December 19, 2007

• Darwin Award 9

Posted in Darwin Awards, From The Blog-O-Sphere, Politically Speaking at 2:54 pm by Rid

Here are what readers are saying about “Clause and Effect” –To the Editor:

Adam Freedman correctly notes that the commas in the Second Amendment are of no interpretive significance, and that there is a logical relation between the amendment’s prefatory phrase and its operative clause.

But he goes astray when he assumes that “protecting militias” is the amendment’s only purpose. This conclusion is not dictated by grammar, and it is belied by the fact that “the people,” whose right to keep and bear arms is expressly protected by the amendment, includes many individuals who are not part of any militia.

Mr. Freedman also implies that I wrote a brief for the American Civil Rights Union, which I have not.

Nelson Lund

Arlington, Va., Dec. 18, 2007

The writer is a professor of law at George Mason University.

To the Editor:

The author’s diagramming of the Second Amendment to read, “Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed,” is not an unreasonable one.

But what is the next step? What did a well-regulated militia consist of in colonial times? Were its arms kept in a central storage facility under lock and key, with ammunition stored elsewhere, as we do with today’s National Guard? I hardly think so.

The rationale behind this amendment is the decentralization of power into the hands of the individual and away from the state. Having one’s own weapons and serving in the militia went hand in hand; the latter was not a prerequisite for the former.

I would challenge anyone who takes the collective-rights approach to the Second Amendment to demonstrate otherwise. Joe Ryan

Newberry, S.C., Dec. 17, 2007_____________________________________

The Article:

Op-Ed Contributor/ NYTimes

Clause and Effect

Published: December 16, 2007

LAST month, the Supreme Court agreed to consider District of Columbia v. Heller, which struck down Washington’s strict gun ordinance as a violation of the Second Amendment’s “right to keep and bear arms.”

This will be the first time in nearly 70 years that the court has considered the Second Amendment. The outcome of the case is difficult to handicap, mainly because so little is known about the justices’ views on the lethal device at the center of the controversy: the comma. That’s right, the “small crooked point,” as Richard Mulcaster described this punctuation upstart in 1582. The official version of the Second Amendment has three of the little blighters:

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.

The decision invalidating the district’s gun ban, written by Judge Laurence H. Silberman of the United States Court of Appeals for the District of Columbia Circuit, cites the second comma (the one after “state”) as proof that the Second Amendment does not merely protect the “collective” right of states to maintain their militias, but endows each citizen with an “individual” right to carry a gun, regardless of membership in the local militia.

How does a mere comma do that? According to the court, the second comma divides the amendment into two clauses: one “prefatory” and the other “operative.” On this reading, the bit about a well-regulated militia is just preliminary throat clearing; the framers don’t really get down to business until they start talking about “the right of the people … shall not be infringed.”

The circuit court’s opinion is only the latest volley in a long-simmering comma war. In a 2001 Fifth Circuit case, a group of anti-gun academics submitted an amicus curiae (friend of the court) brief arguing that the “unusual” commas of the Second Amendment support the collective rights interpretation. According to these amici, the founders’ use of commas reveals that what they really meant to say was “a well-regulated militia … shall not be infringed.”

Now that the issue is heading to the Supreme Court, the pro-gun American Civil Rights Union is firing back with its own punctuation-packing brief. Nelson Lund, a professor of law at George Mason University, argues that everything before the second comma is an “absolute phrase” and, therefore, does not modify anything in the main clause. Professor Lund states that the Second Amendment “has exactly the same meaning that it would have if the preamble had been omitted.”

Refreshing though it is to see punctuation at the center of a national debate, there could scarcely be a worse place to search for the framers’ original intent than their use of commas. 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.

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.

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). Without the distracting commas, one can focus on the grammar of the sentence. Professor Lund is correct that the clause about a well-regulated militia is “absolute,” but only in the sense that it is grammatically independent of the main clause, not that it is logically unrelated. To the contrary, absolute clauses typically provide a causal or temporal context for the main clause.

The founders — most of whom were classically educated — would have recognized this rhetorical device as the “ablative absolute” of Latin prose. To take an example from Horace likely to have been familiar to them: “Caesar, being in command of the earth, I fear neither civil war nor death by violence” (ego nec tumultum nec mori per vim metuam, tenente Caesare terras). The main clause flows logically from the absolute clause: “Because Caesar commands the earth, I fear neither civil war nor death by violence.”

Likewise, when the justices finish diagramming the Second Amendment, they should end up with something that expresses a causal link, like: “Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed.” In other words, the amendment is really about protecting militias, notwithstanding the originalist arguments to the contrary.

Advocates of both gun rights and gun control are making a tactical mistake by focusing on the commas of the Second Amendment. After all, couldn’t one just as easily obsess about the founders’ odd use of capitalization? Perhaps the next amicus brief will find the true intent of the amendment by pointing out that “militia” and “state” are capitalized in the original, whereas “people” is not.

Adam Freedman, the author of “The Party of the First Part: The Curious World of Legalese,” writes the Legal Lingo column for New York Law Journal Magazine.

1 Comment »

  1. Ellen Eggers said,

    How would you diagram the second amendment, using the “modern” phrase marker trees?


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