Over at Cato Unbound, Bob Levy (Cato), Dennis Henigan (Brady Center), and I are debating the Heller case. All three of us have new essays on the subject. My essay published today looks at the fatal flaw in the Stevens dissent: its treatment of "the" in "the right to keep and bear arms." The essay also examines which types of gun bans and gun storage laws may now be unconstitutional. Erwin Chemerinsky will weigh in next week. Thereafter, we will engage in a four-way blog discussion.
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,"
"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.
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).