Can Commas Shoot Down Gun Control?

by Dennis Baron - March 22nd, 2007 - Lost Angeles Times

This is the first time a federal appeals court used the 2nd Amendment to strike down a gun law, and legal experts say the issue could wind up in the Supreme Court.

While the D.C. Circuit Court focused only on the second comma, the 2nd Amendment to the Constitution actually has three: "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 2-1 majority of judges held that the meaning turns on the second comma, which "divides the Amendment into two clauses; the first is prefatory, and the second operative."

The court dismissed the prefatory clause about militias as not central to the amendment and concluded that the operative clause prevents the government from interfering with an individual's right to tote a gun. Needless to say, the National Rifle Assn. is very happy with this interpretation. But I dissent. Strict constructionists, such as the majority on the appeals court, might do better to interpret the 2nd Amendment based not on what they learned about commas in college but on what the framers actually thought about commas in the 18th century.

This is an interesting article. A writer who supports the revisionist view that the Constitution cannot be interpreted by what the writers meant at the time they wrote it . . who believes in a living Constitution which allows new interpretations based on modern interpretations of the words of the Constitution . . . argues that we can reject modern grammatical rules for clarification of what the words mean . . . . and only use grammatical rules from the time it was written. This is his argument even though it conflicts with his rejection of the conversations of the time which indicate exactly what the writers meant. We can't pay attention to the writers of the Constitution because it is a living document and we must use modern theories of government needs to "interpret" the Constitution . . . . however we can't use modern grammar but must use one set of historical rules that support the revised meaning they want. [There is a great Internet abbreviation that is appropriate here. ROTFL]

The writer above is using a highly selective choice of how to interpret the Constitution. In essence this writer will use anything to change the meaning of the 2nd Amendment to what he wants it to say. The hypocrisy of this position is obvious. The "Bill of Rights" is a list of limitations on government granting rights to individuals for the purpose of limiting government power. However 2nd Amendment deniers chose to believe that this one Amendment grants rights to government and not to "the people". This is the only Amendment they insist gives rights to government.

This would imply that the problem is that government might not otherwise take on the power to arm their enforcers of laws they pass. Since this has never occurred in the history of the earth, how 2nd Amendment Deniers can argue this with a straight face is the key to this discussion.

I don't have any great confidence that our courts will ever return to the "rule of law". However it is amusing to watch those who want to rewrite the Constitution produce arguments that are so clearly duplicitous.