Why did the Supreme Court decide to disregard the prefatory clause of the 2nd amendment? [closed]

Question

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"?

Answer 1

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.

Answer 2

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.

Answer 3

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.

Answer 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...

Answer 5

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.