Guns and Commas – The Last Post (For Awhile)

The Supreme Court of the United States has made it clear: Americans unaffiliated with any militia possess a constitutional right to keep and bear arms. More than 36,000 fire-arm related deaths befall the U.S. each year. Handguns account for more than 80%. Half are suicides. Because suicide is an impulsive act, many probably would not happen if guns were not so easily available. More male teenagers die from gunshot wounds than from all other causes combined. In addition to the deaths, more than 86,000 people a year are wounded by fire-arms, again mostly by handguns. In spite of those horrific facts and for what it is worth, here is my judgment on the case: The Court got to the right political and institutional result, but for the wrong legal reason. (I would not have voted to accept the case in the first place, but the Court did.)

Guns are too much a part of our current culture in the U.S. for the Supreme Court to pronounce them illegal. Institutionally and politically, the Court trimmed its sails. Even with the best captain and crew in the world, no sailing ship can sail directly into the wind, even if it needs to.

Enough Americans are not yet fed up with the audit of gun death and destruction. An opinion of the Supreme Court outlawing handguns would do nothing to speed the day when we are sufficiently fed up and might actually slow the process.

But purely as a matter of law, especially if you are — as Justice Scalia loudly and often proclaims himself — a “textualist,” you should conclude that the words and grammar of the Second Amendment protect only a collective right to bear arms for service in a militia. Otherwise, the entire first clause and all those commas are meaningless. Only a self-deluding textualist, hell-bent on achieving the result he desired would read the first clause of the 2nd Amendment out of the Constitution.

Frankly, the Framers never thought about gun control. Back then everybody had guns and all the states had militias. It never occurred to anyone that private ownership of handguns would ever be a serious societal problem in parts of the country. Nor did it occur to them that regulating handguns might solve such a problem. Moreover, Justice Scalia notwithstanding, gun control never crossed the minds of the white male property-owners over 21 who voted to ratify the Constitution. Guns, like limited suffrage, were taken for granted. As Newton could not have imagined a regime where his formulae do not work (Quantum Mechanics), neither could those men have imagined one without private guns or one where women voted.

It is silly to answer a modern question by imagining thoughts that dead people never thought. The Framers had no intention about gun control because they never thought about it. Neither did the people who voted to ratify the Constitution.

Ironically that is why, if you accept a theory of constitutional interpretation which includes modern understandings, it is reasonable to conclude that the ambiguous text of the 2nd Amendment protects an individual right to handguns and single-shot hunting rifles. The 5-4 decision probably tracks current opinion polls faithfully. That is where our culture is at the moment.

And make no mistake, that is exactly how the majority decided this case. That is what Justice Scalia labored mightily to hide in his opinion for the Court. After all, a real textualist would never ignore three lowly commas.


This ends, for awhile anyway, the series of posts about the Second Amendment. Disappointed that the Court skipped the commas and the “ablative absolute” issue, I subside now to wait for a more literate Court.

While I complain about the Court’s sins of omission, here is Ross Guberman on the Court’s grammatical sins of commission.


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2 Responses to “Guns and Commas – The Last Post (For Awhile)”

  1. lary Says:

    The second amendment to the Constitution acknowledges the right of every man to possess the means to protect himself, his family, and his property from anyone who might threaten them. That includes government. The right to keep and bear arms must not be infringed in any way. If that right is taken away all others will follow.

    • goldenstate Says:

      Actually the Second Amendment does not acknowledge all those rights. If you don’t believe me, try pointing a gun at the next police officer (Government) who comes to your door and see what happens. What the Second Amendment clearly and without any dispute guarantees is your right to serve in your local National Guard and to have access to guns if needed for that service. In addition, according to Heller, you also have the right to have, in your home, at least as many single shot pistols and rifles that you want. The Court has not yet addressed your right to keep assault weapons, etc. Moreover, I doubt that your Second Amendment rights will be the first to go should the government attempt to take away that right. More likely, it will be your Fourth Amendment right to be secure in your private papers and communications. In fact, the Bush Administration took some of those rights away already by reading our emails and listening to our phone conversations. It is an open question whether the government will continue to erode those rights. And, have you seen what the Supreme Court has done to your right not to be physically searched lately? Vigilance in protecting our rights is less dramatic than some attempt to curtail our Second Amendment rights.

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