Originally posted by photoptimist
It's amusing that we are arguing about the (non)standardization of verbal communication using a case involving nonverbal communication.
Are laws against "brandishing" meant to prohibit are some specific left-right-left-right motion with a weapon. Or are they meant to prohibit a more general non-verbal communication act of displaying a weapon n some way that communicates an implied threat?
Do we need a dictionary of non-verbal communication so that everyone knows the difference between friendly and hostile displays of weaponry?
A rhetorical question, right? The simple answer is that the crime of "assault" is different from the crime of "brandishing a firearm". Oh, and by the way - the crime of assault does not involve touching. Assault is "an offer to touch", while "battery" is the result of the assault.
But that issue doesn't have much to do with the elements of a criminal offense, which do have to be defined carefully and well, so that everyone can know, not just whether or not he's being hostile, but whether he's going to be subject to punishment for his actions. In the U.S. there is a specific requirement that the average person has to be able to tell whether or not what he's doing is a crime or not. The "due process" clause of the Constitution has been interpreted to mean (et alia) that a criminal statute can be "void for vagueness", and thus unenforceable, if it is not intelligible to the average person.
Clearly what that requires, then, is that the statute express the proscribed conduct in words that have definite and clear meaning. That word, "definite" is important in particular, since the word "definition" refers to specification of meaning. "That's all just semantics!", they say, derisively. But they're right - semantics is the study of meaning. And if there is no definite (i.e., well defined) meaning, then the words are useless. If a word can mean whatever a person wants it to mean (the Humpty Dumpty principle), then it means nothing, for it fails to be a mechanism of effective communication. If a court rely upon definitions from popular sources, in which people use words without real regard to actual meaning, whether analogically or otherwise, then the average person can't possibly know what the words in a statute mean. The result of that process gets us back to Stalinist Russia, and you can be locked up because other people don't like you or what you think. It makes it easy to "get the bad guys", and even easier to characterize others as "bad guys" based on inappropriate criteria (wrong skin color, wrong religion, etc.).
I can't wait until my 1933 OED gets here. I should add a disclaimer: when I was in my first year of law school (with a bachelor's degree in history), the professor asked a question which I answered. He stood silent for a while in the middle of the room, open book in his hand, staring at me. Then he announced to the class, "Mr. Hawes is in the wrong century."