Is a familiar concept but also a page-turning pot-boiler by Thomas “just call me Tom” Bingham, which I’m in the middle of reading1. And there is much to be said upon the subject, including the need for clarity; but my attention was drawn to two clauses in his “history of” section, where he includes the USAnian Bill of Rights aka the first ten amendments to their constitution. Which are
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
the right of the people to keep and bear Arms, shall not be infringed3
The first is negative: Congress is prohibited from making laws. The second is positive: a “right” of the people is declared. The asymmetry is curious4. Is it even deliberate? The framers were, I think, attempting some literary quality; they may have felt uncomfortable about repeating themselves; but “Congress shall make no law respecting keeping and bearing Arms” would be a coherent alternative text. Would it make a difference? Perhaps; it would keep the tricky word “right” out. If you (like me) like the concept of the constitution as bounding the power of the state, then the form forbidding it to do stuff is preferrable.
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1. In the middle of, not finished, obviously. Don’t cramp my style.
2. I am, of course, interested in freedom of speech, but don’t need it for these points.
3. I’ve elided the controversial and hard-to-interpret preceding clause that is either decorative or function, according to your tastes, because it isn’t relevant here. Since the whole thing is controversial I shall offer you my own opinion: that the “right” made sense when written but doesn’t make sense with modern weaponry or society; the legal gymnastics that courts go through to try to make sense of it without too obvious inconsistency are unconvincing. Bear in mind though that this isn’t the point of this post.
4. I’m sure others must have remarked upon it; not being any scholar of such things I’m not aware of the discussion; do point me at relevant bits. The WaPo seems to me to blithely ignore the difference;