Adam Freedman: The comma and the 2nd Amendment





[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.]

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....

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....




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