The second amendment is hot. It’s been hot for a long time, but it’s really hot now, with the Supreme Court agreeing to hear District of Columbia . Heller, after Judge Laurence H. Silberman struck down the D.C. gun law, holding that the right to bear arms is individual, not collective.
There has been a ton written about this, and it is certainly an issue that raises the cackles of people on either side of the fence. But one of the funniest, and most enlightening, perspectives comes from an op-ed piece in the New York Times by Adam Freedman, who writes the Legal Lingo column for the New York Law Journal magazine.
Since the right to bear arms is not holding on by a comma, Freedman points out a few grammatical issues that few of us would know about, or care to know about.
In the 18th century, punctuation marks were as common as medicinal leeches and just about as scientific. Commas and other marks evolved from a variety of symbols meant to denote pauses in speaking. For centuries, punctuation was as chaotic as individual speech patterns.
The situation was even worse in the law, where a long English tradition held that punctuation marks were not actually part of statutes (and, therefore, courts could not consider punctuation when interpreting them). Not surprisingly, lawmakers took a devil-may-care approach to punctuation. Often, the whole business of punctuation was left to the discretion of scriveners, who liked to show their chops by inserting as many varied marks as possible.
Proof that in the end, secretaries run the world. But what of a world where copy machines had yet to exist?
Another problem with trying to find meaning in the Second Amendment’s commas is that nobody is certain how many commas it is supposed to have. The version that ended up in the National Archives has three, but that may be a fluke. Legal historians note that some states ratified a two-comma version. At least one recent law journal article refers to a four-comma version.
Can you see a plurality developing on the Supreme Court based on the number of commas in the versions that the states actually ratified? You’ve got to admit, that would be a hoot, with Scalia lambasting Ginsburg because of her lack of “comma sense.”
So Freedman offers a solution to the potential comma wars that will rock the very foundation of our legal system:
The best way to make sense of the Second Amendment is to take away all the commas (which, I know, means that only outlaws will have commas).
Read the whole piece. It’s very funny, very informative and will give you a reason to enjoy the Supreme Court’s decision, no matter what it will be.
Update: Gene Volokh rips the humor from this piece by arguing that Feedman employs a non sequitur in his piece. Way to suck the fun out of everything, Eugene. If you’re going to roam the Times looking for every picky little non sequitur, then why don’t we all just put on sour pusses and eat prunes.
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The problem with the state power interpretation of the Second Amendment is that is presumes that the authors were linguistic sadists.
All they had to say was: “Congress shall make no law respecting the raising or arming of state militias.”
Since they didn’t, it is quite unreasonable to conclude that this was what they actually meant.
That would have certainly made things a lot clearer. Even so, the inclusion of “militia” language at all, if the right was personal, muddies the waters the other way.
The best answer, rather than screwing around with commas from 1789, would be to amend it to a model of clarity. The only problem then is that we, as a people, would have to decide which way we want it to go. This could start a new civil war, giving the folks with guns a decided advantage. The rest of us would have to rely on our well-regulated militias.
The author of the op-ed leaves out this important piece of info -Absolute Construction does not modify the subject of the main clause, so can not be said to place a qualification on the right.
So while it makes good sense to say that the stated rationale behind the non-infringement of the right of the people to keep and bear arms is the “miliitia purpose”, it is incorrect as a matter of grammar to treat the “militia purpose” as qualifier on the right of the people to keep and bear arms.
Comparing the right as expressed in the Second Amendment to contemporary “right to bear” provisions of the various states, we find that it is more broadly asserted than state provisions. The Second Amendment does not contain such qualifiers as “in defense of themselves and the state” or the more restrictive “for the common defense”.
lastly the right to keep and bear arms was not restricted to members of the militia in any of the early state court cases (Bliss v. KY, Nunn v. GA, or Aymette v. Tenn.)
Note that Aymette was the narrowest interpretation of the right to keep and bear arms among the early court cases. But even though that court treated “bear arms” as having an exclusively military purpose and found that the only purpose for keeping and bearing arms was “the common defense” (as per Tenn. const.), that court never the less found that the right to keep and bear arms belonged to “every” free white male, not merely those enrolled in the militia, and not merely those capable of serving in the militia.
There is an old adage that goes something like this: When the facts are on your side, argue the facts, otherwise muddy the water.
Some clarity:
-Absolute Construction does not modify the subject of the main clause.
-the Limited Individual Rights(militiamen only) model rests on assumption of a qualifier that is not in the text. There is no “who are enrolled” following “the people”.
-To the extent the water is muddied, it would naturally argue against those models which demand a precise or narrow meaning.
There is another adage that says extraordinary claims demand extraordinary proof.
If someone argues for a meaning which is more narrow than the text supports and distict from the meaning of the right to keep and bear arms as used in contemporary state constiutions, one might think that some extraordinary proof is being put forth in support of this claim. But instead all that is offered is muddy water.
What If The Second Amendment Does Apply to Everyone?
Liptak is back with
What If The Second Amendment Does Apply to Everyone?
Liptak is back with
What If The Second Amendment Does Apply to Everyone?
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