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Spot the Non Sequitur:

I hope to have a chance tomorrow to blog a little more about today's New York Times op-ed by Adam Freedman on the Second Amendment, but for now let me just invite readers to spot the non sequitur: Where does the author leave off the fairly plausible arguments that we shouldn't focus overmuch on comma placement, and make a pretty big and unsupported leap to the bottom line? My answer is below.

Thanks to Adam Mueller for the pointer.

UPDATE: InstaPundit, who in his lawprof life is (among other things) an expert on the Second Amendment, likewises criticizes the same paragraph.

OrinKerr:
I had the same reaction. Interesting op-ed until the bottom line, though (to the extent it's accurate).
12.16.2007 7:42pm
Mike99 (mail):
Hmm. Let me, as a teacher of English, have a run at this one. But first, it's always a bit disconcerting to see the lengths to which anti-gun folks will go to twist language and logic to their ends. It is, however, appropriate that this little missive appeared in the NYT, as I've often found their use of language and logic to be no better than that of my least capable high school students.

The Second Amendment consists of two clauses: the first, dependent, the second, independent. If we wish to catagorize the first clause as "prefatory," or "explanatory," or any other "tory," that's fine, but it's beside the point. Any dependent clause is essentially a sentence fragment. As such, it cannot stand on its own or express a complete message. "Because an independent press is essential to a free society..." means nothing. It has no meaning, it lacks context, without the independant clause that follows: "...the right of the people to keep and use printing presses shall not be infringed." Yes, we can agree that an independent press is a good thing, and the dependent clause implies that, but standing alone, without the independent clause that follows, it is no more than a platitude, without meaning and useless in law.

In short, a dependent clause cannot embody the main idea, the point, the theme of a sentence. It can only tell us something about, provide a bit of information about, the independent clause, in this case "...the right of the people to keep and bear arms shall not be infringed."

But using plain logic to understand plain language is beside the point in discussions of the Second Amendment, isn't it?
12.16.2007 7:53pm
Elliot Reed (mail):
Huh, I'd forgotten that the Second Amendment has more than one comma in it. Now the traditional English rule about punctuation not being part of the statute makes more sense.
12.16.2007 7:54pm
Alex650 (mail):
I just read the thing, absolutely fascinated, until I hit the conclusion. After making sure I read it right, I immediately came to this website hoping that Eugene had already posted on it.

But let's ignore the non sequitur and assume the analysis is correct. Can the dependent clause restrict the scope of the independent clause? Even if it can't do so of its own force, can it force an interpretation of "arms" consistent with the preservation of a Militia? Would this support arguments that handguns and artillery (maybe) are outside the scope of the Second Amendment? Or something similar?
12.16.2007 8:01pm
Mike99 (mail):
Regarding Alex650's question, dependent clauses are supportive of, never determinative over independent clauses. Trying to read the dependent clause to emboy the entire purpose and meaning of the sentence makes no sense.

It makes even less sense when one considers that every sovereign nation has the power (not the right--the founders were clear on that distinction) to raise, equip and maintain military forces, and that power is mentioned elsewhere in the Constitution (which preceded the Bill of Rights). That being the case, why would a power of the government, a power clearly understood by those writing the Constitution and the later Bill of Rights, be again mentioned in the Bill of Rights, and redefined as a right?

Of course, it would not, not unless one was trying to say that black is white and up is down and convince others of the correctness of such a peculiar brand of "logic."
12.16.2007 8:16pm
gattsuru (mail) (www):
Even with their interpretation, they're still taking the wrong conclusion. The necessity of the militia remains enshrined in United States statute -- laws not supported under other powers must be "proper and necessary", which would include the various militia laws in most situations.

Of course, if intellectual integrity were worth anything to them, they wouldn't be gun control advocates.
12.16.2007 8:22pm
wekt:

Can the dependent clause ... force an interpretation of "arms" consistent with the preservation of a Militia?

I think that the dependent clause can clarify any ambiguities about what the word "arms" refers to, but otherwise it cannot restrict the meaning of the operative clause.
For example, without the militia clause, it might be thought that the Second Amendment only protects personal self-defense, and that military weapons aren't covered. However, the militia clause clarifies that military weapons (such as selective-fire rifles) are protected.
12.16.2007 8:28pm
Richard A. (mail):
Imagine the following: "A militia with long underwear, being necessary to the security of a free state, the right to keep and bear long underwear shall not be infringed."

Would any sane person argue that this protects the right of only militia members to wear long underwear?
12.16.2007 8:29pm
Vinnie (mail):
Does the fact that their is no CURRENT organized militia negate the importance of maintaining the ability to form one?
12.16.2007 8:35pm
randal (mail):
Eugene -

The question that criticizers like yourself never answer is what role the Militia Clause actually plays. Are they just extra words? It seems like the Framers were pretty good at being terse, so why have that verbiage in there at all?

It seems like it must at least inform the countours of the right. However, I get the impression that "the right to go hunting" is somehow there in the periphery, according to the typical strong-second-amendment argument.
12.16.2007 8:49pm
NaG (mail):
What really bugs me is that those who argue for the "collective rights" view also endorse the D.C. gun ban as being in keeping with a collective right to keep and bear arms. This effectively means that a "collective right" is no right at all.
12.16.2007 8:51pm
gattsuru (mail) (www):
The question that criticizers like yourself never answer is what role the Militia Clause actually plays.


I can't speak for him, but I might be able to spare him the time of answering your question : the role to recognize the militia under the 1780s interpretation thereof. Early drafts make this a lot more clear, but it's fairly obvious that, unless the Framers wanted to just waste an Amendment, that they found the militia to be necessary for the security of a free state.

Given that the militia was (and remains, albeit in a less visible role today) the effective first responder to any and every emergency, I'd certainly consider that an important thing to write down and keep in people's minds.
12.16.2007 9:08pm
Dennis Nicholls (mail):
It's been a long time since my copyright class, but....

The IP clause of the Constitution, Art. I sect. 8[8] has a dependent clause "To promote the Progress of Science and useful Arts", which is similar to that of the Second Amendment. IIRC the Supremes heard a case where the defendent tried to claim he could copy some object (maybe porno?) since the work at issue didn't promote "the useful arts". The defendent lost and the Supremes held that the dependent clause was the reason Congress got the power to set up copyright law, and not any limitation on what kinds of works could be protected.
12.16.2007 9:28pm
Brooks Lyman (mail):
randal -

I would think that the militia reference is there to bolster the anti-infringement clause, not to define it.

As for hunting, even in the days of the founders, I suspect that a great many people of their class - mostly upper middle class and upper class - were not personally concerned with hunting, except perhaps as a recreation, although of course they recognized it as important to a great many of their fellow countrymen as both a means of subsistence and as a way to defend their livestock against predators, a far more serious problem in those days.

Far more important, both then and now, is self defense against human predators, whether hostile Indians and outlaws then or common (in more than one sense of the word) criminals today.

As the saying goes, "the Second Amendment isn't about duck hunting." Rather, it's about the natural right to defend the life that is mentioned in the Declaration of Independence: "...endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness..." And the right to arms is guaranteed, not granted by the Second Amendment, for it's a natural right that is inherent in the human condition.

To say that people have a right to life and then to deny them the right to defend their life in a meaningful fashion is a far step beyond feel-good liberalism, tending to ignorant (?) evil at the very least. One should not be forced to fend off gun or knife-wielding criminal assailants with bare hands, or even with equal weaponry. Self defense is not a sporting contest.
12.16.2007 9:29pm
Procrastinator:
the role to recognize the militia under the 1780s interpretation thereof.

Where do I find a reference to the time period in that clause? Seems pretty absolute--it's necessary to security, the end forever. No decade, and early drafts are not part of the Constitution no matter if they make it "more clear." What other sections of the Constitution tie interpretation to the adoption period without mentioning the time, or is this the only one, and why?
12.16.2007 9:36pm
b.:
A tortured textual analysis, being necessary to a gun-nut's reading of the framers' intent, your interpretation, shall be laughed out of the courtroom.
12.16.2007 9:42pm
CEB:
That was an excellent analysis. In other words, a terrible one.
12.16.2007 9:48pm
steveH (mail):

Does the fact that their is no CURRENT organized militia negate the importance of maintaining the ability to form one?


The main problem with this is that the National Guard, and the Naval Militia, are specifically defined as the organized militia in 10 USC 311, 312.

This doesn't mean that there might not also be other organized militias, but at least one currently exists.
12.16.2007 9:52pm
Dave Hardy (mail) (www):
1. The BoR was ruthlessly edited down in the First Congress. Two clauses would have survived without independent importance. The importance was that some of the framing period (classical republicans) feared Congress would neglect the militia, while others (call them radicals or proto-Jeffersonians) feared it would try to disarm the people. (And some, like Geo. Mason in 1788, feared both). Congress had to allay both sets of fears.

2. There are several "official versions" of the Second Amendment. The engrossed version has three commas, as I recall. But several versions returned with states' ratifications (arguably more "officials"), have one. Most of the ratifications were lost when the Capitol was burned in 1814. There were no photocopiers back then, and apparently scribes copying a document often punctuated according to their own style.
12.16.2007 10:06pm
Eugene Volokh (www):
randal: Well, since I talked about the subject in some detail in my NYU Law Review article, I'm pretty sure that it's not true that I "never answer" this question.
12.16.2007 10:07pm
DJMoore (mail) (www):
"The question that criticizers like yourself never answer is what role the Militia Clause actually plays."

How about this: the people's right to keep and bear arms includes their right to maintain and join a (loosely) organized militia.

My utopian vision for establishing militias in high school here.
12.16.2007 10:17pm
b.:
DJMoore said: My utopian vision for establishing militias in high school here.

I thought you were joking until I followed the above link to your website.

Eugene, his co-conspirators, and their dystopian vision of a blood-lust nation are in good company, it seems.

DJMoore's right: high school is, indeed, the perfect place for Volokh's brand of juvenile constitutional interpretation.
12.16.2007 10:30pm
TDPerkins (mail):

The question that criticizers like yourself never answer is what role the Militia Clause actually plays. Are they just extra words?


They are there to name a purpose for the impermissibility of infringing on the right to arms, because it is neccessary for a militia to exist as it should--apart from the political structure--thereby ensuring that the states remain free.
12.16.2007 10:34pm
Icepilot (mail):
His train of logic jumped the tracks in an even more basic way. The argument that provides his conclusion that "...the amendment is really about protecting militias..." implies that his latin example is about Caesar's command of the earth - it isn't. The main point of the phrase is his lack of fear of civil war or death.

Furthermore, I'll take the SCOTUS interpretation of the phrase "the right of the people" they've taken in the 1st, 4th and (kinda) the 9th amendments.

Or else they'll have to say that black is white. Not that they don't have the capability.....
12.16.2007 10:48pm
John (mail):
May we assume that since "militias" didn't include women that women have no right to own guns?

Or should we assume that since "people" does include women, women have a right to own guns?
12.16.2007 11:05pm
Gramarye:
My real problem with the prefatory clause is that, as an explanation for why the right to keep and bear arms shall not be infringed, it's hopelessly anachronistic. For better or worse, we've developed the large, standing professional army that the Founders would have feared, and the vast majority of the country is quite comfortable with that. As to militias preserving the security of a "free State," well, that notion was rendered somewhat moot after the dispute of North v. South (Appomattox Ct. House 1865). State militias have neither the legal right nor the physical power to protect any member state of the Union from federal authority, and no state faces external military threats (e.g., Native American tribal hostilities on the frontier) on its own anymore, either. In addition, the state militias extant today do not depend on individuals providing their own weaponry; the National Guard doesn't expect new recruits to show up with their own rifle. I realize that that encompasses only the "organized militia," which may not be synonymous with "well-regulated militia" (one could have a well-regulated unorganized militia), but I have trouble thinking of any credible argument about how a well-armed unorganized militia is essential to the security of a free State anymore.

Self-defense, not national defense or defense against the federal government, is by far the stronger contemporary reason for guaranteeing a robust individual right to keep and bear arms.
12.16.2007 11:21pm
glangston (mail):
Of course there are many quotes people put forth on this subject, but this one is as relevant as I've seen

"Laws that forbid the carrying of arms..disarm only those who are neither inclined nor determined to commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides, for an unarmed man may be attacked with greater confidence than an armed one." - Thomas Jefferson quoting Cesare Beccaria, Criminologist in 1764. That was 230 years ago. -Thomas Jefferson
Revolution Era Quotes on Militia
12.16.2007 11:33pm
Thoughtful (mail):
Gramarye: I have trouble thinking of any credible argument about how a well-armed unorganized militia is essential to the security of a free State anymore.

Let me help. Imagine the US government overthrown by a foreign power. Imagine the subsequent use of foreign military troops in our country to try to maintain order within the 3.5 million or so square miles of the US countryside. This 'official' police force, run either by the foreign military or by American turncoats, would be routinely hampered and often killed by weapons found in homes throughout America as a result of the second amendment. Such a use would be critical in maintaining or re-establishing a free State.

Granted, this is purely hypothetical. I can't think of any country invaded by a powerful foreign military that has successfully managed to kill thousands of foreign troops on their soil using only small arms such as anticipated by the Second Amendment, but I believe it is at least theoretically possible.
12.17.2007 12:09am
harmon:
"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."

While attention to such things as the manner in which the amendment is written is important, the amendment cannot be understood without taking into account the context in which it was written.

The American people, by force of arms in the form of militias mobilized into a national army, had just recently secured their freedom from a despotic government. The militias themselves consisted of all able bodied men, although not all men were mobilized.

In this context, it should be clear that the amendment is intended to protect the people's right to the existence of the militia itself, over and against the federal government. What the amendment means is that the federal government can neither abolish or limit the militia directly, nor prevent the people from being armed, which would abolish or limit the militia indirectly.

But can the states infringe the right to bear arms, by say, abolishing that right? It seems to me that the answer has to be no, otherwise what you have is a situation where the states, acting independently and separately (as opposed to by Constitutional process) could indirectly abolish the people's Constitutional right to a militia.

This does not mean that the states have no control over the right to bear arms. The right that the people have is to a "well regulated Militia." The instrument by which the Militia is regulated is the state government. So the states have the responsibility of sustaining a Militia, and can regulate the people's right to bear arms - but only in a fashion consistent with maintaining a well regulated militia.

The critical question, then, is whether or to what extent gun control is consistent with maintaining a "well regulated militia." But the amendment answers that question - infringing on the right to bear arms is inconsistent with maintaining a well regulated militia.

Except that now we are faced with the question of what constitutes an "infringement."

Since the amendment allows for regulation, it would seem to allow such things as requiring demonstrated proficiency with any weapon the citizen wants to bear. This, in turn, seems require some kind of record keeping and licensing system. At the same time, any attempt to simply ban the personal possession of a gun is blatantly an infringement, and as I see it, clearly unconstitutional.

Now, I know that this thread is about how the amendment works grammatically. But any lawyer knows how slippery even the best wrought language can be. Any understanding of a writing has to be measured against the context in which it was written, if only because an explanation ought to be available if the understanding seems to be at odds with the context.

In other words, you can't just read "inside the sentence" and be sure about what the sentence means. Even the attempt to do so incorporates some kind of context, if only the historical experience of the impact of word order.

My point is that a reading of the amendment to permit some kind of regulation of guns is perfectly congruent with the context in which the amendment was written.

What is not congruent with that context is an interpretation of the amendment which ignores the importance of the militia in the successful rebellion against the British, and ignores the words "well regulated" in the amendment itself.

That is why legal reasoning is not logical, like grammar, but rather, as Holmes said, experiential. And that applies to amendments.
12.17.2007 12:10am
harmon:
"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."

While attention to such things as the manner in which the amendment is written is important, the amendment cannot be understood without taking into account the context in which it was written.

The American people, by force of arms in the form of militias mobilized into a national army, had just recently secured their freedom from a despotic government. The militias themselves consisted of all able bodied men, although not all men were mobilized.

In this context, it should be clear that the amendment is intended to protect the people's right to the existence of the militia itself, over and against the federal government. What the amendment means is that the federal government can neither abolish or limit the militia directly, nor prevent the people from being armed, which would abolish or limit the militia indirectly.

But can the states infringe the right to bear arms, by say, abolishing that right? It seems to me that the answer has to be no, otherwise what you have is a situation where the states, acting independently and separately (as opposed to by Constitutional process) could indirectly abolish the people's Constitutional right to a militia.

This does not mean that the states have no control over the right to bear arms. The right that the people have is to a "well regulated Militia." The instrument by which the Militia is regulated is the state government. So the states have the responsibility of sustaining a Militia, and can regulate the people's right to bear arms - but only in a fashion consistent with maintaining a well regulated militia.

The critical question, then, is whether or to what extent gun control is consistent with maintaining a "well regulated militia." But the amendment answers that question - infringing on the right to bear arms is inconsistent with maintaining a well regulated militia.

Except that now we are faced with the question of what constitutes an "infringement."

Since the amendment allows for regulation, it would seem to allow such things as requiring demonstrated proficiency with any weapon the citizen wants to bear. This, in turn, seems require some kind of record keeping and licensing system. At the same time, any attempt to simply ban the personal possession of a gun is blatantly an infringement, and as I see it, clearly unconstitutional.

Now, I know that this thread is about how the amendment works grammatically. But any lawyer knows how slippery even the best wrought language can be. Any understanding of a writing has to be measured against the context in which it was written, if only because an explanation ought to be available if the understanding seems to be at odds with the context.

In other words, you can't just read "inside the sentence" and be sure about what the sentence means. Even the attempt to do so incorporates some kind of context, if only the historical experience of the impact of word order.

My point is that a reading of the amendment to permit some kind of regulation of guns is perfectly congruent with the context in which the amendment was written.

What is not congruent with that context is an interpretation of the amendment which ignores the importance of the militia in the successful rebellion against the British, and ignores the words "well regulated" in the amendment itself.

That is why legal reasoning is not logical, like grammar, but rather, as Holmes said, experiential. And that applies to amendments.
12.17.2007 12:10am
harmon:
"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."

While attention to such things as the manner in which the amendment is written is important, the amendment cannot be understood without taking into account the context in which it was written.

The American people, by force of arms in the form of militias mobilized into a national army, had just recently secured their freedom from a despotic government. The militias themselves consisted of all able bodied men, although not all men were mobilized.

In this context, it should be clear that the amendment is intended to protect the people's right to the existence of the militia itself, over and against the federal government. What the amendment means is that the federal government can neither abolish or limit the militia directly, nor prevent the people from being armed, which would abolish or limit the militia indirectly.

But can the states infringe the right to bear arms, by say, abolishing that right? It seems to me that the answer has to be no, otherwise what you have is a situation where the states, acting independently and separately (as opposed to by Constitutional process) could indirectly abolish the people's Constitutional right to a militia.

This does not mean that the states have no control over the right to bear arms. The right that the people have is to a "well regulated Militia." The instrument by which the Militia is regulated is the state government. So the states have the responsibility of sustaining a Militia, and can regulate the people's right to bear arms - but only in a fashion consistent with maintaining a well regulated militia.

The critical question, then, is whether or to what extent gun control is consistent with maintaining a "well regulated militia." But the amendment answers that question - infringing on the right to bear arms is inconsistent with maintaining a well regulated militia.

Except that now we are faced with the question of what constitutes an "infringement."

Since the amendment allows for regulation, it would seem to allow such things as requiring demonstrated proficiency with any weapon the citizen wants to bear. This, in turn, seems require some kind of record keeping and licensing system. At the same time, any attempt to simply ban the personal possession of a gun is blatantly an infringement, and as I see it, clearly unconstitutional.

Now, I know that this thread is about how the amendment works grammatically. But any lawyer knows how slippery even the best wrought language can be. Any understanding of a writing has to be measured against the context in which it was written, if only because an explanation ought to be available if the understanding seems to be at odds with the context.

In other words, you can't just read "inside the sentence" and be sure about what the sentence means. Even the attempt to do so incorporates some kind of context, if only the historical experience of the impact of word order.

My point is that a reading of the amendment to permit some kind of regulation of guns is perfectly congruent with the context in which the amendment was written.

What is not congruent with that context is an interpretation of the amendment which ignores the importance of the militia in the successful rebellion against the British, and ignores the words "well regulated" in the amendment itself.

That is why legal reasoning is not logical, like grammar, but rather, as Holmes said, experiential. And that applies to amendments.
12.17.2007 12:11am
Clayton E. Cramer (mail) (www):
randal writes:

The question that criticizers like yourself never answer is what role the Militia Clause actually plays. Are they just extra words? It seems like the Framers were pretty good at being terse, so why have that verbiage in there at all?
They are a statement of a hoped for result: primary reliance on state militias for defense of the nation. There were requests that were more binding, such as South Carolina's request that standing armies only be maintained in peacetime with the consent of 2/3 of Congress. New York and Virginia both produced requests for a Bill of Rights that included general philosophical principles (like the idea of relying on a militia) and also precise, binding requests for amendments.

There's a severe shortage of debates that clarify the intent of the ordering on this. But it is interesting that in cases like Houston v. Moore (1820), where the relative power of the states and the federal government relative to the militia were in play, no one seemed to think that the Second Amendment changed the nature of that relationship, and some justices said quite directly (and without contradiction by the others) that the relationship was specified in Art. I, sec. 8. If the Second Amendment changed any militia relationships, it seems to have been missed by everyone of the time who had occasion to write about the subject.
12.17.2007 12:31am
Clayton E. Cramer (mail) (www):
Thoughtful writes:

I can't think of any country invaded by a powerful foreign military that has successfully managed to kill thousands of foreign troops on their soil using only small arms such as anticipated by the Second Amendment, but I believe it is at least theoretically possible.
Afghanistan, against the Soviet Union. Iraq (although much of it is non-Iraqis) against Coalition forces.
12.17.2007 12:33am
Clayton E. Cramer (mail) (www):

The question that criticizers like yourself never answer is what role the Militia Clause actually plays. Are they just extra words? It seems like the Framers were pretty good at being terse, so why have that verbiage in there at all?

It seems like it must at least inform the countours of the right. However, I get the impression that "the right to go hunting" is somehow there in the periphery, according to the typical strong-second-amendment argument.
Uh, no. It's about the people having the power to overthrow a tyrannical government if things go really, really wrong. This is, after all, what the Framers had done less than 20 years before.

It amazes me that the same crowd that believes that Bush is going to declare martial law and cancel the 2008 elections to make himself President-for-Life is prepared to justify a monopoly on deadly force in the hands of the government.
12.17.2007 12:37am
Vinnie (mail):
":b.:
DJMoore said: My utopian vision for establishing militias in high school here.

I thought you were joking until I followed the above link to your website. "

Let me get this straight. You object to people being taught skills, discipline and public service why? Would you feel better if they were put on the police force? I mean we do the same thing at police academies. Do you have a problem with that? If so are you an authorized journalist? Do you have editorial approval of your writings?
12.17.2007 12:39am
randal (mail):
Eugene says, in his linked law review article

Reading "arms" as referring to weapons valuable to people as members of the militia thus seems textually consistent with the operative clause.

So it seems like we agree - the Militia Clause serves to clarify the contours of the right.

The Second Amendment is seriously ambiguous, especially in the definition of "arms." I assume we agree it shouldn't be read as "all weapons."

Which weapons aren't included in the right? Any weapon that doesn't materially contribute to the well-regulated militia. This includes hunting weapons, and probably most weapons that people find useful in a self-defense-from-criminals setting. From Miller:

[i]n the absence of any evidence tending to show that possession or use of a [sawed-off shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

So what weapons are immune from regulation? Seems like any weapon which has a reasonable relationship to militias. This must include AK-47s, various heavy machine guns, grenades, etc.

Obviously that's a pretty scary conclusion. I don't think even the "mainstream" strong-Second-Amendment types would want to legalize that set of weaponry.

Maybe we need a constitutional amendment to "fix" the Second Amendment by changing the Militia Clause into a Hunting and Self-Defense Clause. However, I find it disingenuous to argue that an "originalist" / "textualist" reading of the Second Amendment prevents regulating hunting guns but not, for example, grenades.
12.17.2007 12:42am
Tony Tutins (mail):
First, it pains me to see English teachers refer to the militia construction as a dependent clause, because even a dependent clause must have a subject and a verb. "Being" is not a verb. Anyone who has learned to diagram a sentence will soon realize that the sentence is (the) right ((to keep and to bear) arms)shall (not) be infringed. The entire militia verbiage floats above the sentence, because it is an absolute adjective construction, generally modifying the sense of the sentence.

Second, even if the Second Amendment were rewritten as a dependent clause/independent clause sentence, for the rewrite to have the meaning Freedman wants, i.e. for the dependent clause to limit the independent clause, instead of "because" the sentence would have to use "if and only if". Compare the similar sentence, "The weather being pleasant, we went for a walk." This could be rewritten as "We went for a walk because the day was pleasant," but we could have gone for a walk in the rain, or the snow, or even if it were sleeting. Similarly the right to keep and bear arms shall not be infringed even if a well-regulated militia had nothing to do with the security of a free state.

Third, the comments suggest that the term "well-regulated" means the type of comprehensive government regulation that sprang up in the middle of the last century, that necessarily leads to strict control over the guns that the citizen militia can own. And there is no justification for that. Not even sworn law enforcement officers have been limited to owning only their service weapons. Further, contemporary usages of well-regulated referred to well-regulated households and well-regulated young ladies, with connotations of tidiness, proper behavior, efficiency, and effectiveness. Any connection between "well-regulated" and "control" would be self-control: obviously a young lady's deportment was not the result of government regulation.
12.17.2007 12:49am
Oren:

Uh, no. It's about the people having the power to overthrow a tyrannical government if things go really, really wrong. This is, after all, what the Framers had done less than 20 years before.


I am a pretty die-hard gun supporter but, truth be told, I don't have much confidence in a civilian revolt against the US military*. Given the superlative nature of their training, organizations and hardware I'd say it probably wouldn't take more than a division or two to mop up most of the heartland. Not that it's not a worthy goal but a realistic view of the facts is essential.

*Provided the military stays loyal to the now-tyrannical government against which we are revolting. If their loyalty sways then all bets are off.
12.17.2007 12:57am
Thoughtful (mail):
Clayton, in response to my saying: "I can't think of any country invaded by a powerful foreign military that has successfully managed to kill thousands of foreign troops on their soil using only small arms such as anticipated by the Second Amendment, but I believe it is at least theoretically possible."

says: "Afghanistan, against the Soviet Union. Iraq (although much of it is non-Iraqis) against Coalition forces."

Clayton, didn't I just tell you in another recent reply that you ruin jokes when you over-analyze them? I guess I'll have to use more smiley faces for CC...
12.17.2007 1:15am
Thoughtful (mail):
:-)
12.17.2007 1:17am
Jason F:
Forget about the second comma -- I want to know what the heck that third comma means.

This may be a stupid question, but does the Congressional Record provide any guidance on what the framers of the amendment had in mind?
12.17.2007 1:18am
Oren:

Afghanistan, against the Soviet Union

Before the CIA stepped in with Stigners, the CCCP was wiping the Taliban out with helicopter gunships. I don't think anyone advocates allowing civilians to own Stinger missiles (although it's a big internet and one never knows).


Iraq (although much of it is non-Iraqis) against Coalition forces

Mostly armed from Saddam's cache (i.e. Western, Russian) or Iranian (Russian, local), Syrian (Russian) and, of course, stolen from us.

All the successful modern insurgencies have been supplied from the outside (or won by fracturing the gov't).
12.17.2007 1:25am
GaryC (mail):

randal

The question that criticizers like yourself never answer is what role the Militia Clause actually plays. Are they just extra words? It seems like the Framers were pretty good at being terse, so why have that verbiage in there at all?


One way of trying to understand why the Militia Clause is to find similar wording in other documents of the period.

For example,


A well regulated Militia, composed of the Gentlemen, Freeholders, and other Freemen, is the natural strength and only security of a free government


was part of the Fairfax County Militia Plan, written by George Mason and George Washington, which organized the militia in Fairfax County, Virginia in defiance of the orders of the Royal Governor.

Similarly, Patrick Henry offered a resolution in the Virginia assembly that began


Resolved, that a well-regulated militia, composed of gentlemen and freemen, is the natural strength and only security of a free government


His speech introducing this resolution ended with "Give me liberty or give me death."

Contemporaneous state constitutions used very similar wording:


Virginia Bill of Rights: That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state;
Delaware Declaration of Rights: That a well regulated militia is the proper, natural and safe defence of a free government.
Maryland Declaration of Rights: That a well regulated militia is the proper and natural defence of a free government.
New Hampshire Constitution: A well regulated militia is the proper, natural, and sure defence of a state.
12.17.2007 1:28am
Eric the Red:

Thoughtful:
Let me help. Imagine the US government overthrown by a foreign power. Imagine the subsequent use of foreign military troops in our country to try to maintain order within the 3.5 million or so square miles of the US countryside. This 'official' police force, run either by the foreign military or by American turncoats, would be routinely hampered and often killed by weapons found in homes throughout America as a result of the second amendment. Such a use would be critical in maintaining or re-establishing a free State.


WOLVERINES!
12.17.2007 1:37am
Gramarye:
I wrote:
I have trouble thinking of any credible argument about how a well-armed unorganized militia is essential to the security of a free State anymore.
Thoughtful responded:
Let me help. Imagine the US government overthrown by a foreign power. Imagine the subsequent use of foreign military troops in our country to try to maintain order within the 3.5 million or so square miles of the US countryside. This 'official' police force, run either by the foreign military or by American turncoats, would be routinely hampered and often killed by weapons found in homes throughout America as a result of the second amendment. Such a use would be critical in maintaining or re-establishing a free State.
This is where my word "credible" comes into play, then, I guess. I've heard scenarios like this before. This isn't my first gun rights debate. The problem is that this sounds so far afield that it's barely even within the realm of dystopian science fiction. Not only is the basic premise (a direct military invasion sufficient to topple the U.S. government without wiping out both sides in a nuclear exchange) hard to envision, but so is the secondary one (that this power that was in fact strong enough to overthrow America without destroying it utterly would be too weak to withstand armed civilians out in the hinterlands).

If we were in fact under threat from a foreign power, would we really stand by and wait for the national government to be overthrown, and then fight against the occupier individually? The far more likely reaction would be exactly what we did in WWII: conscript every able-bodied male and convert every industrial center to the production of war materiel, and fight the threat as one nation, not 50 states or 300 million individuals.

I just can't base the notion of an individual right to keep and bear arms on such an incredible hypothetical. As I said in my original post, by far the more logical argument (the 200-year-old text notwithstanding) in the modern world for an individual right to keep and bear arms is self-defense, not defense of the nation or defense against the nation.
12.17.2007 1:58am
Bill Poser (mail) (www):
I don't know the case that Dennis Nicholls is thinking of, but there is a recent Supreme Court decision that implies the same point. In Eldred v. Ashcroft, the court upheld the retroactive extension of copyright long past the life of the author. In so doing it rejected the argument that such an extension could not possibly serve as a motivation for authors and was therefore inconsistent with the stated purpose of copyright, namely "to promote the Progress of Science and useful Arts".
12.17.2007 2:56am
JustAGuest (mail):
The Second Amendment does NOT mention "the militia" it mentions "a ... militia". They are NOT the same thing. "The" is the definite article, "a" (or "an" or sometimes "any") is the indefinite article. The type of article used does matter. E.g. "A dog got hit by a car." vs. "The dog got hit by a car." If a family member called you and said those words, would you react the same to each sentence? The reason Houston v. Moore (1820) (IMHO) didn't rely on the Second Amendment is because the 2nd doesn't mention "the militia". You and I could easily form "a well-regulated militia", i.e. an orderly group of armed persons. If we're out in some field somewhere target practicing, etc. and not threatening anybody then we're probably acting legally. If we decide, on our own, to go “enforce the law” then we're acting in a vigilante role and we're probably illegal. However, if state governor drives up and tells us "there's been a jail break, come with me and shoot anybody you see wearing a prisoner's uniform" then we have essentially been deputized and we are now in "the militia", i.e. we're armed and enforcing the laws BUT we're acting under the direction of a legitimate government authority. The 5th amendment uses the term "in the Militia", not, "in a Militia" for a reason, "the Militia" is something specific, "a ... Militia" is a general concept. There is a difference.
12.17.2007 3:02am
K Parker (mail):
randal,

Are you really unaware that pistols are widely issued to members of the US military, and that hunting rifles make splendid sniper weapons?
12.17.2007 3:22am
JustAGuest (mail):
If, as some here claim, the 2nd was written solely to protect the right of “the militia” (however you want that term defined) to keep and bear arms and NOT to protect the right of “the people” (i.e. individuals) to keep and bear arms then why wasn't the 2nd written as "The militia, being necessary to the security of the state, the right of the state militia to keep and bear arms shall not be infringed."? Wouldn't that have been a whole lot easier, if that was truly their intent? Since it wasn't written that way, and the Framers had ample opportunity to write it that way, why should I assume that's what they “really” meant?
12.17.2007 3:27am
steve (mail):
Two other things that I recall reading about the words of the 2nd Amendment is that the word "regulated" didn't have the same meaning back then as it does in today's nanny state mentality that all regulation comes from ironclad rules handed down by the government. A regulated militia, is a common militia. It is regular. A well-regulated militia, then, is a militia that is well-secured in its commonness. In other words, is well-secured against state intervention (or modern day regulation). The exact opposite of what the anti-RKBA folks say.

Also, a free State is not a free California or Virginia, but a state of freedom in which we are free from despotism. To be in a state of freedom was a condition that needed a very regular (well-regulated!) populace (the individual people) free to keep and bear arms. To keep and bear arms was absolutely an individual imperative if a militia of the people, not the state(by definition not of the state), were to remain an effective force to secure the peoples' right to a state of freedom against government tyranny, foreign invasion, or criminal intent to take ones freedom (life or property) away from someone.
12.17.2007 4:32am
M. Simon (mail) (www):
I can't think of any country invaded by a powerful foreign military that has successfully managed to kill thousands of foreign troops on their soil using only small arms such as anticipated by the Second Amendment, but I believe it is at least theoretically possible.

Spain vs Napoleon.
12.17.2007 4:57am
M. Simon (mail) (www):
Uh, "well regulated" does not mean government controlled.

For current usage we might state "well drilled".

For good drill experience with arms is essential. Experience is gained by possession.

In the day a "well regulated" clock meant accurate.
12.17.2007 5:02am
TJ (mail) (www):
I am always amused when someone brings up the argument of the 2nd ammendment referring to a collective right, rather than an individual right. These people would never dream of ever using this sort of light with which to view any of the other ammendments, would they? For example: individuals do not have the right to free speech, unless they are a part of an officially recognized group, and then they can only express their opinions through press releases. Someone with some legal expertise should draw up a "collective bill of rights" reword them so that none of them refer to individuals. Would be an interesting read I think.
12.17.2007 6:43am
Gramarye:
steve wrote:
Also, a free State is not a free California or Virginia, but a state of freedom in which we are free from despotism. To be in a state of freedom was a condition that needed a very regular (well-regulated!) populace (the individual people) free to keep and bear arms.
I don't think there's any support in the text for this position. The word "State" in the constitution always refers to a State like Virginia or Pennsylvania. At least, I can't think of a single place where it doesn't, including the Sixth Amendment and Tenth Amendment right there in the Bill of Rights alongside the Second.
12.17.2007 8:33am
Happyshooter:
Even if it can't do so of its own force, can it force an interpretation of "arms" consistent with the preservation of a Militia? Would this support arguments that handguns and artillery (maybe) are outside the scope of the Second Amendment? Or something similar?

I would be very happy with that result. When I was an MP in the national guard, each MP had an M9 pistol (beretta 92FS) and an M16A2 rifle (an actual assault rifle, that being because it had an automatic setting). Further, each fire team had either an M60 machinegun, an M2HB 50 cal machine gun, or a Mk19 automatic grenade machinegun---and the team leader had an M203 launcher under his rifle barrel.

I would accept a ruling that I and every citizen are limited to that level of fire power (with the M60 updated to the current M240G of course).

As to arty, my state guard has a complete unit of MLRS arty which is quite a powerful thing indeed. It makes the 155 gun tubes look like firecrackers.
12.17.2007 9:07am
RKV (mail):
In Re: defining "well regulated"

It appears to me that a functional test of the militia to check to see if it is "well regulated" is whether or not it can perform the missions assigned to it by Article 1 Section 8 of the Constitution.

"To provide for calling forth the Militia to [1] execute the Laws of the Union, [2] suppress Insurrections and [3] repel Invasions;"

Arms necessary for the constitutionally prescribed missions of the militia are protected. This I believe is the essence of a fair reading of Miller (and God knows how many so called legal scholars have botched that one). Nor may states unilaterally eliminate the militia since it is defined as "necessary for the security of the free state."

Given the current statutory infringements (NFA, GCA, FOPA, etc.) on owning what are standard man-portable military weapons suitable for the three missions of the militia, we can hardly call it "well regulated" today. This, of course, is by design. Governments of all stripes want professional soldiers who are on their payroll and a monopoly on modern weapons. Don't bother asserting the legal existence of a few old automatics in private hands as proof otherwise. The FOPA of 1986 ended that farce - thank you Ronald Reagan.

That and $2 will get you a cup of coffee given the current degraded state of our jurisprudence. I hope that we can turn that around. Heller appears to be a good start.
12.17.2007 9:34am
TDPerkins (mail):
As to militias preserving the security of a "free State," well, that notion was rendered somewhat moot after the dispute of North v. South (Appomattox Ct. House 1865).


Actually the Founders were shown to be correct that a corrupt government would be destroyed by the militia, it was Northern militia that did just that.
12.17.2007 10:06am
steve (mail):
Gramarye,

I think the usage of State in the Constitution within the context of the 2nd amendment reflects quite similarly with the common usage of State as a condition. Philosophers, particularly those that influenced the Founders, often talked about States as a condition of freedom, ie. State of Nature in John Locke, which was a major influence in writing the Constitution. If I recall correctly, Montesquieu's Spirit of Laws did the same, and many of the State Constitution's did so also.

I could be wrong, but I think thats a compelling argument if a scholar can substantiate it. I beleive I read something to that affect though. Maybe it was Eugene that wrote it?
12.17.2007 10:37am
Aultimer:
Anybody who negotiates written documents with any regularity recognizes that the 2A was a deal-breaker compromised. It was acceptable to both sides precisely because it had enough wiggle room that each side could privately claim it supports only that view. One side wanted it to say "The right of the people to keep and bear Arms in support of a/the militia shall not be infringed." The other side wanted it to say "The right of the people to keep and bear Arms shall not be infringed."

No doubt outside counsel for one of the sides billed a couple hours drafting a definitiion for "Arms" and the parties deleted it as part of the compromise, forgetting to get rid of the initial capital letter.
12.17.2007 10:40am
steve (mail):
Gramarye,

Ok, Instapundit illustrates this in his post. "Thus, any reading of the Second Amendment that would allow the government to extinguish that militia is impermissible, since it would lead to a state that is insecure, or unfree."

I think my claim can be supported if I could find the article.
12.17.2007 10:43am
Shlomo Argamon (mail) (www):
Mark Liberman at Language Log has a detailed discussion of the linguistic issues at hand...
12.17.2007 11:15am
Bpbatista (mail):
Were there strict rules of punctuation and grammar in the 18th Century? There certainly weren't in regard to spelling.
12.17.2007 11:25am
SIG357:
I have trouble thinking of any credible argument about how a well-armed unorganized militia is essential to the security of a free State anymore.




That argument can be applied to various other amendments. The concept of a "press" is pretty much obsolete nowdays. Does that mean that we can or should scrap the First Amendment?
12.17.2007 11:26am
SIG357:
"As I said in my original post, by far the more logical argument (the 200-year-old text notwithstanding) in the modern world for an individual right to keep and bear arms is self-defense, not defense of the nation or defense against the nation."




It is not the role of the courts to be "logical" and to make the Constitution say whatever they think makes the most sense. There is an argument to be made that a right to bear arms is no longer neccessary in the modern world. The proper venue for that argument is the political one. There is a correct legal method of modifying the Constitution, and judicial "reinterpetation" is not it.
12.17.2007 11:34am
Gramarye:
steve: I'm pretty sure "state" in that Instapundit post also should be read as denoting a governmental entity, not a state of nature. You can much more readily substitute "nation" or "republic" or some similar proxy for a governmental entity into each usage of the word "state" in that passage than you could "state of nature" or any proxy for the latter.

SIG357 wrote:
It is not the role of the courts to be "logical" and to make the Constitution say whatever they think makes the most sense. There is an argument to be made that a right to bear arms is no longer neccessary in the modern world. The proper venue for that argument is the political one. There is a correct legal method of modifying the Constitution, and judicial "reinterpetation" is not it.


I can't say I share the notion that logic has no bearing on legal analysis. Moreover, one fundamental canon of statutory construction (which I believe is based soundly on logic, but you could take as a freestanding artifact if you prefer "purer" textualism) is that a word has the same meaning in all its appearances in a single document. "State," therefore, cannot mean "state of nature" instead of the governmental unit anymore than "people" can mean the collective in one amendment and in the individual in another (e.g., the Fourth).

Also, you mischaracterize my argument. I was never arguing, even as devil's advocate, the position that the RKBA is an anachronism. I was making a point about the prefatory clause, not the operative one. My point was that a well-regulated militia is arguably no longer necessary to the security of a free State, not that therefore the right to keep and bear arms should vanish into the ether. As I noted above regarding the proper construction of the word "people"--which appears in the operative clause, not the prefatory one--the right guaranteed is fairly clearly an individual one. I'm just underwhelmed by the ostensible justification for that right, if the text is the only leg one attempts to stand on.
12.17.2007 12:05pm
Andy Freeman (mail):
"Educated civil servants being necesssary to good govt, the right of the people to have and read books shall not be infringed."

The above version of the 2nd amendment accepts all of the gun controller's claims about 2nd amendment interpretation (including ones that are clearly false).

Yet, if that text was in the constitution instead of the relevant parts of the 1st amendment, no one would argue that it constrained those rights.

The reason that gun controllers interpret the 2nd amendment as they do is that it is it protects a right that they don't like.
12.17.2007 12:06pm
ed (mail) (www):
Hmmmm.

What I personally find most astonishing *and* amusing is when I ask gun control proponents the most simple question of all:

Since when does a government need a Constitution to give it the right to own and use weapons? And do you have any examples?

Stuttering follows.
12.17.2007 12:54pm
Jason F:
Andy Freeman -- But can't we read something into the fact that the authors of the Bill of Rights did not include a preamble like "Educated Civil Servants being necessary to good Government" in the First Amendment, while they did include the "Well regulated Militia" preamble in the Second?

In other words, your hypothetical does more harm than good to the cause of an individual rights view of the Second Amendment. There is a clear textual difference between the First and Second Amendments such that (arguably) the two amendments should not be read as parallels.
12.17.2007 1:04pm
Drake (mail) (www):
"The amendment, after all, continues to speak of the right of the people."

If need of a "well-regulated militia" is to be construed as a precondition of the right to bear arms, and if that precondition no longer obtains, what can it matter to the right whether it is individual or collective? Its raison d'être...n'existe plus.
12.17.2007 1:14pm
Philistine (mail):

Andy Freeman — But can't we read something into the fact that the authors of the Bill of Rights did not include a preamble like "Educated Civil Servants being necessary to good Government" in the First Amendment, while they did include the "Well regulated Militia" preamble in the Second?

In other words, your hypothetical does more harm than good to the cause of an individual rights view of the Second Amendment. There is a clear textual difference between the First and Second Amendments such that (arguably) the two amendments should not be read as parallels.



Take a look at Professor Volokh's article: The Commonplace Second Amendment.

It examines constructions of other rights in State Constitutions which are similar to the construction of the 2nd Amendment. For instance, the article's first example is the Rhode Island Constitution's provision that: "The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty."
12.17.2007 1:24pm
Philistine (mail):
I've never quite understood the relationship between the Article II, Sec. 8 provision that Congress has the power"To provide for...arming...the Militia" and the 2nd Amendment's suggestion that arms would be provided by the individuals.

I realize that Congress' power to arm the Militia is not a duty, and that early statutes required militiamen to muster with their own arms—but I've always thought there was something there that impacts on the whole argument, and I just haven't really been able to tease it out.
12.17.2007 1:29pm
RKV (mail):
Philistine, You might see just what legislation the founding generation passed to define and organize the militia. Try "The Militia Act of 1792." It clearly requires all able-bodied citizens to procure their own rifles and pistols. Miltias also used to have artillery and cavalry as per the act. You were to provide your own horse if you were a dragoon (mounted infantry). With respect to artillery both private and public guns were used (historically).

In terms of what this means to the "whole argument" it means simply that the militia was to maintain combat readiness and capability to act in accordance with orders from the governor or in the case of congressional act, under the command of the president.

Further, as I noted above the Constitution describes the three missions of the militia in Article 1 Section 8.

You might also take a look at current law under 10 USC 311 - last revised in 1956. The definition of membership in the militia is essentially the same as the act of 1792.

http://www.constitution.org/mil/mil_act_1792.htm

http://uscode.house.gov/download/pls/10C13.txt
12.17.2007 1:51pm
bearing (mail) (www):
IANAL and would like to know if there's anything wrong with this argument:

(1) The purpose of a civilian militia is to protect the people and their freedom through the use of armed force. It originates in a natural right to self-defense. As such the civilian militia is the ultimate source of "firepower" so to speak, in the same way that the population is the ultimate source of political power, originating in a natural right to self-government.

(2) The civilian militia reasonably delegates at least some of this power and authority to the government when it establishes a standing army, navy, etc., and when it establishes armed police forces to enforce the laws and to protect individuals. This is analogous to the social contract by which the individual delegates authority to a government for the common good, but by which the right to self-government still rests implicitly with the people.

(3) Where the standing army (to which some of the firepower is delegated) fails to protect the people's freedom or where it infringes the people's freedom, the people retain the right to protect themselves. Where the police force fails to protect the individual's safety, the people retain the right to defend themselves. This is analogous to the "right of revolution" -- when government fails people have a natural right to change the government.

So even if it is senseless today to think that "the militia" could have meaningful power in comparison to our standing armies, I say it's not senseless to think that "the militia" has meaningful power in comparison to our police forces and to the threats that the police are supposed to protect us from. If the government is unable to protect me, I have the right to try to protect myself, and I can do that with a personal weapon. Consider that the government sometimes calls in the army or the National Guard to keep the peace when local police forces are insufficient. Given that, am I not acting rightfully as a member of the "militia" if I act to take down a criminal when the police aren't present, able, or willing?
12.17.2007 2:00pm
JustAGuest (mail):
Gramarye, re: your comments "The word "State" in the constitution always refers to a State like Virginia or Pennsylvania." and "Moreover, one fundamental canon of statutory construction (which I believe is based soundly on logic, but you could take as a freestanding artifact if you prefer "purer" textualism) is that a word has the same meaning in all its appearances in a single document."

Does the usage of State in "from any King, Prince, or foreign State." and in "and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." refer exclusively to a state of the United States, e.g. Virginia, or is State used in these instances to mean a foreign country? Can a "foreign State" be a "free State"? Can a "free State" be a "foreign State"?
12.17.2007 3:18pm
JustAGuest (mail):
Let's not ignore the preamble to the Bill of Rights, which states, in part "THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added:" The introductory clause of the 2nd is a declaratory clause, the primary clause of the 2nd is a restrictive clause, restricting the federal government from disarming "the people". If the Framers wanted to only restrict the federal government from disarming the state militias they would have written "the right of the State militias to keep and bear arms". They did not do so.

And "the militia" has never been synonomous with "the people". "The militia" didn't include women, children, slaves, postmasters and some other govenment officials, seaman, etc. "The militia" is drawn from "the people" but it is a subset of the people, not an equal set.
12.17.2007 3:33pm
Leif (mail):
Quoting from Steve:

"Two other things that I recall reading about the words of the 2nd Amendment is that the word "regulated" didn't have the same meaning back then as it does in today's nanny state mentality that all regulation comes from ironclad rules handed down by the government."

Maybe, then, you can explain the titles to the following Pennsylvania statutes, all of which are full of rules and regulations:

"An Act to Regulate the Militia of the Commonwealth of Pennsylvania" (1777)

"An Act for the Regulation of the Militia of the Commonwealth of Pennsylvania" (1780)

"Regulation of the Militia of the Commonwealth of Pennsylvania" (1793)
12.17.2007 3:54pm
Gramarye:
JustAGuest:

"Foreign States" obviously refers to political entities other than the United States. However, it still denotes a political entity. I would argue that "foreign state" is designed to be read as a term of art in both of those contexts, given that it appears identically in both cases. I still can't see how it would refer to some "state of nature" or "state of freedom" as opposed to a more concrete entity.
12.17.2007 4:07pm
boris (mail):

Oren: Before the CIA stepped in with Stigners, the CCCP was wiping the Taliban out with helicopter gunships.



Say both AK47s and Stigners were necessary and sufficient. Either one is necessary neither one sufficient. It still remains true that the AK47s were necessary to drive out the CCCP.


"The militia" didn't include women


They currently serve in the organized militia aka US military, so that is covered by "that was then, this is now".
12.17.2007 4:07pm
M-K (mail):
Most of you seem to be overlooking the fact that "the right of the people to keep and ebar arms" existed in England, the colonies, and Natural Law long before it was linked to "a well regulated militia" in the Second Amendment. This pre-existing right included hunting, self-defense, and other legitimate uses. The Parker decision covers this nicely. It is this pre-existing right that the Second Amendment guarantees (not creates), to insure that effective militias can be formed when needed.
12.17.2007 4:10pm
boris (mail):

Act to Regulate the Militia of the Commonwealth ...
Still ambiguous. Regulation also means establishing standards. Regulation baseball for example simply means it conforms to specification wrt rules of the game.

IIRC militia members supplied their own uniforms. Uniforms by definition are "regular" as in they conform to some established standard of sameness. The term well regulated in context may imply a number of things but it primarily refers to the ability to field an effective force with regulation arms, uniforms and skill.
12.17.2007 4:17pm
Leif (mail):
Quoting JustAGuest

"And 'the militia' has never been synonomous with 'the people'."

What do you say Madison meant by "the people" in the following exchange from the minutes of the Virginia ratification convention on June 14, 1788?

"Mr. CLAY wished to be informed why the Congress were to have power to provide for calling forth the militia, to put the laws of the Union into execution.

"Mr. MADISON supposed the reasons of this power to be so obvious that they would occur to most gentlemen. If resistance should be made to the execution of the laws, he said, it ought to be overcome. This could be done only in two ways — either by regular forces or by the people. By one or the other it must unquestionably be done. If insurrections should arise, or invasions should take place, the people ought unquestionably to be employed, to suppress and repel them, rather than a standing army. The best way to do these things was to put the militia on a good and sure footing, and enable the government to make use of their services when necessary." (June 14)

From this and other instances, it appears to me that, in a military context such as the Second Amendment, the phrase "the people" could be considered the equivalent of "the militia." This use is parallel to the use of "the people" in Article 1, Section 2 as well as the 17th Amendment to mean "the electorate."
12.17.2007 4:28pm
Mike G in Corvallis (mail):
Likewise, when the justices finish diagramming the Second Amendment, they should end up with something that expresses a causal link, like: "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."

OK, as long as were torturing the text to this degree, I have to ask: where did that "because" come from? In parsing the sentence, it seems to me that one could make an equally good case for the apposition of the two clauses to imply "notwithstanding" rather than "because," thus:

Notwithstanding the existence of an organized militia, the right of the people [the unorganized militia] to keep and bear arms shall not be infringed.


In other words, the first clause serves to remind the reader that both an
organized and an unorganized militia can and do exist.

As Dave Hardy notes above, "some [people] of the framing period (classical republicans) feared Congress would neglect the militia, while others (call them radicals or proto-Jeffersonians) feared it would try to disarm the people. (And some, like Geo. Mason in 1788, feared both). Congress had to allay both sets of fears."

I don't see why this restatement and interpretation of the amendment is any
less plausible than Adam Freedman's.
12.17.2007 5:05pm
Mike99 (mail):
Dear Tony Tutins:

Allow me to relieve your English teacher inspired pain. "Be" is the most irregular verb in the English language. "Being" is one of its many forms. Feel better now?
12.17.2007 7:55pm
Andy Freeman (mail):
> But can't we read something into the fact that the authors of the Bill of Rights did not include a preamble

Sure we can.

My point is that the folks who find restrictions in the 2nd's preamble wouldn't do so if the subject were something that they valued.

My rewrite merely demonstrates that "Guns bad, porn good" is a a fairly popular theory of constitutional interpretation.
12.18.2007 3:20pm
Tony Tutins (mail):
Mike 99: a naked participle is not a verb but a verbal. Here, "being" can only be one of two things: a present participle acting as an adjective modifying Militia, or a gerund acting as a noun.

Don't they teach grammar in grammar schools anymore?
12.19.2007 10:43am