The SCOTUS will begin discussion of the 2A case Friday, will it come down to commas?
http://www.law.com/jsp/article.jsp?id=1194429843256
http://www.law.com/jsp/article.jsp?id=1194429843256
Will It Be Commas?
- Thread starter ronwill
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Henry Bowman
Senior Member
I don't think the SCOTUS will base their decision on the number or placement of commas. At least not the majority (whichever way the majority goes).
It is amazing that such..."literal" (i.e. textualist) scrutiny might be paid to the addition or exclusion or purpose of a single comma in the 2nd, yet other rather obvious clauses in the Constitution are ignored or their meaning changed due to it being "open to interpretation because it is a living breathing document". What BS!
ConstitutionCowboy
member
It comes down to this in all honesty: Regardless of to whom the amendment preserves the right, government shall not infringe upon it. That is what the Second Amendment does. It prohibits government from infringing upon the right. All benefit from the protection of the right, be it the people who serve in a militia, those who are served by a militia, those who govern, or those who defend themselves. Yes, all of "The People".
One must not forget that the Second Amendment prohibits government from infringing a right of the people; specifically, the Right of the People to Keep and Bear Arms. Whether those arms are used by those serving in a militia or not is immaterial. At best, the Second Amendment's parenthetical phrase supports Article I, Section 8, Clauses 15 and 16.
It’s like saying, “Because I’m hungry, I’m going to the grocery store.” “Because I’m Hungry,” is a parenthetical phrase. “I’m going to the grocery store”, is the salient part of that sentence. My parenthetical phrase could be, “Being out of dog food,…”, or “A can of beans being on the menu tonight, and since I’m out of beans, I’m going to the grocery store.” None of those parenthetical phrases alter the fact that I’m going to the grocery store. In fact, you need not know why I’m going to the grocery store same as you need not know why my right to keep and bear arms shall not be infringed. All you need know is that I'm going to the grocery store, and that the Right to Keep and Bear Arms shall not be infringed.
Woody
One must not forget that the Second Amendment prohibits government from infringing a right of the people; specifically, the Right of the People to Keep and Bear Arms. Whether those arms are used by those serving in a militia or not is immaterial. At best, the Second Amendment's parenthetical phrase supports Article I, Section 8, Clauses 15 and 16.
It’s like saying, “Because I’m hungry, I’m going to the grocery store.” “Because I’m Hungry,” is a parenthetical phrase. “I’m going to the grocery store”, is the salient part of that sentence. My parenthetical phrase could be, “Being out of dog food,…”, or “A can of beans being on the menu tonight, and since I’m out of beans, I’m going to the grocery store.” None of those parenthetical phrases alter the fact that I’m going to the grocery store. In fact, you need not know why I’m going to the grocery store same as you need not know why my right to keep and bear arms shall not be infringed. All you need know is that I'm going to the grocery store, and that the Right to Keep and Bear Arms shall not be infringed.
Woody
While I truly hope it doesn't come down to grammer, remember that the SCOTUS's job will be to translate the law. This could very well mean the commas will have at least some importance. Decisions in the past have usually leaned pro 2A. That doesn't mean it will happen here and will have a major impact no matter the decision.
CCowboy
Under the rules for judicial interpretation developed in the 18th century, specifically for legislation like the 2A, with lots of clauses, that is exactly right. In fact, if the operative clause is sufficiently clear to cover the case at hand (which is true in the Parker/Heller case) it is MANDATORY that the “declaratory” (Militia clause) be IGNORED.
Phil Lee
Member
The linked article asserts:
The bolded assertion of this article is incorrect. According to the printed Congressional Statutes at Large, Vol. 1, Page 97, the single comma version was proposed for ratification by Congress. The handwritten versions of the bill of rights appears to have introduced an "error" of two additional commas by a clerk's manual inscriptions, but that error didn't propagate to the documents prepared for the ratifiers of Rhode Island and Maryland (I have a image of the printed "Governor's Council Resolution" of Maryland, but have lost the link).
A rather good discussion of the 2nd Amendment comma topic may be found on Free Republic.
The bolded assertion of this article is incorrect. According to the printed Congressional Statutes at Large, Vol. 1, Page 97, the single comma version was proposed for ratification by Congress. The handwritten versions of the bill of rights appears to have introduced an "error" of two additional commas by a clerk's manual inscriptions, but that error didn't propagate to the documents prepared for the ratifiers of Rhode Island and Maryland (I have a image of the printed "Governor's Council Resolution" of Maryland, but have lost the link).
A rather good discussion of the 2nd Amendment comma topic may be found on Free Republic.
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Harve Curry
Member
I like to use the 2nd Amendment at the bottom of my posts. A few years ago I was corrected by a member of THR and he said this was correct:
The original 2A passed by Congress and the Senate read: “ 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. ”
The 2A given to, and ratified by, the states read: “ 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. ”
Info found at: http://www.billofrights.com/second_amendment.htm
The 2A given to, and ratified by, the states read: “ 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. ”
Info found at: http://www.billofrights.com/second_amendment.htm
I notice that other amendments in the bill of rights contain stipulations such as "... congress shall make no law ..." but the 2nd simply says "... shall not be infringed ... "
I have always taken this to mean that amendments with the former stipulation apply only to actions by the congress, whereas the more open "... shall not be infringed ..." without applying the mandate to anyone in particular, means that it applies to everyone and to all entities. For instance, a corporation could not infringe your 2nd rights, your neighbor could not infringe your 2nd rights, your city, state, county can not infringe your rights, NOBODY NOWHERE NOHOW could infringe your rights.
Am I off base in thinking this is implicit in the wording of the 2nd as distinct from the wording used in the 1st? To me, this circumvents the issue of incorporation. It appears to my simple reading that incorporation is implied in the amendment from it's adoption. Any legal scholars care to comment or add enlightenment?
I have always taken this to mean that amendments with the former stipulation apply only to actions by the congress, whereas the more open "... shall not be infringed ..." without applying the mandate to anyone in particular, means that it applies to everyone and to all entities. For instance, a corporation could not infringe your 2nd rights, your neighbor could not infringe your 2nd rights, your city, state, county can not infringe your rights, NOBODY NOWHERE NOHOW could infringe your rights.
Am I off base in thinking this is implicit in the wording of the 2nd as distinct from the wording used in the 1st? To me, this circumvents the issue of incorporation. It appears to my simple reading that incorporation is implied in the amendment from it's adoption. Any legal scholars care to comment or add enlightenment?
zxcvbob
Member
Bruss01, IANA legal scholar, but I agree with you and I've the same thing before... Nobody ever listens.
I am inclined to agree that the intent of the founders was that free white men (i.e.-citizens) would be permitted to keep and bear whatever arms they could afford wherever they wanted to. At that time, it was not considered a problem to bring a firearm with you wherever you went, and few people would have cared much one way or the other if you brought a firearm with you somewhere.
My personal opinion is that there is a conflict between the rights of gun owners to keep and bear arms, and the rights of property owners to control their own property. But, first we have to stop government from infringing on our rights, then we can worry about private land owners.
My personal opinion is that there is a conflict between the rights of gun owners to keep and bear arms, and the rights of property owners to control their own property. But, first we have to stop government from infringing on our rights, then we can worry about private land owners.
It was on one of the forums that I frequented where a guy had one of the foremost experts on the English language analyze the text and interpreted it as we know to mean it.
In essence, the militia is 'the people'. He equated it to this:
"A well-educated electorate, being necessary to the security of a free State, the right of the people to keep and read books, shall not be infringed."
I'm thinking (hoping) this is going to be a slam dunk for us.
In essence, the militia is 'the people'. He equated it to this:
"A well-educated electorate, being necessary to the security of a free State, the right of the people to keep and read books, shall not be infringed."
I'm thinking (hoping) this is going to be a slam dunk for us.
DonP
Member
I think the only thing pending with SCOTUS tomorrow is whether to grant Certorari and hear the case at all.
They won't even begin the actual review of the briefs, including the amici briefs, and hear oral presentations and start discussions until next Spring.
The only thing that could make things move faster is if they deny Cert and then the lower court's decision stands.
If that happens then DC must change their laws to allow ownership and possession of operating firearms immediately. Also the series of lawsuits against Chicago, Morton Grove and other outright and de facto gun banned cities can begin, using the SCOTUS upheld Circuit decision as precedent.
All that said, I think they will grant Cert to resolve the circuit decision inconsistencies that have crept into the interpretation of the 2nd over the last 40 years since Miller.
They won't even begin the actual review of the briefs, including the amici briefs, and hear oral presentations and start discussions until next Spring.
The only thing that could make things move faster is if they deny Cert and then the lower court's decision stands.
If that happens then DC must change their laws to allow ownership and possession of operating firearms immediately. Also the series of lawsuits against Chicago, Morton Grove and other outright and de facto gun banned cities can begin, using the SCOTUS upheld Circuit decision as precedent.
All that said, I think they will grant Cert to resolve the circuit decision inconsistencies that have crept into the interpretation of the 2nd over the last 40 years since Miller.
Harve Curry
Member
Brusso01's number 11 post above is on target.
My opinion of what the 2nd Amendment means (no matter where the comma's are put) is:
1).That we need a militia that has drill and practices (well regulated). Not the same as the National Guard.
2). Citizens of the United States are the "people", and their right to keep and bear arms shall not be infringed. This is whether that person is in the militia or not. They are two different topics covered in one sentence.
My opinion of what the 2nd Amendment means (no matter where the comma's are put) is:
1).That we need a militia that has drill and practices (well regulated). Not the same as the National Guard.
2). Citizens of the United States are the "people", and their right to keep and bear arms shall not be infringed. This is whether that person is in the militia or not. They are two different topics covered in one sentence.
Phil Lee
Member
From the "Early State Records of Maryland Online", page 625, the Second Amendment appears as having a single comma.
Maryland ratified the Bill of Rights in December of 1789 and a certified true copy of the amendments considered may be found in the Maryland State Archives Online. That document shows the 2nd Amendment as having one comma. A PDF copy is here
and image copies of these four pages are pg1, pg2, pg3 and pg4.
From this evidence and that of my previous message above, I would suggest that Congress proposed what became the 2nd Amendment with a single comma and that representatives ratifying for Maryland and Rhode Island certainly understood that it contained a single comma.
Maryland ratified the Bill of Rights in December of 1789 and a certified true copy of the amendments considered may be found in the Maryland State Archives Online. That document shows the 2nd Amendment as having one comma. A PDF copy is here
and image copies of these four pages are pg1, pg2, pg3 and pg4.
From this evidence and that of my previous message above, I would suggest that Congress proposed what became the 2nd Amendment with a single comma and that representatives ratifying for Maryland and Rhode Island certainly understood that it contained a single comma.
Standing Wolf
Member in memoriam
Nope. Parenthetic phrases are set off by parentheses (believe it or not!)
Im283
Member
I always thought the well regulated meant that people need to have modern weapons kept in good working order.
ConstitutionCowboy
member
Wickipedia and other sources such as "Strunk and White: the Elements of Style" typically specify to use commas to surround parenthetical - or parenthetic - phrases, and that the use of dashes and parentheses can be used as well, especially where the degree of separation from the remainder of the sentence is desired or required to keep from interrupting the flow of the sentence.
We're both right.
The parenthetical phrase, "A well regulated Militia, being necessary to the security of a free State," being set off with commas is sufficient (my opinion, and apparently that of the Founding Fathers) in this case.
Let's hope the SCOTUS chooses to see it for what it is. If they don't, rest assured they are following an agenda and not intent.
Woody
This crap will continue until the Court stops allowing itself to be misused as a legislative branch of government, or as an alternative to amending the Constitution. B.E. Wood
TallPine
Member
No - the SC will probably just ignore the text of the Constitution altogether and discuss a bunch of "public policy" issues. 
Avoid the use of parentheses (unless absolutely necessary).
Avoid the use of parentheses (unless absolutely necessary).
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