Posts Tagged ‘Second Amendment’

Commas and the Law, Part II – The Second Amendment

December 27, 2007

At the conclusion of our last exciting episode we learned that any purported right to own private guns depends on the “ablative absolute” Latinate grammatical construction of the 2nd Amendment. I’m sure you’ve been kept on the edge of your seats waiting for today’s exciting installment. This is almost as stirring as those old weekly black and white serials in the movie theaters where the hero is cast down into a pit of poisonous snakes at the end of the episode or the heroine is tied to railroad tracks just minutes before the west-bound is due.


But what is the ablative absolute?

From Wikipedia I learn:

In Latin grammar, the ablative absolute (Latin: ablativus absolutus) is a noun phrase cast in the ablative case. More specifically it consists of a noun or pronoun and some participle (in the case of sum [“to be”] a zero morpheme often has to be used as the past and present participle do not exist, only the future participle), all in the ablative absolute.

There. Now that we have that clear . . . .

It indicates the time, condition, or attending circumstances of an action being described in the main sentence. It takes the place of, and translates, many phrases that would require a subordinate clause in English. . . .The closest English equivalent is the nominative absolute.

Good. Now all I need is a couple of examples, please. (Are you paying attention here, Justice Scalia?)

Ovidio exule, Musae planguntur.

* Ovid having been exiled, the Muses weep. (literal)
* With Ovid having been exiled, the Muses weep.
* The Muses weep because Ovid has been exiled.

Ira calefacta, sapientia dormit.

* With anger having been kindled, wisdom sleeps.
* Wisdom sleeps because anger is kindled.

Here is one more example, this time from Adam Freedman writing in the New York Times of December 16, 2007:

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.

Perfectly clear, sir.

If we are dealing with this Latinate construction, the 2nd Amendment reads, “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.”

That means it is the right to a well-regulated militia that is being protected, not an individual’s private right to possess firearms. (There is no doubt that the Amendment provides a right to possess firearms to individuals serving in a militia. The unanswered question is whether individuals not serving in a militia also have the right.)

Will the Supreme Court rule that there is no private right to bear arms in the United States? To find out the answer, tune in to our next installment of this series: A Snowball Travels to Hell or Global Warming: Myth or Fiction?


Commas and the Law, Part I The Second Amendment

December 23, 2007


Commas are the Border collies of language. Their job is to round up all the sheep and put them where they belong — in the corral of the author’s intended meaning. Occasionally though the sheep get out. That appears to be what happened when the Founding Fathers wrote the Second Amendment to the constitution. Here is the official text — watch the commas — of the 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.

Three commas. And upon those commas hang the question of whether individual citizens of the United States have the right to keep guns in their homes.

Modern lawyers are deeply suspicious of commas. They can create ambiguity. The Founders, lawyers mostly, were not. At the time they were writing, a long tradition in Anglo-Saxon law held that punctuation marks in statutes and laws should be ignored. The Founders used commas promiscuously, inserting them in places they had no business. That third one in the Second Amendment for example. What does it think it is doing there? Or the first one?

After two centuries of abstaining, the Supreme Court may be about to tell us. In November, the Court agreed to hear a case raising this question:

Whether [a District of Columbia law barring all pistols not licensed before 1976; and requiring that all guns kept at a person’s home be unloaded, disassembled or locked up] violate[s] the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

The case goes to the Supreme Court after a D.C. resident, who has a pistol in his home and wants to keep it, won in the federal court of appeals which sits in D.C. (By a split decision, 2-1.)

That court, when it read the Amendment, ignored the entire business about the Militia. Those two judges think the Amendment reads, “The right of the people to keep and bear Arms shall not be infringed.” If that was all the Amendment said, an individual would have the right to keep whatever armaments he wished. The problem is that the first clause of the Amendment is there and so has to mean something. While lawyers could once ignore punctuation marks, never could they ignore entire clauses.

How could a court ignore the entire first clause? By deciding that the second comma is the only one that counts. That comma, according to that court, divides the sentence into a “prefatory” clause and an “operative” clause and the “operative” clause is the one that insures an individual’s right to have guns in her home. In other words, the Founders were just clearing their throats in that first clause. The dissenting judge thinks that you can’t ignore the other two commas, which results in a reading that the Amendment supports the right to a well regulated militia and confers a “collective” right to bear arms, not an individual right.

The best “punctuation” analysis of the Amendment that I have seen I don’t understand. That is because I never had a chance to take Latin. In a life full of regrets, I regret never learning to play the piano or learning Latin. Sigh. So much to do, so little time.

Anyway, a commentator who did take Latin says the Amendment is the rhetorical device of the “Ablative absolute.”

Now. Isn’t everything perfectly clear?

If it isn’t, you’ll have to stay tuned for our second post in this series: Get Your Guns — Here Come the Commas or How I learned to stop worrying and love Latin.