2nd Amendment: the long-simmering comma war

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.

Clause and Effect

Excerpt:

The circuit court’s opinion is only the latest volley in a long-simmering comma war. In a 2001 Fifth Circuit case, a group of anti-gun academics submitted an amicus curiae (friend of the court) brief arguing that the “unusual” commas of the Second Amendment support the collective rights interpretation. According to these amici, the founders’ use of commas reveals that what they really meant to say was “a well-regulated militia ... shall not be infringed.”

Now that the issue is heading to the Supreme Court, the pro-gun American Civil Rights Union is firing back with its own punctuation-packing brief. Nelson Lund, a professor of law at George Mason University, argues that everything before the second comma is an “absolute phrase” and, therefore, does not modify anything in the main clause. Professor Lund states that the Second Amendment “has exactly the same meaning that it would have if the preamble had been omitted.”

Refreshing though it is to see punctuation at the center of a national debate, there could scarcely be a worse place to search for the framers’ original intent than their use of commas. In the 18th century, punctuation marks were as common as medicinal leeches and just about as scientific. Commas and other marks evolved from a variety of symbols meant to denote pauses in speaking. For centuries, punctuation was as chaotic as individual speech patterns.

The situation was even worse in the law, where a long English tradition held that punctuation marks were not actually part of statutes (and, therefore, courts could not consider punctuation when interpreting them). Not surprisingly, lawmakers took a devil-may-care approach to punctuation. Often, the whole business of punctuation was left to the discretion of scriveners, who liked to show their chops by inserting as many varied marks as possible.

Another problem with trying to find meaning in the Second Amendment’s commas is that nobody is certain how many commas it is supposed to have. The version that ended up in the National Archives has three, but that may be a fluke. Legal historians note that some states ratified a two-comma version. At least one recent law journal article refers to a four-comma version.

Comment: My hope is that the SCOTUS will uphold the Appeals Court and invalidate D.C.'s gun ban