Guns, Grammar & Commas

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.”

It's the first time in 70 years that the High Court has decided to review the Second Amendment. The center of the new debate? A comma.

"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 that got us here - Judger Silberman of the US Court of Appeals for the District of Columbia Circuit, cited the second comma (the one after “state”) as proof that the Second Amendment protects the “collective” right of states to maintain their militias, and also endows each citizen with an “individual” right to carry a gun. Here's my favorite part: regardless of membership in the local militia.

That's a pretty powerful comma. The second comma divides the amendment into two clauses: one “prefatory” and the other “operative.” So it basically means that "the right of the people ... shall not be infringed,” is the most important part.

This is just a battle in the ongoing comma war. In a 2001 Fifth Circuit case, a group of anti-gun 'academics' [liberal pussies?] submitted an amicus curiae (friend of the court) brief arguing that the “unusual” commas of the Second Amendment supports collective rights interpretation. According to these nice pipe smoking twerps in tweed jackets, the founders’ use of commas reveals that what they really meant to say was “a well-regulated militia ... shall not be infringed.”

The Pro-gun American Civil Rights Union is 'firing' back with its own punctuation-'packing' brief. [Holy Crud, that's terrible punmanship there] 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.”

Wow. All this over a comma.

A problem with this debate is trying to find meaning in the Second Amendment’s commas - nobody's really sure how many commas it actually has. The version that ended up in the National Archives has three, but one might be a dead bug. Legal historians note that some states ratified a two-comma version. At least one recent law journal article refers to a four-comma version. And someone has a blanket with that has 18. This blanket, however, is not considered a 'real version' of the Constitution.

Let's just pretend you could take away all the commas. In that case, 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. Yeah, I cutn'dapasted that part. I can't tell you what that means.

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.”

If the Justices do a sentence diagram, like you learned in 7th grade - they might 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.” However, getting ruler paper out in the Supreme Court really seems goofy.

If this debate comes down to commas, rather than the meat of the discussion - Why not 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. Or they can say that it's spelled wrong because of the use of f's instead of lowercase 's'es all over the place?

That's Liv Tyler with the gun, btw. She's hot!

This article was stolen and reworked from an article by the obviously biased anti-gun pussy 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.