Those who know me know that one of the things I love in life are constitutional arguments. Even more so, I love constitutional T debates, semantic arguments. That being said, Adam Freedman has a fascinating article in the New York Times about the Supreme Court case being heard right now over the proper interpretation of the 2nd Amendment.
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.”
Silberman makes a very compelling argument. One worthy of a Ivy League English professor. But, and this is why I love constitutional arguments, does this argument take the context of the writers into consideration?
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.
Maybe I’m biased, but this argument seems to make the most sense to me. Obviously the authors of the constitutions would write in the manner they were taught. This seems to be particularly true considering that the authors of the constitution were writing a legal document, which would lead one to infer that they wanted to be as accurate as possible.