The' right to bear arms seems to recognize a natural right that applies to everyone.
7.18.2008 8:08pm
Tritium (mail):
Establishing common law or natural law, the use of "of" establishes it as being a pre-existing right. The word "to" is commonly used to grant a right. As I believe Article I supports this concept. (Off the top of my head.)
7.18.2008 10:01pm
J. Aldridge:
Scalia appeared to be confused over this question as well. In one instance he said the 2nd definitely recognized an existing right... but then turns around later and says there is no doubt the 2nd "confers" a right.

In Heller Scalia came across as a very confused man.
7.18.2008 10:22pm
Dave N (mail):
All these comments and not one snarky mention of a certain former University of Arkansas law professor and his quibbling over the word "is."

Oh, and RandyR, we don't often agree but I am completely with you on this one.
7.19.2008 12:31am
Tony Tutins (mail):
Taking cboldt's and Goldfarb's comments together, I would say that the idea of a right to keep and bear arms existed before the Bill of Rights was written, whether all agreed mankind possessed one or not, because the Amendment did not bother to explain what it was talking about.
7.19.2008 3:00am
Abandon:
To answer JBL's request:


There is sufficient expertise on this blog to translate the Second Amendment into (for example) French and Russian. How would you do it, and do the various reasonable translations preserve the distinction?


The Congress already provides a French version of the Bill of Rights and its amendments.

Here it goes for the 2nd:

Une milice bien organisée étant nécessaire à la sécurité d'un État libre, le droit qu'a le peuple de détenir et de porter des armes ne sera pas transgressé.

I can not tell if this is the original version. I also do not know if Jefferson (who was a fluent French-speaker) had himself translated the Constitution and its articles (I know for sure he wrote the Déclaration d'indépendance ). Other founding Fathers also would have been good enough in French to do the task.

As for the meaning, the French equivalent of "right" (droit) couldn't logically go without its article "le" (meaning "the"). You must say "le droit" Therefore, this discussion couldn't take place, would the French version be the prevailing one (which, of course, is not the case).

However, the verb avoir (to have) was added to the French version for it to make sense in: "... le droit qu'a le peuple..." which literally means "... the right the people has..." One could hardly argue this must mean, according to the French version, the given right pre-existed, but he could try and give it a shot. Also, it is my understanding that peuple has a slightly more collective meaning than its English equivalent "people" (in other words, that it is now closer to its latin roots).

Sorry that I can't be of any help with providing a Russian version though, you'll have to rely on someone else.
7.19.2008 10:39am
Abandon:
ERRATUM: I wrote "the French equivalent of "right" (droit) couldn't logically go without its article "le" (meaning "the")

It is not what I meant to say. One could write "un droit" ("a right", or "one right"), but, what I should have said, is that "...un droit qu'a le peuple de détenir et posséder..." would make no sense.
7.19.2008 10:49am