2nd Amendment, Scalia and what the Founders meant: Commas, Common Sense and Justice. The question is how to interpret the comma after 'free state.'

[frigidweirdo]

When have all "experts" on any subject ALL agreed ???

In Nazi Germany, Khmer Rouge's Cambodia, Stalin's Soviet Union and soon to be the USA of King Trump of Florida.

 

[M14 Shooter]

The Second Amendment is this:
The right to bear arms is the right to be in the militia

This is a lie.
No such right exists.

 

[jotathought]

This argument has been around for a very long time. The question is how to interpret the comma after “free state.” It's incredible that it took a heavily stacked court to rule as they did. I support gun ownership. Have been a gun owner. I have never been in or desired to join a militia. Why would I? I'm no Timothy McVeigh.


Opinion | Commas, Common Sense and Justice - John McWhorter - You’re reading the John McWhorter newsletter. A Columbia University linguist explores how race and language shape our politics and culture.

Like language itself, punctuation is always in a state of flux.

If you are of a certain age, notice how you are likely using exclamation points more lately. It has become a mark of agreeability in a way that would mystify a time traveler from as recently as a couple decades ago. “See you in a bit!” “I looked for you yesterday but you weren’t there!” I now email like that.

This is part of a long story Florence Hazrat tells in “On the Mark: From Periods to Interrobangs, How Punctuation Remade the World,” due out in August...

It’s a roller coaster of a story. Ancient Greek had no spaces between words, Hazrat writes, and Aristophanes of Byzantium, a librarian in Alexandria, found it cumbersome...

In considering how the history of punctuation can affect history itself, Hazrat touches on the role of commas in the 2008 Supreme Court ruling that the Constitution’s Second 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” — protects the rights of all people, not just militia members, to possess firearms. Hazrat finds the reasoning behind the ruling, District of Columbia v. Heller, is absurd. I agree.

The question is how to interpret the comma after “free state.” Justice Antonin Scalia, the author of the ruling, wrote that the comma set apart a mere preface to the “operative clause” of the amendment — the right of the people to keep and bear arms shall not be infringed. Hazrat writes that Scalia’s analysis followed the tradition of the most conservative pro-gun advocates to take the part of the amendment before that comma as throat-clearing, with all the intention of the amendment coming after that comma. Scalia argued that that preface in no way qualified or limited the intention of the Bill of Rights’ framers.

Essentially Scalia argued that the Founders meant, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms — something separate — shall not be infringed.”

Hazrat argues that commas should play no role in interpreting the amendment...

Rather, we should accept the most plausible interpretation of what the words mean. Until this century there was a broad understanding that the Founders meant that all clauses of the amendment, no matter how many there are, should be read together. As in, people should be able to bear arms to serve in a militia, not just for any reason they want.

I would add that the comma is less the issue than that Scalia’s interpretation is hopelessly forced. Scalia persuasively argued that in the late 18th century, “bear arms” referred to using weapons in various ways, not just in a militia. But it still leaves a crucial question: Why would the Founders bring up one type of gun ownership — when serving in a militia — if they wanted to approve all kinds of gun ownership? If they wanted to preface their proclamation, as Scalia claimed, they could have mentioned not only serving in a militia, but self-defense and hunting.

Under Scalia’s analysis, the following sentence would pass muster: “Basketball, aiding in health, sports, shall be encouraged.” Such a sentence is beyond clumsy.

It insults the Founders to suppose that this sort of convolution was the best they could do when adjudicating something of such gravity.

It comes down to this: “Officials, being prone to partisan bias, Supreme Court justices, should interpret language according to what is most intuitive.”

Since we’re focused on grammar, what’s the subject? And why would “the people” suddenly mean something different than it does everywhere else in the Bill of Rights?

 

[jotathought]

But he's right.

The Second Amendment is this:

The right to bear arms is the right to be in the militia
The right to keep arms is the right to own militia style weaponry (for individual soldiers, as opposed to owning tanks and SAMs)

"A well regulated Militia, being necessary to the security of a free State,"

All this does is say "well, the rights (stated above) are there so that we can remain free". It doesn't do anything. There's no right conferred in that part of the sentence. It doesn't take any power away from the US govt.

Unless you think it does, then if so, what power is taken from the US federal government?

You didn’t do well in grammar, did you?

 

[Cellblock2429]

This argument has been around for a very long time. The question is how to interpret the comma after “free state.” It's incredible that it took a heavily stacked court to rule as they did. I support gun ownership. Have been a gun owner. I have never been in or desired to join a militia. Why would I? I'm no Timothy McVeigh.


Opinion | Commas, Common Sense and Justice - John McWhorter - You’re reading the John McWhorter newsletter. A Columbia University linguist explores how race and language shape our politics and culture.

Like language itself, punctuation is always in a state of flux.

If you are of a certain age, notice how you are likely using exclamation points more lately. It has become a mark of agreeability in a way that would mystify a time traveler from as recently as a couple decades ago. “See you in a bit!” “I looked for you yesterday but you weren’t there!” I now email like that.

This is part of a long story Florence Hazrat tells in “On the Mark: From Periods to Interrobangs, How Punctuation Remade the World,” due out in August...

It’s a roller coaster of a story. Ancient Greek had no spaces between words, Hazrat writes, and Aristophanes of Byzantium, a librarian in Alexandria, found it cumbersome...

In considering how the history of punctuation can affect history itself, Hazrat touches on the role of commas in the 2008 Supreme Court ruling that the Constitution’s Second 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” — protects the rights of all people, not just militia members, to possess firearms. Hazrat finds the reasoning behind the ruling, District of Columbia v. Heller, is absurd. I agree.

The question is how to interpret the comma after “free state.” Justice Antonin Scalia, the author of the ruling, wrote that the comma set apart a mere preface to the “operative clause” of the amendment — the right of the people to keep and bear arms shall not be infringed. Hazrat writes that Scalia’s analysis followed the tradition of the most conservative pro-gun advocates to take the part of the amendment before that comma as throat-clearing, with all the intention of the amendment coming after that comma. Scalia argued that that preface in no way qualified or limited the intention of the Bill of Rights’ framers.

Essentially Scalia argued that the Founders meant, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms — something separate — shall not be infringed.”

Hazrat argues that commas should play no role in interpreting the amendment...

Rather, we should accept the most plausible interpretation of what the words mean. Until this century there was a broad understanding that the Founders meant that all clauses of the amendment, no matter how many there are, should be read together. As in, people should be able to bear arms to serve in a militia, not just for any reason they want.

I would add that the comma is less the issue than that Scalia’s interpretation is hopelessly forced. Scalia persuasively argued that in the late 18th century, “bear arms” referred to using weapons in various ways, not just in a militia. But it still leaves a crucial question: Why would the Founders bring up one type of gun ownership — when serving in a militia — if they wanted to approve all kinds of gun ownership? If they wanted to preface their proclamation, as Scalia claimed, they could have mentioned not only serving in a militia, but self-defense and hunting.

Under Scalia’s analysis, the following sentence would pass muster: “Basketball, aiding in health, sports, shall be encouraged.” Such a sentence is beyond clumsy.

It insults the Founders to suppose that this sort of convolution was the best they could do when adjudicating something of such gravity.

It comes down to this: “Officials, being prone to partisan bias, Supreme Court justices, should interpret language according to what is most intuitive.”

/—-/ I once debated a gun grabber who claimed the comma in the 2nd Amendment was a typo.
Seriously, he thought the typist made a mistake when drafting the document b

 

[frigidweirdo]

This is a lie.
No such right exists.

Yeah, it's a lie. It's fake news. It's TDS.

And it's so much of a lie that you debunked me with your sources and your facts.

And then I come along with.... the Founding Fathers and what they said and make you look like an idiot.

Amendment II: House of Representatives, Amendments to the Constitution

17, 20 Aug. 1789

"A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.""

The version of the future 2A that they were talking about on Aug 17th 1789.

It says "no person religiously scrupulous shall be compelled to bear arms"

Mr Gerry (of gerrymandering fame) said:

"Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms."

Then he said :

"Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins."

So, this is what they were talking about. Whether to have a religiously scrupulous clause in the future 2A. Mr Gerry felt that the govt would say "Mormons are religious scrupulous" and they could destroy the militia.

Then Mr Gerry said:

"Now, if we give a discretionary power to exclude those from militia duty who have religious scruples, we may as well make no provision on this head. "

So, he's talking about taking away to the "right to bear arms", and he's using the term "exclude those from militia duty" synonymous (which means it's being used to mean the same thing in case you don't know).

So why would he do this? Because it's pretty clear here that Mr Gerry thinks that "bear arms" means "militia duty".

Then:

"Mr. Jackson was willing to accommodate. He thought the expression was, "No one, religiously scrupulous of bearing arms, shall be compelled to render military service, in person, upon paying an equivalent.""

Ah, so they've gone from "compelled to bear arms" and they've changed it to "render military service".

Clearly Mr Jackson also thinks that "bear arms" is "render military service" or "militia duty".

Then:

"Mr. Scott objected to the clause in the sixth amendment, "No person religiously scrupulous shall be compelled to bear arms." He observed that if this becomes part of the constitution, such persons can neither be called upon for their services, nor can an equivalent be demanded; "

"called upon for their services" is the same as "bare arms"

It's pretty obvious that the Founding Fathers saw the "right to bear arms" as the right to be in the militia.

Even in the last century we see that this is the case.

The Dick Act of 1903

Militia Act of 1903 - Wikipedia

en.wikipedia.org

The Dick Act made the "organized militia" which is basically the National Guard. There was a problem. They needed a militia that could function, not like the militia where every man and his dog turned up and it didn't work.

So they made a more professional militia. But if it were the ONLY militia as stated in Article 1 Section 8 and the Second Amendment, then everyone would have been able to demand to join up. So they made the "unorganized militia" which still exists.

You turn up to the National Guard and demand to be in it, they say "well, you're in the militia already, you don't need to be in the militia to have your right to bear arms, you can do that in the "unorganized militia", so go away".

 

[frigidweirdo]

You didn’t do well in grammar, did you?

Go on then, tell me why my grammar is bad. Also you might want to read the post I posted before this one. Just so we can see who is the more knowledgeable about this topic.

 

[frigidweirdo]

Since we’re focused on grammar, what’s the subject? And why would “the people” suddenly mean something different than it does everywhere else in the Bill of Rights?

It doesn't.

"The people" as in, all individuals, have the right to be in the militia. And they also have the right to own militia type weaponry (small arms mostly).

 

[jotathought]

It doesn't.

"The people" as in, all individuals, have the right to be in the militia. And they also have the right to own militia type weaponry (small arms mostly).

What’s the subject of the sentence? Tell us genius .. the modern day Shakespeare

 

[Rumpole]

Like the 1st, 4th, and 5th amendments, the 2nd amendment, both in terms of the right and the protection afforded to it, is defined by jurisprudence.

Yes, but that is part of my point. The more a constitutional provision relies on centuries of litigation to determine its practical meaning, the stronger the argument that the text itself may be underspecified for modern circumstances.

Since 1939, said jurisprudence has gone a long way to create these definitions, and this will likely continue to be the case as the court hands down more rulings in the near future.

Thus, given your 'the militia is obsolete' argument, there's no demonstrable need to amend the text beyond "The right of the people to keep and bear arms shall not be infringed"

If the militia clause is obsolete, then half the amendment no longer performs its original explanatory function. Removing obsolete language may simplify the text, but it does not address the larger question of scope that dominates modern 2A litigation.

You cannot be more wrong, for in its plain text, it does exactly that.
-The right of the people
-Keep and bear
-Arms
-Shall not be infringed

Those words identify the existence of a right, but they do not answer modern scope questions. Does "arms" include machine guns? Grenades? Stinger missiles? Nuclear weapons? If not, where is the limiting principle found in the text itself?

The fact that courts have spent decades debating those questions suggests the text does not resolve them.

The court has addressed, and continues to address each of these terms, and in doing so, continues to define the scope of the right and the protection afforded to it.

Agreed. But that merely restates my concern. The scope is being defined primarily by judges rather than by constitutional text. Heller defined one version. A future Court may define another. That means the practical meaning of the right is increasingly dependent on Court membership rather than constitutional language.

Feel free to provide an example of such modernization, and demonstrate the necessity of therms found therein -- that is, why the change must be made, keeping in mind existing jurisprudence.

As a purely illustrative example:

"The right of law-abiding citizens to possess and carry firearms for lawful self-defense, hunting, sporting, and other lawful purposes shall not be infringed, subject to reasonable regulations enacted to protect public safety."

Whether one agrees with that wording is beside the point. The point is that it expressly identifies both the purpose of the right and the existence of regulatory authority. The current text does neither, leaving courts to infer both.

My argument is not that my wording is necessarily correct. My argument is that a modern amendment should answer questions that presently require generations of litigation and often ideological, ad hoc judicial interpretation to resolve.

 

[Rumpole]

There's zero chance the "right wing" will agree to amending the 2nd Amendment in any way you will find acceptable, and there's zero argument it has to compromise in this matter-- as it takes just 13 states to stop an amendment, the 'right wing' has more than enough power to tell you to FO, leaving you without recourse.

That may be true, but my main point is to have a conversation about modernizing the anachronistic second amendment.

 

[Rumpole]

Some rights are absolute, but humans can suppress them at times.

From a constitutional and jurisprudence standpoint, no rights are absolute.

Especially fascists ~Leftists who are power hungry.

Weasel words. Try writing intelligently, you'll feel better in the long run.

 

[frigidweirdo]

From a constitutional and jurisprudence standpoint, no rights are absolute.

Weasel words. Try writing intelligently, you'll feel better in the long run.

Yep, not a single right is absolute, especially in the US with the death penalty where you're literally taking away all rights from a human being when they are killed.

 

[frigidweirdo]

What’s the subject of the sentence? Tell us genius .. the modern day Shakespeare

The subject of the sentence?

"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."

That's the subject in orange.

The verb is "shall not be infringed".

In modern language is would be read without the comma. It's weird.

It's like writing:

"John, swims"

The first part of the amendment:

"A well regulated Militia, being necessary to the security of a free State,"

Doesn't have have a subject-verb-object.

"being" is a verb without a time. There's no past, no future, no present, no always, no conditional either.

In the modern era we'd probably have used the present tense and written:

"A well regulated militia is necessary for the security of the a free state".

Which would then have "A well regulated militia" as the subject, "is" as the verb and "necessary" another verb.

But the thing is, that all the Constitutional rights written in the Constitution, are powers taken away from the government. The government can't do this, the government can't do that.

The right to bear arms prevents the govt from stopping people from being in the militia.
The right to keep arms prevents the govt from stopping people from owning militia type weaponry.

The first part of the sentence, aside from being written archaically, doesn't take any power away from the government. Therefore it's not a right, therefore it doesn't mean anything.

Had they written only the latter part, it would have meant the same thing. They probably put it there to give the sentence context, to make sure that people knew they were protecting the militia, as stated in article 1 section 8, by preventing the US govt from taking away the right of INDIVIDUALS to be in the militia, and by preventing the US govt from taking away people's guns when they joined or left the militia (both in terms of being federalized and in terms of just "well, you're not in the militia so you don't get the right"), or if they weren't in the militia.

 

[westwall]

Let’s actually read the history instead of just treating the Second Amendment like a magical, all-powerful incantation.

For nearly two centuries, the Supreme Court did the exact opposite of what you’re claiming. Look at the Miller case back in 1939. It wasn't a footnote; it was the law of the land for almost seventy years. A unanimous Supreme Court openly ruled that the Second Amendment didn’t protect a short-barreled shotgun because that weapon had zero reasonable relation to the efficiency of a well-regulated militia. The Court explicitly stated that the entire purpose of the amendment was to guarantee the continuation and effectiveness of state military bodies. For generations, every single federal court used Miller to slam the door on the idea of an unrestricted individual right, tying gun ownership strictly to collective militia service.

Even further back, in nineteenth-century cases like Cruikshank and Presser, the Court viewed the amendment as a protection for state security and federalism, not an individual blank check for self-defense. In Presser, they literally upheld a state ban on citizens forming private armed groups.

The idea that the right is entirely independent of the militia did not exist in Supreme Court jurisprudence until Heller in 2008. That is why Heller was such a political and legal earthquake. Justice Scalia had to spend dozens of pages jumping through semantic hoops just to explain away the phrase "A well regulated Militia," treating the opening sentence of the amendment like an irrelevant piece of legal decoration. If the Court had "only ever" protected an independent individual right, Heller wouldn't have been a landmark 5-to-4 decision that overturned decades of precedent—it would have been an open-and-shut case. You are inventing a history that simply does not exist on the books

Thus the SC ruled that the only weapons that are protected are those that are useful for MILITARY purposes.

So handguns, machineguns, sniper rifles etc. are all protected by the 2nd and not to be interfered with by the government.

Your welcome.

 

[frigidweirdo]

Thus the SC ruled that the only weapons that are protected are those that are useful for MILITARY purposes.

So handguns, machineguns, sniper rifles etc. are all protected by the 2nd and not to be interfered with by the government.

Your welcome.

Well, I think it's a little more complicated than that.

A SAM could be used by the militia, but will not be allowed by law, and not protected by the 2nd Amendment.

Mostly it's individual arms used by a normal infantry soldier. Not tanks, not planes, not SAMs or anti-tank missiles. But usually guns.

The issue here is what the 2A means in terms of the right to keep arms.

The 2A is a RESTRICTION on the US govt (and now state govts).

So, they can't prevent you from owning a gun. So, if they said "you can buy this and that and the other gun but you can't buy that gun over there", have they restricted you from owning a gun? No, they haven't.

Mostly what the line seems to be is if they make the price of guns too expensive by putting restrictions on "guns you might use in the militia as a normal infantry soldier" then they have overstepped their mark.

 

[westwall]

Well, I think it's a little more complicated than that.

A SAM could be used by the militia, but will not be allowed by law, and not protected by the 2nd Amendment.

Mostly it's individual arms used by a normal infantry soldier. Not tanks, not planes, not SAMs or anti-tank missiles. But usually guns.

The issue here is what the 2A means in terms of the right to keep arms.

The 2A is a RESTRICTION on the US govt (and now state govts).

So, they can't prevent you from owning a gun. So, if they said "you can buy this and that and the other gun but you can't buy that gun over there", have they restricted you from owning a gun? No, they haven't.

Mostly what the line seems to be is if they make the price of guns too expensive by putting restrictions on "guns you might use in the militia as a normal infantry soldier" then they have overstepped their mark.

Any time the government passes laws that prevent American citizens from possessing any kind of firearm they are infringing on the 2nd.

The government may not restrict ANY militarily useful firearm. Period.

The 2nd doesn't speak to ordnance as you have pointed out, however, the first artillery unit in the colonies was a private organization that still exists today. The Ancient and Honerable Artillery Company of Boston was founded in the mid 1600's, before there was even a USA.

 

[frigidweirdo]

Any time the government passes laws that prevent American citizens from possessing any kind of firearm they are infringing on the 2nd.

The government may not restrict ANY militarily useful firearm. Period.

The 2nd doesn't speak to ordnance as you have pointed out, however, the first artillery unit in the colonies was a private organization that still exists today. The Ancient and Honerable Artillery Company of Boston was founded in the mid 1600's, before there was even a USA.

Where's the line? There has to be a line.

Let's start from the top.

Should individual be able to have nuclear weapons?
Should individuals be able to have SAMs?
Should individuals be able to have tanks and the ordinance that goes with tanks?
Where's the line?

 

[westwall]

Where's the line? There has to be a line.

Let's start from the top.

Should individual be able to have nuclear weapons?
Should individuals be able to have SAMs?
Should individuals be able to have tanks and the ordinance that goes with tanks?
Where's the line?

No.

No.

Yes, and yes.

Anything that was available to the individual at the time of the founding of this nation is fair game to me. So cannons are ok.

 

[M14 Shooter]

Yeah, it's a lie. It's fake news. It's TDS.
And it's so much of a lie that you debunked me with your sources and your facts.

The right of the people.
Not the militia.
Not the people in the militia.
The people.
As no one has a right to have any given association with the militia, the exercise of the right to keep and bear arms, as protected by the 2nd, must exist independent of a person's relationship with the militia.

Thus, you lied.
See how easy that was?