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In order to better explain my incredulity, let me start with a simple legal thought experiment:

Suppose there is a law that states "Driving near schools at speeds above 25mph is prohibited." Now, an animal rights group argues that this law is ambiguous: the word "school" could mean either a building where children are educated or a group of fish. This being a contrived example, there is no way of knowing whether such argument has any merit to it -- but let's presume the judge decides that "in the absence of any clarifying language, we must assume that both points of view have the right to exist, and therefore the law prohibits both driving near children educational institutions, and near groups of fish or other sea animals".

Ok, but what if the law did include some clarifying language. Suppose the law was instead "Safety of children being of utmost importance to our society, driving near schools at speeds above 25mph is prohibited". In this case, I would expect the argument of the animal rights group to fail. After all, replacing "school" with "group of fish" makes the sentence grammatically invalid: two completely unrelated clauses within one sentence. However, if the law stated instead "Since loud noises cause suffering to fish and marine animals, driving near schools at speeds above 25mph is prohibited", then the situation would be quite the opposite: now the judge will be forced to conclude that the law only applies to fish schools, not to children.


Sorry for this lengthy preamble, let's get to the actual question. The Second Amendment of the US 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.

The word which I find ambiguous here is the second "the". Being the most common word in English, it obviously has multiple meanings, but let's focus on just 2:

  1. The third meaning, "used to make generalized reference to something rather than identifying a particular instance". In this case "the people" would mean either people in general, or it could also refer to the citizens of US only.
  2. The first meaning, "denoting one or more people or things already mentioned or assumed to be common knowledge". In this meaning, a synonym for "the" is "this" or "these", i.e. "the people" would mean "these people".

Having these 2 competitive definitions of "the people", let's replace each of them with its synonym and see which one makes better sense:

A well regulated Militia being necessary to the security of a free State, the right of all citizens of the United States to keep and bear Arms shall not be infringed.

or

A well regulated Militia being necessary to the security of a free State, the right of these people people to keep and bear Arms shall not be infringed.

Now, one of these forms is perfectly reasonable. The other consists of two completely unrelated clauses joined by a comma -- a comma splice -- which is a serious grammatical error (a first-degree felony according to Roger Jones).

So my question is this: why did the US Supreme Court decide in Columbia v. Heller to defend the grammatically questionable reading of the Second Amendment, and disregard the logical one? Why commit a "grammatical felony"?

closed as unclear what you're asking by James K, divibisan, Rupert Morrish, Koru, Sjoerd May 17 at 19:42

Please clarify your specific problem or add additional details to highlight exactly what you need. As it's currently written, it’s hard to tell exactly what you're asking. See the How to Ask page for help clarifying this question. If this question can be reworded to fit the rules in the help center, please edit the question.

  • I've voted to close this question as unclear. Which of the alternative constructs are you representing as 'perfectly reasonable'? Is it the implication that the protections of the Second Amendment only apply to the Militia? If that is the case, have you examined the other uses of "of the people" in the Constitution, or the original understanding of what the militia was? – Drunk Cynic Jul 25 '18 at 8:21
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    This Q. would benefit from some other source corroborating the comma splice interpretation, perhaps with a quote and a URL. I've browsed the text of the DISTRICT OF COLUMBIA ET AL. v. HELLER, and if the alleged distinction was made, it's buried in the text. – agc Jul 25 '18 at 13:08
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    I'm voting to close this question as off-topic Because it should be migrated to Law.SE – JonathanReez Sep 16 '18 at 2:00
  • The clause preceding the comma is not an independent clause. There is no comma splice in the second amendment, no matter how you interpret it. – phoog Sep 16 '18 at 10:04
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    And I'm not sure that even that would shore up that argument. "Safety of children being of utmost importance to our society, driving near groups of fish at speeds above 25mph is prohibited" isn't necessarily a grammatically-incorrect sentence. It would just mean "We want to keep children safe, so you can't drive quickly near fish". It's a stupid way of keeping children safe, and you might as well say "We want to keep children safe, so you can't paint your house yellow or blue" and have just as much effect on safety, but it is still a correct sentence. – Richard Ward Sep 17 '18 at 15:40
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A couple things:

  1. Militia referred to all able-bodied men in the community. As such, "member of militia" and "citizens" were mostly synonymous if you limit citizens to people eligible to vote at that time (free men; not slaves, women, or children). Obviously the definition of citizens has expanded since then.

  2. A natural synonym for "well-regulated" at that time would have been "well-organized." I.e. rather than indicating "covered by rules" as it would mean modernly, it meant that the militia was capable of providing for the common defense because it was well armed and trained in the use of those arms. You could not have such a militia if the members had no weapons.

An example source discussing these two issues.

Anyway, if we rewrote the second amendment with more modern definitions, it might say

A population possessing arms and trained in their use being necessary to the security of a free State, the right of all citizens of the United States to keep and bear Arms shall not be infringed.

See how the preamble in that form explains but does not limit the rest of the statement? I kept your wording for the part after the comma.

They were basically saying that people could not organize themselves for defense properly without weapons. As such, the right to keep and bear weapons could not be infringed.

There are some people who believe that this is an antiquated view. After all, democracies rarely require replacement by revolution, and it's not like the modern United States borders hostile peoples who might attack suddenly. As such, perhaps this right is no longer necessary in this form. However, that doesn't change the fact that the constitution when passed meant it in exactly this way.

The constitution allows for changes. There is an amendment process that can modify it. That process has not been used here because it requires a greater consensus (two thirds of each chamber of Congress and the concurrence of three quarters of the states) than currently exists.

  • It should be pointed out that the previous supreme court decisions have affirmed that the constitution does not give the citizens rights. The constitution prevents government from infringing upon rights. – hszmv Jul 27 '18 at 19:54
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    Your "source" appears to be a conservative advocate (unless there's more than one Daniel J Schultz). talkguests.com/danielschultzbio.htm In other words, 100% bias. – userLTK Sep 15 '18 at 23:31
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    Your premise is patently untrue, as can be seen in the various Militia Acts, and related court decisions, which make a distinction between those qualified for and registered for potential callup in times of need (all able bodied males) and those actually actively serving in said militia. This can be further seen in restrictions of the time on who can have arms, including those by law registered for, and simultaneously barred from, service in the militias (non-citizens, Brits, mentally ill etc), which is consistent with the 2nd applying equally to all persons, citizen or not. – toonarmycaptain Dec 15 '18 at 18:16
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    @Pasha - and Heller went against centuries of many-times established precedent saying otherwise. It's currently the law, but it is a pretty radical, activist ruling, no matter how much Scalia fans want to claim he is an "originalist." – PoloHoleSet May 14 at 14:57
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    Very often militias of the time, and modern militias in other nations, kept the "people's" weapons in a consolidated armory. Heck, it was the British desire to make a grab at just such a militia armory in Concord that started the shooting in the Revolutionary War. So having an armed militia does not require individual citizen ownership/possession of weapons. In Switzerland, they are a militia-based system, with weapons being with the individuals, but the ammunition for those weapons kept in the militia armory. – PoloHoleSet May 14 at 15:02
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Excerpt on the summary from the Wikipedia page on the case:

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.

As you can see in a, the court is effectively holding the opposite of your assertion, i.e. that the prefatory clause in fact does not inform the scope of the operative clause. While judges do interpret the law under the assumption that there are no mistakes in the writing, they also interpret it in the appropriate context. So, in your school example, it is unlikely the animal activists would win the first case, assuming the line was part of a larger law clearly relating to educational facilities and not animals. This is supported by b - your interpretation would effectively make the Amendment non-functional, since it would just be saying "anyone the government defines as a member of the militia shall have the right to bear arms." As you can see from the reasoning, the historical record is very clear that the purpose of the Amendment was specifically to disallow the government from ruling without the consent of the populace by disarming them.

If you'd like to read more, here's the full opinion.

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    As long as it is the State government that decides who belongs to the militia, I see no contradiction with (b): the federal government will be unable to disarm any people that the state has decided to arm. And of course, the State is perfectly allowed to declare that all its citizens are eligible to be the Militia. – Pasha Jul 25 '18 at 19:19
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    The problem with that is that it goes against, literally, centuries of precedent that ruled otherwise, so it's not a particularly straightforward case. -1 for looking at this ruling in isolation and ignoring the extensive body of cases on the same subject. – PoloHoleSet Jul 25 '18 at 22:36
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    @Pasha The caveats you've proposed specifically violate the Constitution, and ignores what militia meant at the time of ratification, with specific reference to Federalist 46 and the 10th amendment. – Drunk Cynic Jul 26 '18 at 0:10
  • @PoloHoleSet Then an additional reference reflecting the individual right to keep and bear arms can be found in the dismal decision from Dred Scott V. Sandford. – Drunk Cynic Jul 26 '18 at 0:13
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    @PoloHoleSet The question specifically asks about Heller. Downvoting someone for addressing the specific case that the question asks people to discuss is bizarre. Unless, by "-1", you meant you were downvoting the question, rather than answer. – Acccumulation Jul 26 '18 at 20:58
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In addition to all the textual explanations, I think you have to look at politics and the practical impact of the Second Amendment.

The original intent of the 2nd Amendment was that any citizen could own any kind of "arms", which meant any militarily useful weapon or armour. At the time the biggest and most destructive weapon of any kind was a warship, and some of those were indeed in private hands. However during the 20th Century this became an increasingly impractical idea. Imagine, for a moment, a world in which firearms such as shoulder-launched anti-aircraft missiles could be legally carried by any citizen. (Hint: its probably going to look like this).

US federal and state laws severely restrict heavy military weapons: in some states you can apply for permission to posses them, but nowhere is this treated as a right. It was politically and practically infeasible for the Supreme Court to find this unconstitutional, but they clearly didn't want to find that there is no right to keep and bear any firearm whatsoever. So they had to find an interpretation that would protect non-military hand weapons while still keeping a government monopoly on real firepower. To do this they had to do two things:

  1. Explain why the prefatory clause wasn't important, and hence allow the federal government to carry on banning military weapons.

  2. Find a new justification for keeping handguns which didn't extend to military weapons.

  • "Constitutionally protected right" is distinctly different from Constitutional right. – Drunk Cynic May 14 at 17:41
  • Agreed. I've amended the wording, and also clarified the description of the restrictions on heavy weapons. Hopefully this is now clearer. – Paul Johnson May 16 at 14:48
4

A small point, but as an editor for over 40 years, my eyes glued to it: The comma in the 2nd does not represent a comma splice. The prefatory nominative PHRASE (it's only a "clause" to lawyers -- grammarians would rap their knuckles over that) can perfectly well be separated from the independent CLAUSE by a comma.

I'm not insensitive to comma splices (although the Chicago Manual of style has lightened up on them). I almost got into a fist fight over one with one of my writers a decade ago...

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    Welcome to the Politics Stack Exchange. I've down voted your answer because you don't include the timeliness of the grammar rules you've applied. – Drunk Cynic Sep 15 '18 at 22:53
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    @DrunkCynic The question's logical flaw is that it falsely claims that the second amendment is ungrammatical. It is not necessary to invoke historical rules of grammar to refute that claim. You might want to look up the word "timely": it doesn't mean what you appear to think it means. – phoog Sep 16 '18 at 10:17
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    It's not clear to me what's being said here. The prefatory "clause" is not a clause at all, to a grammarian. It has no predicate. It is a phrase. To be specific, it is a nominative absolute phrase that contains a participial phrase ("being necessary..."). A comma has been the proper punctuation to separate such a phrase from an independent clause, for centuries. Comma splices occur when two independent clauses are joined by a comma. That is not the case here. The grammar and punctuation of the 2nd are correct, and always have been. – Ed Huntress Sep 16 '18 at 15:43
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  1. Interpreting "the people" as meaning "the militia" is not consistent with how English is used.

  2. The two clauses are not unrelated. Militias are made up of people. If people have guns, militias have guns.

  3. "Independent clauses" doesn't mean "unrelated clauses". While there are some contexts, such as statistics, in which "unrelated" can be treated as being a synonym for "independent", this isn't statistics, this is linguistics. If you have clicked on the phrase "independent clauses" in the link you provided, or even just hovered over it, you would have seen "An independent clause (or main clause) is a clause that can stand by itself as a simple sentence." The clause "A well regulated Militia being necessary to the security of a free State" is not a valid sentence by itself, so it is not an independent clause, and this is not a comma splice. Saying that two clauses are independent because they are unrelated is like saying that the sentence "There's absolutely nothing wrong with Alice" is in the present perfect (because "perfect" means "nothing wrong"), or "Bob just sat in a chair, neither saying nor doing anything" is in the passive voice (because "passive" means "not doing anything").

  4. You should be explicit about your reasoning. It took me quite a while to realize what your error was, to wit, that you were considering "independent" and "unrelated" to be interchangeable. It would really have helped if, rather than simply providing a link to the wikipedia page, you had explained how you thought it showed that this was a comma splice.

  5. "After all, replacing "school" with "group of fish" makes the sentence grammatically invalid: two completely unrelated clauses within one sentence." Grammar is about syntax, not the content. A non sequiturs does not make a sentence ungrammatical.

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    Focus less on how english is used, and more on how it was used. – Drunk Cynic Jul 26 '18 at 21:01
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    @DrunkCynic While it's possible that "the" was used that way 200 years ago, the OP has presented no evidence whatsoever for it, and is therefore is not a hypothesis that needs to be considered. As for the "comma splice" issue, the OP cites only contemporary sources, and thus it is appropriate to refute the argument based on contemporary usage, especially since the argument would be nonsensical if based on usage specific to 200 years ago. – Acccumulation Jul 26 '18 at 21:07
  • At the time of the Founding Fathers, firearms, especially as used by militias, were generally housed in community armories. The modern Swiss militia model has the ammunition housed in the community armory. So, while if people have guns, militias do, it does not follow that people must have guns for militias to have them. So if it says the right of "the People" to bear arms in the context of a militia, it could very well be the intent that the federal government not mess with militia armories, which would not insure any kind of individual ownership right. – PoloHoleSet Jul 26 '18 at 21:10
  • Sorry if I confused the terminology -- so it is a non sequitur, not a comma splice? Still a grammatical (or semantical?) error though. Your point that Militia is a subset of the People is valid, but it doesn't refute the main point. Consider an example: "Paris being the capital of France, all cities must use French as their official language". Here "Paris" is a subset of "all cities", yet the entire sentence is logically unsound. – Pasha Jul 26 '18 at 21:39
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    @Pasha The 2A is not a syllogism, it's a policy. If the Constitution had declared French to be the official language of the US, and cited the fact that people in Paris speak French, calling that "logically unsound" would be a category error. It is not attempting to logically prove that the official language is French, simply explaining the Framers' thinking. You may disagree that people in Paris speaking French is sufficient justification for making French the official language, but that's your opinion. – Acccumulation Jul 26 '18 at 22:24

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