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“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.” — Text of the Second Amendment

When Supreme Court justices sit down Nov. 9 to ponder whether they should rule on the constitutionality of Washington, D.C.’s strict gun control ordinance, they should be forewarned that they are stepping into a quagmire. No, not the political quagmire over gun control. Another suddenly intense debate is enveloping the case — this one over what all those commas in the Second Amendment meant in late 18th-century America. It may sound way beyond trivial, but it’s not: The grammar war is under way. You can blame the U.S. Court of Appeals for the D.C. Circuit for igniting this esoteric debate. It ruled on March 9 that because of the Second Amendment’s second comma, the first half of the amendment — the militia half — is basically a throat-clearing preface that does not qualify the individual right to bear arms that the second half protects. Judge Laurence Silberman, who wrote the 2-1 decision, went on to conclude that the District’s handgun ban violates that individual right. Grammarians and gun control backers quickly pounced, saying the D.C. Circuit got it flat wrong. Gun rights advocates have hustled to counter that view. As the District’s appeal of the Silberman ruling, now titled District of Columbia v. Heller, has made its way to the Supreme Court, the grammar issue is a significant subtext. “The first clause is not precatory surplusage,” D.C. Attorney General Linda Singer insists in her brief. After meeting privately on the case, along with dozens of others, on Nov. 9, the Court may announce within days whether it will grant review. “I seriously doubt that the Supreme Court will base its decision on the rules of grammar in 1791,” leading gun control advocate Dennis Henigan says. “But it has certainly become a relevant issue.” Henigan, legal director of the Brady Center to Prevent Gun Violence, accuses Silberman of “slicing and dicing” the amendment, in violation of the 200-year-old rule that every word and comma in the Constitution has meaning. The first thing to know about commas back then, says University of Illinois English professor Dennis Baron, is that there were lots of them. The one-sentence Second Amendment contains three, at least in the version on display at the National Archives, and in the online version that the Supreme Court’s own Web site links to. “If you wrote the Second Amendment in your freshman college theme [today], the teacher might send it back circled in red,” Baron says. The Silberman opinion, like other texts over the years, omits the third comma from its recitation of the Second Amendment at one point in the decision. Scribes in the 18th century often threw commas in to signal a pause for breath, says Baron, and he thinks that explains commas one and three. Most of the debate rages over the second comma and what it signifies grammatically. Baron, who wrote a Los Angeles Times column on the subject March 22, says that then and now, the comma makes what precedes it an absolute clause, creating a cause-and-effect relationship with the clause that follows. “The absolute clause directs how we interpret the events of the main clause,” Baron states, offering a modern-day example: “The rain being over, we were able to open the windows again.” Under this view, the Second Amendment is really about militias, and the right to bear arms serves the needs of militias — rather than articulating an individual right. Such an interpretation could save the D.C. gun ban and limit the force of the Second Amendment. But it’s wrong, says George Mason University School of Law professor Nelson Lund, who wrote an article for the school’s Civil Rights Law Journal offering exactly the opposite interpretation of the second comma. In Lund’s view, the militia part of the amendment is “grammatically independent of the rest of the sentence,” and does nothing to qualify the command contained in the second part. “The Second Amendment has exactly the same meaning that it would have had if the preamble had been omitted.” Lund’s assertion mirrors Silberman’s view, and would energize the Second Amendment as embodying an individual right. It is difficult to predict how Supreme Court justices, some of whom claim deep loyalty to the precise original words of the Constitution, will referee the grammar debate. The ruckus has led one respected scholar to make fun of both sides by suggesting whimsically that if the commas in the Second Amendment are as important as claimed, maybe it should just be junked. The version that Congress approved in 1789 had three commas, William & Mary Marshall-Wythe School of Law professor William Van Alstyne notes in an article in the latest Green Bag law review. But some of the states ratified a two-comma version, he adds, suggesting with tongue in cheek that the discrepancy may be so critical that it should void ratification. “Perhaps it is entirely possible that there is no Second Amendment as such,” wrote Van Alstyne. “�Tis a bold thought! (Perhaps far too bold by half .�.�.).”


Tony Mauro can be contacted at [email protected].

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