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May 8, 2002
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In a major policy reversal, the Justice Department has officially endorsed an individual right to bear arms. In doing so, the Justice Department has abandoned its long-held position that the second amendment is limited in scope to protecting militia activities. Does this mean the Justice Department will stop enforcing federal laws that it sees as violating the 2nd amendemnt? Should it? If there is a individual right to bear arms, how far should it extend?
posted by boltman (65 comments total)

 
As the AP article alludes to, the 5th Circuit's decision in United States v. Emerson (270 F.3d 203), which conflicts with other circuits' decisions, means the Supreme Court can no longer continue sidestepping any serious examination of Second Amendment jurisprudence as they've done for three quarters of a century now. There's going to be a big showdown in the next couple years, and the outcome might depend on Court vacancies and appointments.
posted by tiny pea at 1:13 AM on May 8, 2002


Ashcroft "kowtowing" to the NRA? I believe rather they are of the same mind on the Second Amendment, which, I'm sorry to say, is the high ground both grammatically and historically. Unfortunately, it doesn't work anymore, which Americans prove by dying in droves. The problem is that we were taught to believe in the Constitution itself, that somehow if we could just figure out the "framers' intent," we would be OK.

Face it, the 2nd means what Ashcroft sez, and Heston and LaPierre: ...the right of the people to keep and bear arms shall not be infringed. That's an independent clause, it stands on its own, and the stuff about a militia is in a dependent clause, it's supporting material, nothing more.

After Congress, you need a majority vote of citizens in 3/4 of states, not just 3/4 of Americans, to change the Constitution. That means 13 states would be enough to block repeal of the 2nd. Can you name 13 states with a John Wayne fetish? I can.

But there is a concept called "Compelling Governmental Interest," which is why you can't own a nuke or an ICBM or an anthrax bomb, even though the second amendment says you can.

"Compelling Governmental Interest." Has your congressman or woman heard of it?

BTW, Japan had 16 handgun deaths in '97, the last year for which I have statistics. The U.S. was over 32,000. Hunters are allowed to have shotguns and rifles here, but they must be certified in gun safety, every bullet is registered and logged, you must have guns and bullets in a locked cabinet, separate from ammo, and a map of your house with the location of the gun must be on file at the local police station, which conducts random inspections. Do you find that offensive? I like it.
posted by planetkyoto at 2:16 AM on May 8, 2002


But there is a concept called "Compelling Governmental Interest," which is why you can't own a nuke or an ICBM or an anthrax bomb, even though the second amendment says you can.

Because these aren't arms you can bear. You can't really care around bombs with you.

And we could get gun murders down to Japan levels easily if we just executed all gang members in cities. Also, the Japanese should be thanking the United States for its low gun murder numbers. I"m sure if two of their cities hadn't been nuked then lots of these people would have had gun bearing kids.

But that putting the gun and bullets in seperate places is full of garbage. You might as well completely ban guns if that law is put into affect, not even allowed to keep the gun loaded.
posted by Keen at 3:59 AM on May 8, 2002


And we could get gun murders down to Japan levels easily if we just executed all gang members in cities. Also, the Japanese should be thanking the United States for its low gun murder numbers. I"m sure if two of their cities hadn't been nuked then lots of these people would have had gun bearing kids.

If this is for real, you are an idiot, mate. And an ignorant.
posted by magullo at 4:43 AM on May 8, 2002


Ashcroft "kowtowing" to the NRA? I believe rather they are of the same mind on the Second Amendment,

Ashcroft is a NRA lifetime member.
posted by magullo at 4:46 AM on May 8, 2002


Both parts are real. Gang violence is a big problem here and not as much in other countries. Those Japanese that died might have in the future started families of gun bearing lunatics!
Now how is that ignorant?
posted by Keen at 5:07 AM on May 8, 2002


Because these aren't arms you can bear. You can't really care around bombs with you.


Sure you can. The destructive power of what one person can "bear" has been increasing nearly exponentially since those words were laid down. If you want a literal interpretation, then a suitcase nuclear device should be fine. This is part of the reason why I believe there should be an amendment here... The founding fathers could not have guessed the amount of destructive power one person would eventually wield in 2002, and the curve of increasing power and decreasing size is likely to continue. "Arms" that are bearable could very well mean a weapon of nearly unimaginable power a mere 10 years from now. (As if assault rifles weren't bad enough...)
posted by kahboom at 5:40 AM on May 8, 2002


The Justice Dept is not key. They have to get the Supreme Court to endorse a personal right-to-bear-arms. It's never been done. In fact, it's been refuted twice. These wacko decisions the Justice Dept has been handing out will simply be reversed in the next administration.
posted by fleener at 6:22 AM on May 8, 2002


"Arms" that are bearable could very well mean a weapon of nearly unimaginable power a mere 10 years from now.

One can calculate the upperlimit of destructive power of certain types of bombs. For example, a "perfect" conventional bomb would convert all of its mass to a low molecular weight gas, then the equation PV=nRT can be used to approximate the sphere of destruction acheivable by the bomb based on its weight, the reaction temperature, and the composition of the products. For a nuke the upper limit of energy release is E=mc^2. The best conventional nukes are nowhere near that limit (and never will be) because only a small fraction of the mass is converted to energy. A matter/anti matter bomb (which would convert all its mass to energy) would be required far any more quantum leaps in power/size ratio of bombs. Given the current limitations on production and storage of antimatter I think matter/antimatter bombs are a lot further off than 10yrs.
posted by plaino at 7:14 AM on May 8, 2002


According to this page, the per capita murder rate in Great Britain is 3 times higher than the rate in the US. The US seems to be in a dead head (excuse the pun) with France. England still has rules against her citizens carrying guns right?

I couldn't find any source for the stats, and I didn't feel like googling any further, but if somebody has any better information please post it. Japan does seem to be fairly crime free. I don't know you can make the leap to say it's because the citizens aren't armed. It may or may not contribute, but there are certainly other factors that must be weighed in the mix.
posted by willnot at 7:30 AM on May 8, 2002


the counter argument to the 'i should be able to own a nuclear bomb' meme that makes the most sense to me, is that a nuke cannot distinguish between innocent parties, and parties that are threatening you. hence, to use a nuke for self defense obviously violates the rights of innocent parties. a gun can [for the most part] be selectively used against those who are forcibly attempting to deprive you of your rights to life or property.

[yes, yes, i know there are plenty of gun accidents. but when properly used, a gun does have this intrinsic ability]

as a practicle matter, i find the comparison to the drug market helpful. [some] drugs are illegal. they are still available. in order to keep the availabilty to a manageable level, the govermnent has been granted extraordinary powers in violation of our rights. if we tried to outlaw guns, i see the same scenario occurring.

all our rights are important. for those that scream about violations of the 1st and 4th amendments [and i'm one of them], the principle is exactly the same. i don't like guns, and i don't own one. but i support the right to keep and bear arms.
posted by lescour at 7:35 AM on May 8, 2002


Keen, I have no idea what you're trying to say.

I"m sure if two of their cities hadn't been nuked then lots of these people would have had gun bearing kids.

That makes no sense at all. You're telling me that if Japan magically had a couple thousand (or tens of thousands) more civilians, its crime rate would explode? That defies logic.

And we could get gun murders down to Japan levels easily if we just executed all gang members in cities.

No, that's actually not true. Are you trying to tell me that gang violence in America accounts for all but 16 deaths? If America has ten children under age 19 dying each day from guns, it doesn't take a genius to see that the levels won't reach "Japan levels", even if gangs are taken out of the equation.

16 gun deaths a year would equal .04 gun deaths a day, and that's just unamerican.
posted by jragon at 7:48 AM on May 8, 2002


Keen: Also, the Japanese should be thanking the United States for its low gun murder numbers.
You are right, but for the wrong reason. The U.S. forced a U.S.-style constitution on Japan after the war, but the right to bear arms was not included, that's what I am thankful for. Obvious, you say, they had just waged a war of aggression. Removing the protection of gun rights is only natural. But one of the pillars of NRA policy is that private gun ownership is the people's last line of defense against a rogue gov't. What better example is there than Japan, where a cabal was able to steer the country into foreign aggression and eventually world war without a strong backing of public will? Yet America, which occupied until '52, didn't "arm" the Japanese people against their government as a farewell present.

Keene: Because these aren't arms you can bear. You can't really care around bombs with you.
That's a joke, right? It says "keep and bear arms." That means own and carry. I've read that gangs are now using .50 caliber semiautomatic rifles. I had guns waved at me twice back in my home state of Calif. Also, I am physically able to carry bombs, but I choose not to. I may be on the other side of the world, but I know that there is a bomb scare going on in the heartland of the U.S. Yesterday I edited for publication the doctor's pathology report on one of the dumbass nuclear fuel plant workers who caused an uncontrolled nuclear chain reaction by adding uranium to uranium in regular steel buckets from the hardware store. All he had to do was do that outdoors to kill a lot of people, instead of just himself and a coworker.

As for summary execution of people who bother you, Keen, I'm sure Dylan and Eric are smiling down on you now. Don't put on that trenchcoat.

Willnot, BTW, is absolutely correct that other societal factors are more important in the crime rate. It wasn't my intention to suggest otherwise.
posted by planetkyoto at 8:27 AM on May 8, 2002


As a strict constructionist/original intent type, I believe the 2nd Amendment guarantees the right of all Americans to own a flintlock musket.
posted by Ty Webb at 8:47 AM on May 8, 2002


Indeed. And the right to bare arms should stop at t-shirts, unless one is well-muscled.
posted by five fresh fish at 9:01 AM on May 8, 2002


According to this page, the per capita murder rate in Great Britain is 3 times higher than the rate in the US.

Um, no. That page managed to miss out the decimal point: the murder rate in the UK works out at about 750-800 per year, which rounds out to about 1.3 per 100k people, and makes the US per capita murder rate six times higher. Take a look at page 20 of the official Home Office stats. (PDF file.)

I couldn't find any source for the stats, and I didn't feel like googling any further, but if somebody has any better information please post it

In which case, could I suggest that you shouldn't bother posting a reference to a page that provides no supporting evidence? Otherwise, you end up looking a bit silly.
posted by riviera at 9:12 AM on May 8, 2002


willnot

According to this page, the per capita murder rate in Great Britain is 3 times higher than the rate in the US. The US seems to be in a dead head (excuse the pun) with France. England still has rules against her citizens carrying guns right?


Yeah, but we have a proud tradition of bludgeoning our foes to a lifeless pulp, using nothing but our teeth and fists... just look at how famously hard the British are: the SAS, Vinnie Jones and Giant Haystacks.

...

Oh yeah! ;-)
posted by bifter at 9:16 AM on May 8, 2002


No one has a problem reading the other Amendments literally, just this one. Why is that?

But beyond that, realistically the implementation of stricter gun laws - especially the banning of handguns, which of all the precepts I've heard seems to be the primary aim of gun control advocates - has some serious impediments, the same ones that occur whenever the government takes to banning something that has previously been legal and/or easy to obtain. The first in the element of confiscation: considering the seriousness with which most handgun owners hold their right to bear arms, a natiowide confiscatory effort on the part of the government would likely produce two things: mass caching of small arms, and in many cases outright resistance, up to violence. Those "You'll take my gun when you pry it from my cold dead heads" bumper stickers aren't just cute phrasing. The only way to get around this would be to conduct it like the assault weapons ban: no further weapons will be made sold, all currently owned weapons grandfathered in, and all current inventories (ahem) sold. The difference is that there were far less assault style weapons in prvate hands than there are handguns. Second, the element of smuggling, of which Americans have a long and colorful history. banning handguns would certainly move the traffic therein to organized crime. Basic economics says that removing supply without decreasing demand creates high prices and black markets to meet them.

For better or worse, Americans are different from Europeans and Asians about our attitudes toward guns. We equate them with individual freedom and liberty to a far greater extent than do other countries, and we have a longstanding history of individual gun ownership. Overriding that will take generations, even if the statistical relationship between gun ownership, restrictive gun laws and gun deaths per capita were more direct (which they are discomfittingly not).

Best bet: effective registration, testing for registered owners as to safety/mental health, high penalties for using guns for crimes, continuing buyback and destruction programs. Basically: enforce the laws we already have.

Apropos of nothing, a flintlock musket, though slower to load, has far greater killing power than a handgun. thousands of people survive handgun wounds each year. A musket ball averages between .50 and .70 caliber, elongates in flight, and will cause not only grievous wounds but also creates a kinetic shock through the soft tissues similar (although less powerful than) a grenade going off in a swimming pool.
posted by UncleFes at 9:16 AM on May 8, 2002


i personally hope that the 2nd amendment will go the way of the Privileges and Immunities Clause in the 14th amendemnt and the Guaranty Clause of a republican form of government (both of which are basically dead letter).

as far as the original intent goes, that seems great until we realize that if we went by original intent for the whole constitution we'd lose most of the rights we have now. The 14th amendemnt would only apply to freed slaves, the 1st amendment would only prevent the federal government from telling the states what religion to establish, the right to privacy, abortion, contraception, travel, procreation, and marraige would disappear completely, voting would be limited to white men with property, poll taxes would be legal, Jim Crowe laws would be constitutional, and the president would not be elected by the general public.

society changes, rights have to change with it. the 2nd amendment is obsolete and it should be treated that way by the court. i might be willing to except a really weak version of the right to bear arms which might prevent Congress (but not the states) from banning guns completely. but if the supreme court starts deciding to strike down laws like the one in question in Emerson (wife abusers with restraining orders against them must give up their guns), i'm moving to japan.
posted by boltman at 9:30 AM on May 8, 2002


also crime statistics:
per 100,000 people (from 1997)

US:
Homicide: 6.8
Robbery: 186:1
Rape: 35.9
Incarceration: 618

France
H: 4.4
Rob: 186.1
Rape: 12.7
Inc: 95

Germany
H: 4.9
Rob: 77.8
Rape: 7.6
Inc: 85

Japan
H: 1.0
Rob: 1.8
Rape: 1.2
Inc: 37

from my Criminal Law textbook. (Kaplan Weisberg Binder 2000)
posted by boltman at 9:37 AM on May 8, 2002


Apropos of nothing, a flintlock musket, though slower to load, has far greater killing power than a handgun.

Okay, but I'll bet we'd see far fewer crimes of passion when it takes you five minutes to load the fucker...
posted by Ty Webb at 9:37 AM on May 8, 2002


Guns and Gangs in Japan. Never heard of the Yakuza? It seems that Japan has had a well armed, organized gang system in place for many, many years. Interesting read on the role of guns in crime in Japan.
posted by daver at 9:53 AM on May 8, 2002


Apropos of nothing, a flintlock musket, though slower to load, has far greater killing power than a handgun.

Okay, but I'll bet we'd see far fewer crimes of passion when it takes you five minutes to load the fucker...



you'd be so pissed off at how long it takes to load a musket, you'd just use it to club the person to death.
posted by tolkhan at 10:13 AM on May 8, 2002


No one has a problem reading the other Amendments literally, just this one. Why is that?

Perhaps if you could share your 'literal' reading with us, we'd know?
posted by riviera at 10:33 AM on May 8, 2002


and the president would not be elected by the general public.

Impossible, the American people would never accept such a thing. ;)
posted by homunculus at 11:05 AM on May 8, 2002


'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.'

Not like they use an assload of big words there, Riv. But just in case...

well-regulated = trained
Militia = non-military soldiers (basically, civilians)
people = the individuals making up the aforementioned "free State" (not the government)
not = not
infringed = restricted

you'd just use it to club the person to death

you could, they weigh a friggin TON and the stocks are eerily axe-like.

Sometimes we forget that killing people pre-dates guns by a longish stretch.
posted by UncleFes at 11:09 AM on May 8, 2002


Believe it or not, I can comprehend the words, UncleFes: I'm just interested in seeing how you parse the clauses. Which you haven't yet done. I'd love you to do so, for the benefit of this ignorant hack.
posted by riviera at 11:44 AM on May 8, 2002


I'm certain that any way I'd do it would not only be absolutely and utterly wrong in your view but would provide nearly unlimited fodder for sarcastic dissection. So this ignorant hack will abstain from such a baited trap and let the sentence, clauses and all, speak for itself :)
posted by UncleFes at 12:00 PM on May 8, 2002


I'm certain that any way I'd do it would not only be absolutely and utterly wrong in your view but would provide nearly unlimited fodder for sarcastic dissection. So this ignorant hack will abstain from such a baited trap and let the sentence, clauses and all, speak for itself :)
posted by UncleFes at 12:00 PM on May 8, 2002


Oops. Opps.
posted by UncleFes at 12:13 PM on May 8, 2002


To me, the textual meaning is really obvious here.

Because we need militias for national security, Congress can't interfere with the state's regulation of them by forcing them to disarm.

The National Guard has replaced the function once held by the militias. The only militias we have today are exactly the sort of people that we don't want having lots of firepower. They are certainly not contributing to "the security of a free state." So, since the premise that the right is based on is no longer valid, and the right appears to be dependent on the premise, there is no right at all anymore.
posted by boltman at 1:13 PM on May 8, 2002


Maybe - although the National Guard is an arm of the very government from who the early American state militias were designed to provide protection from. But either way, you still have to get around the confiscation issue, though, and I don't see how you can without some fairly hefty jackboot action and concomitant response. There are millions of guns in private ownership in this country. Even if you could feasibly get every gun owner to voluntarily drive to the local police station and drop off all their guns in a cooperative and timely fashion (good luck with that), you're still talking about a project rivaling the scope of the WPA - collecting, cataloguing, checking against state gun ownership records, transporting, destroying. All done by state and federal authorities who already have stuff to do.

Banning handguns in America is, imo, simply not a realistically achievable goal.
posted by UncleFes at 1:31 PM on May 8, 2002


The fact that the National Guard has replaced the function once held by the militias doesn't mean that a state doesn't still have the right to call up a militia. I read the Second Amendment as enumerating two rights: the right of the states to call up militias and the right of individual citizens to keep and bear arms. The former is meaningless without the latter, so the latter must also be guaranteed. If you take this view, the existence of a militia is not a precondition to the right to bear arms -- it's quite the other way around.

This doesn't seem to me to have much relevance in today's world, but it's still there in the Constitution, so until an amendment is ratified, it's what we've got to live with.
posted by kindall at 1:39 PM on May 8, 2002


To me, the textual meaning is really obvious here.

Interesting that you've missed it.

Because we need militias for national security, Congress can't interfere with the state's regulation of them by forcing them to disarm.

'Regulated' in the second amendment means skilled or trained, not controlled by the state.

Furthermore, the two clauses are independent. The first does not limit the second, it is merely one affirmation of why the second clause is needed. And it is the right of the people (i.e., individuals) to keep arms, not the rights of militias as a group.
posted by ljromanoff at 1:51 PM on May 8, 2002


For better or worse, Americans are different from Europeans and Asians about our attitudes toward guns.

How intriguing that as a nation, we proudly insist on the distinction, although it kills so many of us. Viva le difference!
posted by sacre_bleu at 2:20 PM on May 8, 2002


i agree with your reading, ljromanoff. but the current administration was not confident the supreme court would rule that way. i'm not either.

also [from the article] The current position of the United States ... is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms.," Solicitor General Theodore Olson wrote in two court filings this week.

rights which depend upon policy decisions from the administration, can scarcely be called rights at all.
posted by lescour at 2:25 PM on May 8, 2002


'Regulated' in the second amendment means skilled or trained, not controlled by the state.

Whatever the meaning of 'regulated', it is indisputable that at the time of its passage, the Bill of Rights was understood as securing rights of individual citizens and states against the power of the federal government. Until fairly recently, states were perfectly free to regulate speech, religion, rights of the accused, or anything else in the Bill of Rights. Even now, states are only bound by those parts of the Bill of Rights that the Supreme Court has held to be "fundamental". States most certainly had (and still have) the power to regulate both militias and guns.

Furthermore, the two clauses are independent

not in any grammatical sense. "'A well-regulated Militia, being necessary to the security of a free State" is just not an complete though. The framers were a lot of things, but they weren't stupid. If they intended the second amendment to establish two distinct rights, they would have written it that way (as they did with many of the other amendments).
posted by boltman at 3:32 PM on May 8, 2002


I'm certain that any way I'd do it would not only be absolutely and utterly wrong in your view but would provide nearly unlimited fodder for sarcastic dissection.

Sincerely, I'm at a loss to work out why you say "No one has a problem reading the other Amendments literally, just this one." and yet shy away from saying what your literal reading adds up to. I'm not subject to the amendment, and probably won't be until Bush adds the UK to the axis of evil, so how you read it really doesn't affect me. But as a copyeditor, I'd probably want it re-phrasing for the sake of clarity. So if there's an obvious literal reading, and you're not prepared to share it...
posted by riviera at 3:43 PM on May 8, 2002


boltman, you are really gonna get your ass handed to you wrt the grammar of the Second Amendment.
posted by NortonDC at 4:02 PM on May 8, 2002


For better or worse, Americans are different from Europeans and Asians about our attitudes toward guns. We equate them with individual freedom and liberty to a far greater extent than do other countries, and we have a longstanding history of individual gun ownership. Overriding that will take generations,...

...and millions of bodies.

That's what I meant by "John Wayne fetish." I've got to protect my family because I'm a man. Good concept, but the gun is always waiting there, under your socks, and much more likely will be used against a family member than an intruder.

I used to teach my Japanese students that it was like a grassroots cold war, except with millions of Americans armed against millions of Americans. We survived the cold war (perhaps barely) because of safeguards on the button. With guns, safeguards are mostly voluntary and subject to whims, grudges, avarice, drunken jags, cocaine withdrawal symptoms, etc.

Never heard of the Yakuza? It seems that Japan has had a well armed, organized gang system in place for many, many years.

There is a yakuza office down the street from my mother-in-law's house. But they have business empires to run, and don't engage in street crime. They certainly don't wave guns about like street gangs in the U.S. Almost all of the few gun murders in Japan are point blank gang executions of other gangsters. It's just business, you understand.
posted by planetkyoto at 4:23 PM on May 8, 2002


boltman, you are really gonna get your ass handed to you wrt the grammar of the Second Amendment.

As soon as NortonDC gets his big brother...
posted by Ty Webb at 4:36 PM on May 8, 2002


Didn't need him last time.
posted by NortonDC at 4:37 PM on May 8, 2002


'Regulated' in the second amendment means skilled or trained, not controlled by the state.

Whatever the meaning of 'regulated', it is indisputable that at the time of its passage, the Bill of Rights was understood as securing rights of individual citizens and states against the power of the federal government.


Apologies for not being clear, although I thought it was understood - 'the state' I was referring to was the federal government (i.e., the American [nation-]state).

Furthermore, the two clauses are independent

not in any grammatical sense. "'A well-regulated Militia, being necessary to the security of a free State" is just not an complete though.


It is a participle phrase (with 'well-regulated' and 'necessary to the security of a free state' acting as adjectives of 'militia'.) Furthermore, this phrase does not modify the following clause (i.e., 'the right of...') as there is no condition either expressed or implied that the right to keep and bear arms is limited to within a militia or anything else. In fact, it is expressly stated that the right is held by (all) the people.The reference to the militia is a specific example, but it is no more than that - nor is there anything in the amendment that suggests otherwise.

The framers were a lot of things, but they weren't stupid. If they intended the second amendment to establish two distinct rights, they would have written it that way (as they did with many of the other amendments).

They do not intend two distinct rights at all. They are making an observatory statement stating (not establishing) that the right to keep and bear arms exists, and that that right will not be infringed.

To make this more clear, had the amendment been written in modern language it would read something like "Since a trained militia is needed for the security of a free state, the right of the people to keep and bear arms will not be infringed." There is nothing in that statement that says because a miltia is needed and that that militia needs arms, that therefore the militia is the only entity allowed to have arms. In fact, it clearly states that all the people (not just the militia) have that right.

posted by ljromanoff at 4:56 PM on May 8, 2002


rights which depend upon policy decisions from the administration, can scarcely be called rights at all.

Very true.
posted by ljromanoff at 4:57 PM on May 8, 2002


Though a "being" clause in a participle phrase usually flags up a subjunctive. Or at least it can justifiably be read as subjunctive. (type 1 in the linked ref) So, 'Since [x] applies, [y] follows' can be read 'While [x] applies, [y] follows'. (Normally, the two combine: 'it being dark, switch on your lights'.) At least, that's what I'd want clarified were I dealing with it. Anyone got an example of other 'being' clauses from that time-frame for comparison's sake? (Christ, I spend too much time with style guides.)
posted by riviera at 5:56 PM on May 8, 2002


one
Neil Schulman, an award-winning science-fiction writer from Southern California, and also a writer on gun-control issues, decided to ask professional grammarians what the Second Amendment meant. He called the Los Angeles Unified School District's Office of Instruction, and was referred to Mr. A.C. Brocki, Editorial Coordinator for the Office of Instruction. Mr. Brocki was described as the District's foremost authority on grammar, the person whom the rest of the Office of Instruction staff relied on for definitive answers.

Mr. Brocki walked Schulman through the grammatical terms. While over-punctuated, the Second Amendment could still be broken down grammatically. The first three words were a "nominative absolute." This nominative absolute was modified by the participial phrase that begins with "being." The "compound subject" of the sentence was "the right of the people." The verb phrase was "shall not be infringed," and "not" was an adverb modifying the verb phrase. The five-word phrase "to keep…" was an infinitive phrase modifying "right."

Mr. Brocki put the sentence in modern English: "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."

Asked if the sentence could be interpreted to restrict the right to arms only to the militia, Mr. Brocki said "no." He stated that the sentence meant that the people are the militia, and that the people have the right.

When asked, "Could another professional in English grammar or linguistics interpret the sentence to mean otherwise?" Mr. Brocki replied, "I can't see any grounds for another interpretation."

Asked if he would stake his professional reputation on the opinion and if he were willing to be quoted on the subject, Mr. Brocki said, "yes."
two
Roy Copperud was a newspaper writer on major dailies for over three decades before embarking on a a distinguished 17-year career teaching journalism at USC. Since 1952, Copperud has been writing a column dealing with the professional aspects of journalism for Editor and Publisher, a weekly magazine focusing on the journalism field.

He's on the usage panel of the American Heritage Dictionary, and Merriam Webster's Usage Dictionary frequently cites him as an expert. Copperud's fifth book on usage, American Usage and Style: The Consensus, has been in continuous print from Van Nostrand Reinhold since 1981, and is the winner of the Association of American Publisher's Humanities Award.

[...]

[Copperud:] "The words 'A well-regulated militia, being necessary to the security of a free state,' contrary to the interpretation cited in your letter of July 26, 1991, constitutes a present participle, rather than a clause. It is used as an adjective, modifying 'militia,' which is followed by the main clause of the sentence (subject 'the right', verb 'shall'). The to keep and bear arms is asserted as an essential for maintaining a militia.

"In reply to your numbered questions:

[Schulman:] "(1) Can the sentence be interpreted to grant the right to keep and bear arms solely to 'a well-regulated militia'?"

[Copperud:] "(1) The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people."

[Schulman:] "(2) Is 'the right of the people to keep and bear arms' granted by the words of the Second Amendment, or does the Second Amendment assume a preexisting right of the people to keep and bear arms, and merely state that such right 'shall not be infringed'?"

[Copperud:] "(2) The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia."

[Schulman:] "(3) Is the right of the people to keep and bear arms conditioned upon whether or not a well regulated militia, is, in fact necessary to the security of a free State, and if that condition is not existing, is the statement 'the right of the people to keep and bear Arms, shall not be infringed' null and void?"

[Copperud:] "(3) No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as a requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence."

[Schulman:] "(4) Does the clause 'A well-regulated Militia, being necessary to the security of a free State,' grant a right to the government to place conditions on the 'right of the people to keep and bear arms,' or is such right deemed unconditional by the meaning of the entire sentence?"

[Copperud:] "(4) The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia."

[Schulman:] "(5) Which of the following does the phrase 'well-regulated militia' mean: 'well-equipped', 'well-organized,' 'well-drilled,' 'well-educated,' or 'subject to regulations of a superior authority'?"

[Copperud:] "(5) The phrase means 'subject to regulations of a superior authority;' this accords with the desire of the writers for civilian control over the military."

[Schulman:] "(6) (If at all possible, I would ask you to take account the changed meanings of words, or usage, since that sentence was written 200 years ago, but not take into account historical interpretations of the intents of the authors, unless those issues can be clearly separated."

[Copperud:] "To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: "Since a well-regulated militia is necessary tot he security of a free state, the right of the people to keep and bear arms shall not be abridged.'

[Schulman:] "As a 'scientific control' on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence,

"A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed.'

"My questions for the usage analysis of this sentence would be,

"(1) Is the grammatical structure and usage of this sentence and the way the words modify each other, identical to the Second Amendment's sentence?; and

"(2) Could this sentence be interpreted to restrict 'the right of the people to keep and read Books' only to 'a well-educated electorate' — for example, registered voters with a high-school diploma?"

[Copperud:] "(1) Your 'scientific control' sentence precisely parallels the amendment in grammatical structure.

"(2) There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation."
Is that explicit enough?
posted by NortonDC at 6:11 PM on May 8, 2002


Though a "being" clause in a participle phrase usually flags up a subjunctive. Or at least it can justifiably be read as subjunctive. (type 1 in the linked ref) So, 'Since [x] applies, [y] follows' can be read 'While [x] applies, [y] follows'.

'While [x] applies, [y] follows' is not equivalent to 'While [x] applies, [y] follows only in regard to [x]' which is the situation you suggest if you make this argument to prove that the right to bear arms on applies to situations involving a militia.
posted by ljromanoff at 8:10 PM on May 8, 2002


uh...'only' not 'on'. Sorry.
posted by ljromanoff at 8:11 PM on May 8, 2002


to bear arms

This isn't "plain English." It's supposedly based on Latin arma ferre and means (idiomatically) "to be under arms."

In the late 18th c., firearms could not be bought for the wages earned from one day washing dishes. So, it must be admitted, the Framers probably did imagine that every "person"--heavily qualified by such terms as free, white, male, and able to afford a firearm--would make up the militia to keep the "people" safe.
posted by Zurishaddai at 9:09 PM on May 8, 2002


There's a lot of argument here on how to read the second amendment. An article on the justification and operative clauses of the second amendment called The Commonplace Second Amendment, says that the type of grammatical construction of the amendment wasn't uncommon around the time it was written, and also includes some rules of statutory interpretation from the time period. The US Constitution is just one of 51 american constitutions - it's worth taking a look at some of the others.
posted by bragadocchio at 11:43 PM on May 8, 2002


I just want to say that threads like this are why I love MeFi, thank you all.
posted by Ty Webb at 11:44 PM on May 8, 2002


Ah, behold the "framers" of our Constitution, those precise grammarians who, in their wisdom and deep reverence for freedom, allowed Americans the inalienable rights to possess slaves *and* the latest in 21st century assault rifle technology.

It only took about a century to rid ourselves of the horror of slavery, and of course, our society still reels from the aftereffects another hundred years after Emancipation.

So it's not surprising that this particular nation will need time to mature further, to grow beyond the fear and childishness and fetishism that embraces guns. Perhaps another hundred years...hundreds of thousands of lives...

Grammatical arguments about the "framers'" intent pales beside what the "framing" has wrought.
posted by fold_and_mutilate at 2:03 AM on May 9, 2002


Yeah, due process is a bitch, isn't it? It's sooo much more convenient to govern on based whatever mood foldy has that day.
posted by NortonDC at 4:33 AM on May 9, 2002


Fold_and_mutilate has a point though. Whatever the grammar, surely the intent was to arm a small group of farmers against hostile outside forces due to the lack of a standing army. Now the US has the biggest standing army in the world and little fear of sustained attack from any outside forces. Instead firearms are being used on American citizens, and rarely in defence of freedom. So surely the second amendment has ceased to be relevant to a discussion on firearms? Isn't that the point?
posted by Summer at 5:33 AM on May 9, 2002


The thing i've never understood is why people assume that if something is in the Constitution it is automatically right. It certainly looks to me like that amendment says in no uncertain terms that all people have the right to bear arms, but that they need that right because a militia is required. If the militia is no longer required, why is the right still required? I'm not really arguing either side, i'm just curious about people's perception
posted by zzero at 6:41 AM on May 9, 2002


If America decides the Second amendment has outlived its utility, then it can use the extant Constitutional mechanisms to repeal it. It's not rocket science, but it is a slow process that requires a clear consensus.

Ignoring the Second Amendment is not the way to fix it. The way to address an unwanted amendment is with a new amendment. It very straightforward.
posted by NortonDC at 7:01 AM on May 9, 2002


Whatever the grammar, surely the intent was to arm a small group of farmers against hostile outside forces due to the lack of a standing army.

Outside forces were not the sole concern. Republican government was still an unknown entity for the most part at the time. The framers of the constitution feared tyranny as much or more than 'outside' forces.
posted by ljromanoff at 7:52 AM on May 9, 2002


If they feared internal tyranny, you can be sure they feared an uprising from their slaves, leasehold farmers, Indians, and Spanish/Dutch/French/etc settlers who might want to have their country take over the newly-formed USA.

Which makes the "free, white, land-owning, wealthy male" argument even more pursuasive.
posted by five fresh fish at 9:33 AM on May 9, 2002


Which makes the "free, white, land-owning, wealthy male" argument even more pursuasive.

Not really. Gun ownership was ubiquitous at the time and defending oneself from either criminal intruder or enemy solidier was considered both an individual defense and a greater common defense. To suggest that the authors of the Bill or Rights were deliberately attempting to set up some sort of classist or racist elitism re: the right to bear arms and/or that they thought of the militia as some sort of subgroup of the population is false.

"To disarm the people... was the best and most effectual way to enslave them." -- George Mason

"Every one who is able may have a gun." -- Patrick Henry

"That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United states who are peaceable citizens from keeping their own arms." -- Samuel Adams

"The best we can hope for concerning the people at large is that they be properly armed." -- Alexander Hamilton

"Militias are in fact the people themselves and include all men capable of bearing arms." -- Richard Henry Lee
posted by ljromanoff at 10:07 AM on May 9, 2002


we can argue about participles and subjunctives I suppose, but I think the most persuasive evidence against the individual rights construction of the amendment can be found by comparing the version of the amendment that passed with the earlier drafts.

1) the original version of the 2nd amendment approved by the House seperated the two clauses with a semicolon, clearly implying two distinct rights. The Senate was unhappy with the semicolon and changed it to a comma. The only explanation for this change is that they wanted to link the two phrases together. Thus, there is just no question that the framers viewed the right to bear arms as inexoribly linked with the need for a militia. To say there is a right to bear arms outside the context of a militia is to say that the first half of the amendment is superfluous, which is contrary to the rules of statutory construction.

2) the original version of the 2nd amendemnt defined the militia as "composed of the body of the people." The Senate also eliminated this language. This suggests that the framers were not referring to some sort of universalized militia of the citizenry, but rather a more specific conception of the "militia"

3) Coincedentally, the Second Amendment is not the only place in the Constitution that refers to militias. Article I, Section 8, Clause 16, of the Constitution treats the militia as an entity that Congress has the legislative responsibility for "organizing, arming, and disciplining."

4) According to the rules of statutory construction, we should look to the rest of the text for the meaning of any unclear terms before we start looking to external sources. Thus, we must view the "militia" referred to in the 2nd amendment as the same militia that Congress has the power to regulate under Article I, now known as the national guard. This interpretation is also consistent with the Senate's decision to eliminate of "composed of the body of the people" from the text of the 2nd amendment.

If the "militia" refered to in the 2nd amendment is, in fact, the National Guard, and the two clauses are not indepedent, the only sensible way to interpret the 2nd amendment is that Congress may not disarm the National Guard.
posted by boltman at 5:04 PM on May 9, 2002


Why does this really matter? No one's arguing that, even within the confines of the 2nd Amendment, arms possession can't be regulated. So make it reasonably difficult to obtain guns, and impossible to obtain big time arms. It's not the Second Amendment which thwarts sane regulation. This is just certain politicians pandering to certain stupid constituencies which have the right to vote.
posted by ParisParamus at 5:29 PM on May 9, 2002


1) the original version of the 2nd amendment approved by the House seperated the two clauses with a semicolon, clearly implying two distinct rights.

Again, there are not two distinct rights - there is the observation of one right and an example, nothing more or less.

The Senate was unhappy with the semicolon and changed it to a comma. The only explanation for this change is that they wanted to link the two phrases together.

Regardless of the punctuation change, the final meaning is unambigous unless one deliberately intends to misunderstand the meaning.

2) the original version of the 2nd amendemnt defined the militia as "composed of the body of the people." The Senate also eliminated this language. This suggests that the framers were not referring to some sort of universalized militia of the citizenry, but rather a more specific conception of the "militia"

It suggests no such thing. More likely the framers knew that the definition of militia was generally understood and need not be explained. Unfortunately, it seems two hundred years later the definition of the militia within the document would save a lot of rather pointless arguments.

Thus, there is just no question that the framers viewed the right to bear arms as inexoribly linked with the need for a militia.

There is no limitation anywhere indicated in the amendment: "the right of the people to keep and bear arms shall not be infringed" is not an ambiguous statement.

If the "militia" refered to in the 2nd amendment is, in fact, the National Guard

It is not. The militia is all of the able bodied people of the republic. The National Guard is not a militia.

and the two clauses are not indepedent

However, they are independent.

If you disagree with the intent of the 2nd amendment, that is your right, but do not pretend it says something that it doesn't.
posted by ljromanoff at 5:45 PM on May 9, 2002


but do not pretend it says something that it doesn't.

I have offered concrete historical evidence of my position, backed up with correct use of the rules of statutory construction. You have responded by with no evidence, but merely by saying something to the effect of "any fool can see that I'm right." Check back will me when you actually have some evidence to back up your rhetoric.
posted by boltman at 7:20 PM on May 9, 2002


Evidence, specifically expert analysis of the text:
Asked if the sentence could be interpreted to restrict the right to arms only to the militia, Mr. Brocki said "no." He stated that the sentence meant that the people are the militia, and that the people have the right.
and
[Schulman:] "(1) Can the sentence be interpreted to grant the right to keep and bear arms solely to 'a well-regulated militia'?"

[Copperud:] "(1) The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people."
You know, boltman, ignoring it doesn't make it go away. You might as well take your fingers out of your ears now. Changing the law is much more promising than ignoring it.
posted by NortonDC at 7:32 PM on May 9, 2002


I have offered concrete historical evidence of my position,

No, you haven't. You have offered up illogical conclusions such as: "The only explanation for this change is that they wanted to link the two phrases together. Thus, there is just no question that the framers viewed the right to bear arms as inexoribly linked with the need for a militia." based on nothing more than your own biases. "The only explanation"? Really?

Your conclusion contradicts the very language of the amendment itself.
posted by ljromanoff at 9:12 AM on May 10, 2002


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