Second Amendment grammar -- the Framers parsed it one way, but will the Supreme Court agree with their analysis? (UNCLASSIFIED)

Mullins, Bill AMRDEC Bill.Mullins at US.ARMY.MIL
Mon Mar 17 16:58:30 UTC 2008

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> -----Original Message-----
> From: American Dialect Society
> [mailto:ADS-L at LISTSERV.UGA.EDU] On Behalf Of Joel S. Berson
> Sent: Monday, March 17, 2008 10:56 AM
> Subject: Re: Second Amendment grammar -- the Framers parsed
> it one way, but will the Supreme Court agree with their analysis?

> Aside from grammar, the semantics of "people" at the time of
> the writing of the Constitution would also indicate the
> Framers meant a collective entity, thus the militia, rather
> than individuals.  It will be interesting to see if the
> plaintiffs (the District of Columbia) make this argument,

The closest the District comes to making this argument is that the right
is conferred on the Militia, not individuals.
p. 11
"The text and history of the Second Amendment confirm that the right it
protects is the right to keep and bear arms as part of a well-regulated
militia, not to possess guns for private purposes. The Second Amendment
does not support respondent's claim of entitlement to firearms for

The problem with this argument is that it fails to recognize that the
framers (and everyone else) have always known the militia to be
essentially everyone who could take up a weapon in defense -- in other
words, "the people".  And other references to "the people" are clearly
references to collections of individuals, not specified groups --
"people" is simply plural of "person":

1st amendment: the right of the people peaceably to assemble
4th amendment: right of the people to be secure in their persons,
houses, papers, and effects
9th amendment: The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the
10th amendment:  The powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to the
states respectively, or to the people.

and other references to people in the body of the Constitution, the
Federalist papers, and other founding documents.

> and
> whether the strict constructionists on the court --e.g.,
> Scalia -- strictly follow their principles and agree.
> Joel

I'd pick at other parts of Dennis's article:

> At 3/16/2008 09:45 PM, Dennis Baron wrote:
> >There's a new post on the Web of Language --
> >
> >Second Amendment grammar -- the Framers parsed it one way,
> but will the
> >Supreme Court agree with their analysis?
> >
> >The U.S. Supreme Court will hear oral arguments this week in a case
> >that could decide whether the Second Amendment - the one about the
> >right to bear arms - permits or prohibits gun control.
> >
> >In 2003, Dick Heller and five other plaintiffs challenged
> Washington,
> >D.C.'s, tough gun control law, claiming that its ban on handguns
> >violated their Second Amendment right to tote a gun.

Heller isn't asking to "tote" [carry?] a gun.  He simply wants to
possess one in the privacy of his home, for self defense.

> >Last Spring, the
> >U.S. Circuit Court of Appeals for the District of Columbia upheld
> >Heller's claim. The Supreme Court then agreed to hear D.C's
> >appeal of the Heller case.
> >
> >The Second Amendment to the U.S. Constitution states,
> >
> >     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.
> >
> >One of the points at issue in the Heller case is whether the
> right to
> >bear arms is related directly to service in a militia, or
> whether it's
> >an individual right conferred on every American. Opponents of gun
> >control favor an individual rights reading, ignoring or
> minimizing the
> >militia's presence in the Second Amendment.

Many opponents of gun control would not ignore or minimize
the militia issue -- they would simply point out that anyone
who is capable of serving in the armed forces is already a member
of the militia.

> >
> >But according to the grammar lessons that the Framers would have
> >learned, the sentence structure of the Second Amendment
> binds the right
> >to bear arms to service in the militia.
> >
> >Want to know more about guns and grammar?  Read the rest at
> the Web of
> >Language
> >

>From the remainder of the article, linked below:
"Add to this the fact that the expression "to bear arms" overwhelmingly
occurs in military contexts, not civilian ones, both in the 18th century
and today:"


"Heller supports this argument [that "bear arms" isn't only meaningful
in a military context] by citing several state constitutions and
legislative texts where the phrase, "bear arms" confers an individual
right. See id. at 11-14. Heller also relies heavily upon a hunting bill
drafted by Thomas Jefferson and introduced by James Madison in 1785
before the Virginia legislature. The bill contains the phrase, "the
recognizance he shall bear a gun...," and Heller believes this indicates
that the term "bear arms" can confer a personal right to bear arms
outside a military setting. See id. at 13 (citing A Bill for
Preservation of Deer (1785))."

> >
> >
> >DB
> >
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