Guns v. Commas – The Penultimate Post

He that uses many words for explaining any subject, doth, like the cuttlefish, hide himself for the most part in his own ink. -John Ray,naturalist (1627-1705)
It is time to tackle the Supreme Court’s opinion in Heller v. D.C., the recent case in which the court held that Americans have an individual right to own at least some kinds of guns. This should be the next-to-last post about the case. (At least until some of the cases the National Rifle Association started last week wind their way through the court system.) The other posts are collected in the 2nd Amendment category at the right.

The decision was 5-4 with Justice Scalia writing for the majority. Justice Scalia is the best writer on today’s Supreme Court. He knows how to write a short, well-reasoned opinion. When he goes on for 64 pages, as he does in this case, something cuttle-fishy is afoot.

And, as I’ve warned you before, if you give Justice Scalia his premises, which he usually sets out in the first few paragraphs of his analysis, he’ll frog-march you away helplessly entwined in his logic. It’s his premises you have to watch. Often they are honestly debatable and sometimes flatly wrong.

His opinion in the Guns v. Commas case is an example. Here is how it starts.

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose.

Even Scalia knows he’s pulling the wool over our eyes:

Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose.

But we aren’t concerned with other “legal documents” and Scalia knows it. We’re concerned solely with the Constitution which does not have “prefatory clauses,” except in the Preamble.

If your premise is shaky, it’s good to muddy the waters with an impossible example as soon as possible. For instance,

Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.”

Then, after making up a provision that does not exist, run back to the unquestioned basic premise:

That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.

Talking through his hat like this makes Justice Scalia irritable and depressed, like an unwilling child dragged to a weekly piano lesson.

When that happens, he takes it out on a fellow justice. This time it’s Justice Stevens on whom he vents his frustration.

(JUSTICE STEVENS uses the same excuse for dismissing the state constitutional provisions analogous to the Second Amendment that identify private-use purposes for which the individual right can be asserted. See post, at 12.) That analysis is faulty. A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics).

Scalia spends a lot of cuttlefish ink disagreeing with the two dissents and often does it dismissively. But that enables him to gloss over other textual problems. For instance, what about the adjective “well-regulated?” Most everyone, back then and now, thought it meant a militia created and operated by a state government. But that is a troublesome understanding for Justice Scalia. So, he brushes it aside,

Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training.

Mr. Justice Scalia’s talent for deception is never as impressive as when he exercises it against unoffending, helpless dictionaries. “Regulated” does not mean “disciplined.”

A straw man to knock down is a good thing too, especially if it gets him back to his basic — and still unquestioned — premise,

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. . . . It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Eventually, he’s finished:

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.

And not a word about those three commas, which is pretty good evidence that the Framers put them there for a reason; a reason which Justice Scalia finds disagreeable.


Stanley Fish weighs in with a good point: Everybody on the Court spent their time worrying over the “intention” of the long-dead framers. (Technically, Justice Scalia worries more about the understanding of the people who voted to ratify.) My take on the case, coming this week, is related. Here is a teaser: the Framers had no intention about gun control because they never thought about it. Neither did the people who voted to ratify the Constitution.


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