18 December 2012

The DC Metro...and textualism?

This is one of a series of posts about Justice Antonin Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts. For similar posts, click here.

I wrote a previous blog post about the ejusdem generis canon. To recap: where general words follow an enumeration of two or more things, they apply only to persons or things of the same general class specifically mentioned.

I was riding the Metro the other day and came across an example of where we might be able to use ejusdem generis in practice:

For the sake of this example, let's focus on the last bullet. So, "[i]n any Metro Station or train it is unlawful to...Carry any animals, flammable liquids or other dangerous articles." (Sorry, no Oxford comma...)

First: what does Carry and any modify? Presumably, it modifies all of the items. In other words, It is unlawful to carry any animals, carry any flammable liquids, or carry any other dangerous articles. It would be odd to suggest that you could bring have flammable liquids or other dangerous articles if you weren't carrying them. Even then, what does it mean to carry? If I have a (non-service) dog on a leash, am I really carrying an animal?

Animals: Without any other guidance, this would seem to mean all animals (but probably not service animals, who are already exempt). It's also a very general term in a list.

Flammable liquids: On the other hand, "flammable liquids" is a rather specific term that refers to items such as diesel, gasoline, and kerosene. The text suggests that the purpose here is to reduce the fire hazard. But what about that vegetable oil you bought at the store on the way home? It is flammable. What about lighter fluid? In a bottle? In a lighter?

Other dangerous articles: The ejusdem generis canon suggests that "other dangerous articles" should be  of the same general class specifically mentioned. But the classes specifically mentioned aren't necessarily very helpful. All animals and flammable liquids do not necessarily lend themselves to understanding what is meant by "other dangerous articles." Presumably, though, this means firearms (although it seems odd, especially in Washington, D.C., that they don't explicitly mention this), knives or other hand-held weapons. What about nunchuks? Brass knuckles? A baseball bat?

You can see here how a rather simple sounding regulation could be potentially very confusing. The Metrorail Rules and Manners page makes some reference to these rules, but does not provide clarification.
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