Advocate wrote:Here is an interesting piece in the NYTs, which says that A2 is really about protecting the militia.
CLAUSE AND EFFECT
By ADAM FREEDMAN
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 ) The militia of Article I § 3 sub-§ 15 and 16
are clearly selected militia, in the parlance of the time,
meaning government militia, public militia,
whereas,
private militia, the boys in the neighborhood,
were called " well regulated militia " meaning that thay were
not boisterous and did not shoot up the town;
( it also meant well drilled, and therefore competent in combat ).
Unlike the militia of Article I, the militia of the 2nd Amendment
were private, and in theory can be brought into military conflict
with the other militia ( the same as early police departments of NYC
going to war against one another in the 1840s ).
In accordance with the earlier " Federalist Papers "
the 2nd Amendment secured not only a citizen 's right to self defense
from street criminals and from wolves,
but also to remove government, if that proved to be advisable.
2 ) History records no great dissatisfaction with Article I §1O sub-§3,
against states keeping troops; there was no scandal,
no great hue and cry against that part of the Constitution.
Under the interpretation that is urged upon us by enemies of freedom
Article I §1O sub-§3, wud be repealed.
3 ) If, in fact, the purpose of the 2nd Amendment were
to protect state
governments from federal violation of their ability to have militia,
then
Y was there
NO objection on that ground
in 1957 when President Eisenhower stripped away the militia of
Arkansas' Governor Orval Faubus, and federalized it,
using it AGAINST him
or
Y was there
NO objection 5 years later
( after everyone had plenty of time to ponder it ) when the Kennedy bros.
did the same thing to did to Alabama's Governor George Wallace, in 1963 ?
Did either Governor, or either of their respective Attorneys General,
or any southern bar association, or and southern judge,
or the KKK, or
did ANYONE assert that the state governments
were protected by the Second Amendment from having their militia
stripped away from those state governments' use ?
I lived thru that, and I do not rememeber ANYONE ever
raising that argument. We all knew that the 2A protected
private citizens, not state governments.
4 ) Note that the 2A is nestled among
a long string of PERSONAL RIGHTS,
NOT rights of any state governments.
All of these rights were calculated to weaken and enfeeble government.
It is a
CONTINUUM* beginning with
no government power to stop free speech,
free press, free religion, freedom to have the means to remove government
by force ( as the authors only just finished DOING )
as well as the citizens' having means to defend themselves from bears, Indians and criminals.
This refers to both possession of guns,
and to organizing units of private militia, if such be their choice.
Some States ( like NY ) explicity put into their ratifications,
that thay had the right to withdraw, if thay saw fit.
**
The
CONTINUUM* goes on to further weaken and enfeeble government
by denying power to quater troops upon the civilian population
( to injure government financially ), to deny power for unwarranted searches and seizures,
to deny power for torture, self incrimination
and other
personal rights, not rights of governments.
*"...'liberty' is not a series of isolated points...in terms of the taking of property;
the freedom of speech, press and religion;
the RIGHT TO KEEP and BEAR ARMS;
the freedom from unreasonable searches and seizures....
It is a rational continuum which...includes a freedom from all arbitrary impositions ..."[emphasis added]
(Notice no reference to any state government militia.)
The Harlan dissent in
POE v. ULLMAN 367 US 497
adopted by the USSC in
PLANNED PARENTHOOD v. CASEY (1992) 112 S.Ct. 2791 (P. 28O5)
** 00/04/17 NY Instrument of Ratification of the Constitution
Record Group 11, The National Archives, Washington, DC
"
That the powers of government may be reassumed by the people
whensoever it shall become necessary to their happinesss ....
That the People have a right to keep and bear Arms;
that a well regulated Militia, including the body of the People
capable of bearing Arms,
is the proper, natural and safe defence of a free State;
That the Militia should not be subject to Martial Law, except in time of
War, Rebellion or Insurrection."
THEN: Be it known that We the People of the State of New York, Incorporated in
statehood under the Authority of The Constitution of the United States of America
by the New York Instrument of Ratification, thus are graced by the
full benefits and
liberties predicated under that document;
or we are made
and
held captive under Unlawful Powers to which Under God we cannot, must not,
and do not submit." [ emphasis added by David ]
Quote:Thanks David. What do you recommend for the law abiding fish?