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Words
of Freedom Mr.
Kopel research
director, Independence
Institute. |
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Dear Reader: The opening clause isn't superfluous, but it doesn't constrict the main clause of the Second Amendment, which states: "The right of the people to keep and bear Arms, shall not be infringed." The best explanation of the introductory clause can be found in UCLA Law Professor Eugene Volokh's article "The Commonplace Second Amendment," which appeared in the New York University Law Review in 1998. Volokh explains that the Second Amendment follows a common pattern of constitutional drafting from the Early Republic: There is a "purpose clause," followed by a main clause. For example, Rhode Island's 1842 freedom-of-the-press provision declared: "The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty." This provision requires courts to protect every person's right to "publish sentiments on any subject" — even when the sentiments are not "essential to the security of freedom in a state," or when they are detrimental to freedom or security. (The Rhode Island Constitution, by the way, echoes William Blackstone's 1769 Commentaries: "The liberty of the press is indeed essential to the nature of a free state.") Similarly, the 1784 New Hampshire Constitution declared: "Economy being a most essential virtue in all states, especially in a young one; no pension shall be granted, but in consideration of actual services, and such pensions ought to be granted with great caution, by the legislature, and never for more than one year at a time." This provision makes all pensions of longer than one year at a time void — even if the state is no longer "a young one" and no longer in need of economy. Volokh supplies dozens of similar examples from state constitutions. As Volokh explains, the purpose clause can be used to resolve gray areas. For example, nineteenth-century American courts treated the Second Amendment as an individual right that could be exercised by any American. When asked what types of arms were protected, many courts held that the type of weapon had to be something that could be suitable for militia-type use. For example, a rifle would be protected, but not brass knuckles. Groups like Handgun Control, Inc., castigate the National Rifle Association and other Second Amendment champions for sometimes quoting only the main clause of the Second Amendment. The anti-gun groups argue that the main clause can't be properly understood unless the introductory clause is also quoted. But the United States Supreme Court does not seem to agree. Of the 29 U.S. Supreme Court opinions that have quoted the Second Amendment, 23 contain only a partial quote. This quoting pattern suggests that, generally speaking, Supreme Court justices have not considered the purpose clause at the beginning of the Second Amendment to be essential to the meaning of the main clause. The state constitutions of Alaska, Hawaii, and North Carolina each contain language identical to the Second Amendment. In all three states, it is indisputable that the state constitutional right belongs to individuals without regard to militia membership. State v. Mendoza, 82 Haw. 143, 149 n. 9, 920 P.2d 357, 363 n. 9 (1996); State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921). Besides looking at history and at judicial precedent, there are other methods for analyzing the introductory clause of the Second Amendment, and they all lead to the same result. Constitutional lawyer Stephen Halbrook (who has a 3-0 record before the Supreme Court) observes that the Amendment may be stated in the form of a hypothetical syllogism: "If (or, since) a well-regulated militia is necessary to the security of a free State; then the right of the people to keep and bear arms shall not be infringed." "If, for argument's sake, a civilian 'well-regulated militia' is no longer 'necessary to the preservation of a free State,' it does not logically follow that 'the right of the people to keep and bear arms' may be now infringed. To so conclude would be to commit the fallacy of 'denying the antecedent.' In illustrating the fallacious logic entailed in denying the antecedent, an analogous but simpler syllogism may be used: 'If it is raining, there are clouds. It is not raining. Therefore, there are no clouds.' The conclusion is obviously fallacious, for there may in fact be clouds even though it is not raining." Sheldon Richman, editor of Ideas on Liberty, parses as follows: "Approaching the sentence as grammarians, we immediately note two things: The simple subject is 'right' and the full predicate is 'shall not be infringed.' This, in other words, is a sentence about a right that is already assumed to exist. It does not say, 'The people shall have a right to keep and bear arms….'" "This has important implications for the opening militia phrase … Gun opponents often argue that if the opening phrase does not apply — if, say, the standing army takes the place of the militia — then the right to keep and bear arms is nullified. That view would require a willingness by the framers of the Constitution to agree with this statement: If a well-regulated militia is not necessary to the security of a free state, the right of the people to keep and bear arms shall (or may) be infringed. But it would be absurd to think that the Framers would embrace that statement. Their political philosophy would not permit them to speak of a permissible infringement of rights … The term infringement implies a lack of consent…. "If [the Framers'] concern had been to keep the national government from limiting the states' power to form militias, they might have written: 'A well-regulated militia being necessary to the security of a free state, the power of the States to form and control militias shall not be limited.'" (Sheldon Richman, "What the Second Amendment Means," FREEDOM DAILY, Oct. 1995} Richman also explains that nullifying the opening clause does not nullify the entire sentence: "Imagine a long-lost Constitution that stated: 'The Earth being flat, the right of the people to abstain from ocean travel shall not be infringed.' Would anyone seriously argue that discovery of the Earth's spherical shape would justify compelling people to sail?" Neil Schulman, an award-winning science-fiction writer from Southern California, and also a writer on gun-control issues, decided to ask professional grammarians what the Second Amendment meant. He called the Los Angeles Unified School District's Office of Instruction, and was referred to Mr. A.C. Brocki, Editorial Coordinator for the Office of Instruction. Mr. Brocki was described as the District's foremost authority on grammar, the person whom the rest of the Office of Instruction staff relied on for definitive answers. Mr. Brocki walked Schulman through the grammatical terms. While over-punctuated, the Second Amendment could still be broken down grammatically. The first three words were a "nominative absolute." This nominative absolute was modified by the participial phrase that begins with "being." The "compound subject" of the sentence was "the right of the people." The verb phrase was "shall not be infringed," and "not" was an adverb modifying the verb phrase. The five-word phrase "to keep…" was an infinitive phrase modifying "right." Mr. Brocki put the sentence in modern English: "Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." Asked if the sentence could be interpreted to restrict the right to arms only to the militia, Mr. Brocki said "no." He stated that the sentence meant that the people are the militia, and that the people have the right. When asked, "Could another professional in English grammar or linguistics interpret the sentence to mean otherwise?" Mr. Brocki replied, "I can't see any grounds for another interpretation." Asked if he would stake his professional reputation on the opinion and if he were willing to be quoted on the subject, Mr. Brocki said, "yes." Schulman then asked Mr. Brocki whom Mr. Brocki considered to be the nation's top expert on English usage. Mr. Brocki referred Schulman to Roy Copperud, a retired journalism professor at the University of Southern California, and author of American Usage and Style: The Consensus, which won the American Publishers' Humanities Award. Before beginning a seventeen-year teaching career, Prof. Copperud had been a newspaper writer for major daily newspapers for three decades. He served on the usage panel of the American Heritage Dictionary, and was cited as an expert by the Merriam Webster's Usage Dictionary. After some telephone calls and an exchange of correspondence, Prof. Copperud wrote back to Schulman stating his interpretation of the Second Amendment. Schulman had sent Prof. Copperud a list of questions, and the questions are interpolated below with Prof. Copperud's written answers: [Schulman] Can the sentence be interpreted to grant the right to keep and bear arms solely to "a well-regulated militia"? [Copperud] The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than people; it simply makes a positive statement with respect to a right of the people. [Schulman] Is "the right of the people to keep and bear arms" granted by the words of the Second Amendment? [Copperud] The right is not granted by the Amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia. [Schulman] Is the right of the people to keep and bear arms conditioned upon whether or not a well-regulated militia is, in fact, necessary to the security of a free state? [Copperud] No such condition is expressed or implied. The right to keep and bear arms is not said by the Amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and the necessity of a well-regulated militia as requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence. [Schulman] Does the clause "A well-regulated Militia, being necessary to the security of a free State," grant a right to the government to place conditions on the "right…"? [Copperud] The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia. [Schulman] Which of the following does the phrase "well-regulated militia" mean…? [Copperud] The phrase means "subject to the regulations of a superior authority"; this accords with the desire of the writers for civilian control over the military. [Schulman] If at all possible, I would ask you take into account the changed meanings of words, or usage, since that sentence was written. [Copperud] To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the Amendment. If it were written today, it might be put: "Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be abridged." [Schulman] As a "scientific control" on this analysis, I would also appreciate if you could compare your analysis of the text of the Second Amendment to the following sentence, "A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed." Is the grammatical structure and usage of this sentence, and the way the words modify each other, identical to the Second Amendment? Could this sentence be interpreted to restrict "the right of the people to keep and read Books" only to "a well-educated electorate" — for example, registered voters with a high-school diploma? [Copperud] (1) Your "scientific-control" sentence precisely parallels the Amendment in grammatical structure. (2) There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation. After completing the project, Prof. Copperud, who passed away half a year later, told Schulman that he personally favored gun control. See, J. NEIL SCHULMAN, STOPPING POWER 151-59 (Santa Monica: Synapse-Centurion, 1994). If the Second Amendment is confusing to some people these days, the confusion is not the fault of the Amendment's author James Madison, or of the rest of the Founders. Rather, the confusion is mainly due to the success of gun-prohibition organizations in trying to convince the public that "the right of the people" really means "the power of the government." |
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NRO reader, Sharon Bloch of St. Louis, Mo., writes, "My husband
I have been discussing the Second
