Since the last post on the commas of the 2nd Amendment I’ve had two comments from a scholar of Latin and Greek. You can read them at the end of the last post in the series or you can wait until the next post in which I will quote both as we finish our examination of the grammar of the amendment.
Today, however, the first brief in the D.C. gun control case will be filed in the Supreme Court. Here is a copy. I will summarize it for those of you without the time or inclination to read it. You’ll have to skip to page 27 (p- 46 of the PDF version) to find the first reference to a comma. I’ll begin my summary of the brief with that portion. Today’s filing is the brief on behalf of the District of Columbia. The District wants the Supreme Court to reverse the decision of the court of appeals which would have the effect of sustaining the constitutionality of the District’s handgun ordinance.
We’ll start with the commas. According to the District’s brief, the first version of the Amendment, drafted by Madison and submitted to the Virginia ratifying convention, read as follows:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.
Forget the last clause, the conscientious objector provision; it did not make into the Constitution. Instead focus on the semi-colon after the first clause and the first clause itself. You’ll note that the final version transposed the first and second clause of the amendment and changed the semi-colon to the first of the three commas. Here is what the District has to say in its brief about that:
A select House committee meeting in executive session transposed the first two clauses, making the reference to a “well regulated Militia” more prominent, and substituted a comma for the semi-colon, underscoring the connection between the two clauses. Id. at 170. The new structure and punctuation reflected the fact that the need to protect the right followed from the need for the militias.
“Whoa,” say the grammarians — and the majority of the court of appeals — “they just blew by that comma. I thought commas separated independent clauses. Doesn’t substituting a comma for a semi-colon underscore the independence of the two clauses, not their connection?”
I imagine we’ll be hearing from the other side about that.
But the District’s discussion of the first clause and the commas occurs in the context of its basic argument which is that the amendment deals only with military matters. The District argues that the subject of the clause is “the militia” and the object is “the security of a free state.” In other words, the amendment protects the possession and use of guns only while serving in an organized militia. This is about the military, not civilians. According to the District:
The first clause—“[a] well regulated Militia, being necessary to the security of a free State”—speaks only of militias, with not a hint about private uses of fire-arms. A well-regulated militia is the antithesis of an unconnected group of individuals, each choosing unilaterally whether to own a firearm, what kind to own, and for what purposes.
The second clause—“the right of the people to keep and bear Arms, shall not be infringed”—equally ad-dresses the possession and use of weapons in connection with militia service. In 1791, “Arms” and “bear Arms” were military terms describing the use of weapons in the common defense, and the word “keep” was used in connection with militiamen’s possession of the arms necessary for militia service.
Taken together, the two clauses permit only a militia-related reading. To conclude that the Framers in-tended to protect private uses of weapons, the major-ity below read the entire first clause to be extraneous and the second to be in tension with the natural, military meaning of “bear Arms.” If that had been the Framers’ intent, they would have omitted the first clause and used non-military language in the second.
Not a word about the “ablative absolute” of Latin.
The District makes two other arguments in its brief, both of which would allow the Supreme Court to duck the fundamental constitutional issue of whether the 2nd Amendment protects an individual’s right to own guns. As I’ll point out in the next installment of this series, reasons exist for the Court to do just that.
First, the District argues that the 2nd Amendment does not apply within the boundaries of the District of Colombia. The purpose of the entire Bill of Rights was to constrain the federal government from impinging on the rights of states and individuals but the district is a federal-enclave. Because the District’s legislation has no effect outside the boundaries of the District, the ordnance does not implicate the 2nd Amendment. (Congress is vested with plenary power over the District in Article I, Section 8 of the Constitution.)
Finally the District argues that even if the amendment provides an individual right to own guns and even if the amendment applies in the District, the ordnance still passes constitutional muster because it is a reasonable regulation of that right.
According to a long line of Supreme Court decisions, our constitutional rights are always subject to reasonable limitation. Justice Holmes’s aphorism that the First Amendment’s right of free speech does not extend to shouting “Fire!” in a crowded theater is an example. The District argues that banning handguns, requiring registration and trigger-locks is just such a reasonable limitation.
The District’s brief is the first in what I am sure will be a series of fine briefs. Responsive briefs are due in early February and I will return to discuss them. While we wait, we’ll finish off the commas.
I see that the Washington Post editorialized about the addition of Walter Dellinger to the District’s lawyers today. You can read that here.