In the last two lectures, my colleague, Don Hornstein from the law school, talked to you about the laws concerning battery in the United States. Now, those laws use the concept of consent. And one of the things that philosophers like me try to do is to figure out what consent amounts to, what it is to consent to something. In the case of battery, consent to a touching. So one of the skills involved in understanding the law is understanding the concepts used in it, concepts like the concept of consent. But every piece of legislation that you look at involves loads of concepts, like the concept of consent, that require significant work in order to understand. We can see that if we try to carefully read through one very famous piece of American legal language. This is the Second Amendment to the United States Constitution from the Bill of Rights. And it 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. Now, you might think well, that's a completely straightforward law. What could possibly be in question? Let's think for a moment about the concept of arms. What does the amendment mean when it talks about keeping and bearing arms? What arms? Any arms? Nuclear arms? Does the amendment guarantee the right of the people to keep and bear nuclear arms? Well, you might think no, that's ridiculous. No one foresaw, no one certainly in the 1780s foresaw that there would be nuclear arms, arms that could wipe out whole cities and states just by a single lunatic detonating them, no one foresaw that. And so when they said the right of the people to keep and bear arms shall not be infringed, they didn't mean the right of the people to keep and bear nuclear arms. Okay, but then what arms were they talking about? Were they just talking about the arms that they saw around them at the time, that they had around them at the time, like muskets, bayonets, cannons, axes? We might think, no, of course they knew the technology was going to progress, and there would be new arms in addition to the muskets, and bayonets, and cannons, and axes that they had. But then, if the category of arms includes more than just the arms that they had at the time, but it doesn't include nuclear arms, then how should we draw the boundaries around that category? Well, we can't draw the boundaries around that category by just thinking about what the authors of the legislation had in mind, because what they had in mind, presumably, was just the arms that they had, muskets and bayonets and so forth. But we also can't draw the boundaries around the category by thinking about any and all arms, because that would include nuclear arms. So how do we draw the boundaries around that category? Well, maybe we could get some hints as to how to draw the boundaries around that category if we look at other parts of that law. So consider the phrase earlier, the right of the people to keep and bear arms. The people, which people? The authors of this amendment had slaves. Did they want to guarantee the right of their slaves to keep and bear arms? I doubt it. Did they want to guarantee the right of infants to keep and bear arms? Once again, I doubt it. Did they want to guarantee the right of psychotic lunatics to keep and bear arms? Once again, I doubt it. Now why do I doubt that they wanted to guarantee the right of these people to keep and bear arms? Well, because of what they say earlier in the amendment. They say a well regulated militia being necessary to the security of a free State. And presumably, infants, psychotic lunatics, and slaves would not be part of a well regulated militia. But then what is a well regulated militia? Are they talking about a police force that regulates domestic affairs, that maintains law and order within the state? Are they talking about a military force that maintains international law and order? When they say, it's necessary to the security of a free state, they could mean either one of those. There is security of a state from outside attacks. And there's also the security of a state from internal conflict. So if we want to understand what kind of arms they had in mind, we need to understand what kind of people they were talking about. And in order to understand what kind of people they were talking about, we need to understand what kind of militia they were talking about. And in order to understand what kind of militia they were talking about, we need to understand what kind of security they were talking about. So in reading through the second amendment, we encounter lots of questions. And in order to answer one of them we need to be able to answer others. Now, in the next couple of lectures by my colleague Heidi Kim, she'll show us that not only is the art of reading legal language a subtle and precise art, but so too is the art of reading literary language. In both cases, both when we're reading legal language and when we're reading literary language, there are all kinds of questions that come up and that we need to answer. And we can only answer them by looking at other parts of the language. I hope you enjoy Professor Kim's lectures.
