> Literary Analysis
Right off, Schulman is in error, since he is focussing on the ABRIDGED 2nd Amen! All that matters to him is the second half, as the Militia Clause is of no importance to him. But even further, he ignores the supremely relevant material from the ORIGINAL draft of the the Amen that Madison submitted to Congress, and which the House approved, that explains what Madison MEANT by the term "bearing arms," and also ignores what the Congress did to further emphasize the Militia's centrality to the 2nd Amen's purpose and meaning.
I don't know if was Schulman who decided to use the phrase "Literary Analysis," but whoever did is showing the erroneous approach Schulman is taking: the 2nd Amen is NOT a piece of "literature" that can be analyzed in a literary vacuum; it is a legal and historical document, written by politically-minded 18th Century memebers of an American "aristocracy" with particular political and legal purposes in mind, NOT to craft some piece of literature fit solely for grammatical parsing.
> If you wanted to know all about the Big Bang, you'd ring up Carl
> Sagan, right?
I'd prefer to speak with the person who ORIGINATED the term and the concept, perhaps Stephan Hawking. Better yet, I'd like to ask GOD, or whoever CREATED the Big Bang!
> And if you wanted to know about desert warfare,
> the man to call would be Norman Schwarzkopf, no question about
> it.
If I wanted to know who ORIGINATED modern desert warfare, I'd look up Rommel, Montgomery, or Patton. For even earlier context, I'd have to look up Lawrence of Arabia, Napoleon, or Von Clauswitz. Caeser, Hannibal, or Alexander the Great would get me closer to the FUNDAMENTALS of desert warfare.
> But who would you call if you wanted the top expert on
> American usage, to tell you the meaning of the Second Amendment
> to the United States Constitution?
NOT some narrow grammarian who is apparently ignorant of 18th Century history, etymology, the judiciary, constitutional law, and ALL the other factors that go into interpreting and analyzing the 2nd Amen! I'd start with an award-winning historian, like Garry Wills, or a top constitutional legal scholar, like David Yassky, before I'd ask someone who merely parses 20th Century sentences for a living.
Ideally, I'd ask the MAN who ORIGINATED the 2nd Amen! That would be James Madison! And we HAVE the ORIGINAL draft he submitted to Congress to tell us, in no uncertain terms, what HE meant by "bearing arms." And we have the words of George Mason, who inspired Madison to draft the Bill of Rights, as to WHY the need for a Militia Amendment! And we have the debates in Congress over Madison's draft, which shows what THEY were concerned with! Why ask some modern-day grammarian, who was neither there nor even seems familiar with the historical and linguistic context of the Amendment's writing and passage?
> That was the question I asked A.C. Brocki, editorial coordinator
> of the Los Angeles Unified School District and formerly senior
> editor at Houghton Mifflin Publishers -- who himself had been
> recommended to me as the foremost expert on English usage in the
> Los Angeles school system.
Would that be 18th CENTURY USAGE? The usage of men like Madison, Mason, Adams?
> Mr. Brocki told me to get in touch
> with Roy Copperud, a retired professor of journalism at the
> University of Southern California and the author of "American
> Usage and Style: The Consensus.
Does THAT include 18th CENTURY USAGE?
> A little research lent support to Brocki's opinion of Professor
> Copperud's expertise.
>
> Roy Copperud was a newspaper writer on major dailies for over
> three decades before embarking on a distinguished 17-year career
> teaching journalism at USC. Since 1952, Copperud has been
> writing a column dealing with the professional aspects of
> journalism for "Editor and Publisher", a weekly magazine
> focusing on the journalism field.
And what does he know of 18th Century history, particularly the American Revolutionary and Federal eras, 18th Century etymology and legal terms of art, constitutional law, and 200 years of post-constitutional judicial review? From the answers below, not much! Asking a specialist in one narrow field like grammar to analyze something as complex as a Constitutional Amendment, is like asking a proctologist to diagnose and perform surgery on a brain tumor... although for some here that would be the same difference! Schulman is either ignorant or disingenuous; his "expert" is out of his league discussing law, logic, and 18th Century language usage.
> He's on the usage panel of the American Heritage Dictionary, and
> Merriam Webster's Usage Dictionary frequently cites him as an
> expert. Copperud's fifth book on usage, "American Usage and
> Style: The Consensus," has been in continuous print from
> Van Nostrand Reinhold since 1981, and is the winner of
> the Association of American Publisher's Humanities Award.
> That sounds like an expert to me.
To write an essay on the current meaning of the word "journalism" perhaps, but NOT to opine knowledgeably on the legal, historical, etymological, or judicial facets of Madison's 1789 draft amendment! Anymore than he might be able to explain what Shakespeare meant by the sentence "Get thee to a nunnery!" in Hamlet, UNLESS he was aware that the word, in that usage, IMPLIED a brothel!
> After a brief telephone call to Professor Copperud in which I
> introduced myself but did not give him any indication of why I
> was interested, I sent the following letter:
What follows shows Schulman's OWN ignorance or disingenuous nature; by limiting the discussion ONLY to grammatical construction, and NOT asking about the OTHER facets I've mentioned, he forces Copperud to NOT address such matters as 18th Century usage or word meanings, or how the Courts MUST interpret LAWS in their ENTIRETY, and may NOT consider any part as "subordinate" or "optional" or "merely explanatory."
> "I am writing you to ask you for your professional opinion as an
> expert in English usage, to analyze the text of the Second
> Amendment to the United States Constitution, and extract the
> intent from the text.
This is BOGUS! Without a historical, liguistic, and legal context to draw from, any "extraction" of "intent" is mere hypothetical supposition. IF Copperud or Schulman DON'T know what Madison MEANT by "bearing arms" the exercise is futile and ludicrous!
> "The text of the Second Amendment is, 'A well-regulated Militia,
> being necessary for the security of a free State, the right of
> the people to keep and bear Arms, shall not be infringed.'
At LEAST, Schulman uses the "canonical" version of the 2nd Amen, the one IN the BOR encased in the National Archives, the one in the United States Gazette of Sept. 23, 1789, the one forwarded on to the states for ratification, as shown in the copies printed in New York; some disingenuous obfuscators claim that there IS no comma between Arms and shall, or between Militia and necessary, which CAN affect the grammatical analysis to some degree.
> "The debate over this amendment has been whether the first part
> of the sentence, 'A well-regulated Militia, being necessary to
> the security of a free State', is a restrictive clause or a
> subordinate clause, with respect to the independent clause
> containing the subject of the sentence, 'the right of the people
> to keep and bear Arms, shall not be infringed.'
THIS is a bogus and irrelevant distinction! In LAW, specifically in Constitutional interpretation, there ARE NO subordinate clauses! Chief Justice John Marshall, in Marbury v. Madison, stated that there IS NO "surplusage" in the Constitution! This "debate" is ONLY being promulgated by those who CAN'T or WON'T accept that the 2nd Amen MUST be read and understood IN ITS ENTIRETY!
Had they wanted to be more broad and inclusive, they could have "clearly" written something as simple as "The right of individuals to own and carry guns shall not be infringed." That they didn't write that, in itself speaks volumes. The first two phrases are not window dressing, or "subordinate" clauses, in the legal sense, rather than the grammatical sense. The ENTIRE 2nd Amen is rightly seen as a militia amendment, not a gun amendment, particularly when the phrase "bear arms" is properly understood as MEANING "serve as soldier," which is the RIGHT the particular individuals who qualify to serve have -- to serve in the STATE-RUN militias -- and it is THAT right the feds can't infringe upon.
The Bill of Rights, indeed the entire Const, is SILENT on the ownership and carrying of GUNS! You WON'T find the words "own and carry guns" in the Const. The term "keep and bear arms" does NOT mean THAT! It means to serve in the militia (OED), or render military service in person (Madison):
The best evidence for the Second Amendment meaning of "bear arms" is in the original draft of the Amendment proposed in the First Congress by James Madison: "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person."
In the last clause of this version (the conscientious objector provision), Madison clearly used the phrase "bearing arms" to refer solely to using weapons as part of military service usage. It is implausible to contend that virtually the same phrase "bear arms" should have a different, much broader meaning elsewhere in the very same sentence. (David Yassky)
Madison's use of the phrase "bear arms" to refer to military activities is echoed in other contemporary usages; these usages were standard at the time the Second Amendment was adopted.:
New Hampshire Constitution of 1784: "No person who is conscientiously scrupulous about the lawfulness of bearing arms, shall be compelled thereto, provided he will pay an equivalent."
Constitutional amendment proposed by Rhode Island's 1790 ratifying convention: "That the people have a right to keep and bear arms; ... That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead."
Do you think that this last one means that a wealthy Quaker could pay to have his butler march by his side to tote his rifle around for him on the battlefield or parade grounds?
Did Quakers have "religious scruples" about "carrying guns" out to the woods to hunt turkeys?
Does one "bear arms" against a rabbit?
The Oxford English Dictionary defines "to bear arms" as meaning "to serve as a soldier, do military service, fight." 1 OED 634 (J.A. Simpson & E.S.C. Weiner eds., 2nd ed. 1989) (hereinafter, "OED"). It defines "to bear arms against" as meaning "to be engaged in hostilities with." 2 id. at 21. As an exemplary use of the phrase in 1769, the OED gives "An ample pardon . . . to all who had born arms against him," and the exemplary use from 1609 is "He bare arms, and made weir against the king." Id"
In the mid-19th century the original usage of "bear arms" was still understood:
Aymette v. State, 2 Humphreys 154 (Tenn. 1840)
"The 28th section of our bill of rights provides "that no citizen of this state shall be compelled to bear arms provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane."
> "I would request that your analysis of this sentence not take
> into consideration issues of political impact or public policy,
> but be restricted entirely to a linguistic analysis of its
> meaning and intent.
The exact opposite of what Madison and his collegues did! Do you think Madison was sitting around thinking how his words would be parsed 200 years hence by a pedant, rather than how the anti-Federalists of his day would reconsider ratifying and supporting the Constitution and new Federal government because he kept his word to provide a BOR that would address their "political" and "public policy" concerns? Or that slave states were concerned that without a strong militia they would be subject to slave uprisings? Or that the untested Federal government might give rise to a national tyrant who could use a standing army to impose his will over states with weak or non-existant militias? What do YOU think was in Madison's mind?
> Further, since your professional analysis
> will likely become part of litigation regarding the consequences
> of the Second Amendment, I ask that whatever analysis you make
> be a professional opinion that you would be willing to stand
> behind with your reputation, and even be willing to testify
> under oath to support, if necessary."
Swearing to a WRONG opinion truly held doesn't make it any LESS wrong!
> My letter framed several questions about the test of the Second
> Amendment, then concluded:
>
> "I realize that I am asking you to take on a major
> responsibility and task with this letter. I am doing so because,
> as a citizen, I believe it is vitally important to extract the
> actual meaning of the Second Amendment.
To do so without going to MADISON's own words (see above), or MASON's own words, is absurd!:
George Mason articulated the Anti-Federalist fear that the Constitution did not sufficiently protect the state militias from destruction, and the 2nd Amen was drafted later to address these ratification concerns:
"The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless - by DISARMING them. Under various pretenses, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them..."
3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. 1836), at 379. The Anti-Federalist concern, therefore, was that the Congress might allow the state militias to die simply by failing to arm them, NOT by confiscating existing weapons.
The phrase "disarm" was clearly used in the 2nd Amen and ratification debates to mean "refuse to provide arms for" the militias. The debates among the states reflected a fear that giving Congress excessive power over the militia would enable Congress not only to regulate the militia, but also to disarm it completely, leaving the states defenseless against the federal government. In this sense, the state militias were thought to function as the "bulwarks of liberties." Statement by Gov. Randolph, in 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 400 (1836; rprt.1941).
> While I ask that your
> analysis not be affected by the political importance of its
> results, I ask that you do this because of that importance."
This is akin to analyzing "e=mc2" by whether the letters are upper or lower case, and in what font, rather than whether its application can create a bomb that can kill millions!
> After several more letters and phone calls, in which we
> discussed terms for his doing such an analysis, but in which we
> never discussed either of our opinions regarding the Second
> Amendment, gun control, or any other political subject,
> Professor Copperud sent me the follow analysis (into which I
> have inserted my questions for the sake of clarity):
>
> [Copperud:] "The words 'A well-regulated militia, being
> necessary to the security of a free state,' contrary to the
> interpretation cited in your letter of July 26, 1991,
> constitutes a present participle, rather than a clause. It is
> used as an adjective, modifying 'militia,' which is followed by
> the main clause of the sentence (subject 'the right', verb
> 'shall').
"Main" clause is a grammatical, NOT a legal term; there IS no subordinate "clauses" in Constitutional interpretation... the law MUST be interpreted in its entirety:
"With obvious purpose to assure the continuation and render possible the effectiveness of such forces [the Militias] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." (US v Miller, SCOTUS, 1939)
Thus the NFA is not unconstitutional, and the 2nd Amen didn't protect Miller's right to transport his weapon, since it wasn't shown how that weapon, "at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia."
> The to keep and bear arms is asserted as an essential
> for maintaining a militia.
Since "to keep and bear arms" IS what militiamen DO! They SERVE IN (bear arms) and MAINTAIN the readiness of (keep arms) THE MILITIA! Look at Madison's usage, or the OED's! It's axiomatic that the militia can't be maintained IF the states have their right to maintain their militias infringed by the federal government!:
HICKMAN v. BLOCK No. 94-55836. United States Court of Appeals, Ninth Circuit. Decided April 5, 1996.
We follow our sister circuits in holding that the Second Amendment is a RIGHT held by the states, and does not protect the possession of a weapon by a private citizen.
Consulting the text and history of the amendment, the Court found that the right to keep and bear arms is meant solely to protect the RIGHT OF THE STATES to keep and maintain armed militia.
The Court's understanding follows a plain reading of the Amendment's text. The Amendment's second clause declares that the goal is to preserve the security of "a free state;" its first clause establishes the premise that a "well-regulated militia" is necessary to this end. Thus it is only in furtherance of state security that "the right of the people to keep and bear arms" is finally proclaimed.
> "In reply to your numbered questions: [Schulman:] "(1) Can the
> sentence be interpreted to grant the right to keep and bear arms
> solely to 'a well-regulated militia'?"
>
> [Copperud:] "(1) The sentence does not restrict the right to
> keep and bear arms, nor does it state or imply possession of the
> right elsewhere or by others than the people; it simply makes a
> positive statement with respect to a right of the people."
The courts disagree (see above)! Copperud's ignorance of Madison's usage of the term "bear arms" is obvious! As is his ignorance of the term "people":
Gun advocates claim that the "right of the people" to keep and bear arms is distributive, the right of every individual taken singly. It has that sense in, for instance, the Fourth Amendment ("the right of the people to be secure in their persons"): But the militia as "the people" was always the populus armatus, in the corporate sense (one cannot be a one-person militia; one must be formed into groups). Thus Trenchard calls the militia "the people" even though as we have seen, the groups he thought of were far from universal. The militia literature often refers to "the great body of the people" as forming the militia, and body (corpus) is a necessarily corporate term. The great body means "the larger portion or sector of" (OED, "great," 8:c). This usage came from concepts like "sovereignty is in the people." This does not mean that every individual is his or her own sovereign. When the American people revolted against England, there were loyalists, hold-outs, pacifists who did not join the revolution. Yet Americans claimed that the "whole people" rose, as Madison wrote in the Federalist, since the connection with body makes "whole" retain its original, its etymological sense wholesome, hale, sound (sanus). The whole people is the corpus sanum, what Madison calls "the people at large." Thus "the people" form militias though not every individual is included in them. (Historian Garry Wills)
John Adams, who was as important to the Massachusetts Declaration of Rights as Mason was to Virginia's, borrowed the style of the Quaker State's declaration when he drafted the Declaration of Rights that stood for ratification with the 1780 constitution. "The people," he wrote, "have a right to keep and to bear arms for the common defence." By "the people," John Adams meant the militia. "The public sword, without a hand to hold it, is but cold iron," he noted some years later, and "the hand which holds this sword is the militia of the nation."... (Lawrence Cress)
> [Schulman:] "(2) Is 'the right of the people to keep and bear
> arms' granted by the words of the Second Amendment, or does the
> Second Amendment assume a preexisting right of the people to
> keep and bear arms, and merely state that such right 'shall not
> be infringed'?"
>
> [Copperud:] "(2) The right is not granted by the amendment; its
> existence is assumed. The thrust of the sentence is that the
> right shall be preserved inviolate for the sake of ensuring a
> militia."
And the RIGHT is the JUS MILITIAE right of citizens to participate in their state or nation's military function, as opposed to leaving it only to professional solidiers who serve as hired retainers of the sovereign. Of course, historically and legally, this "right" preceded the Constitution, since state militias pre-dated the Revolutionary War! What Mason and Henry wanted was to make sure that the pre-existing right of the states to keep and maintain their militias was not infringed by the new federal government, and thus the right of those qualified to serve in the militia was not made moot by their failure to be armed (see Mason above).
IF the "right of the people" meant EVERYONE who was PART of the people had the right individually, as they do in, say, the 1st Amen, then logic wouldn't be tortured by the following extrapolations.
IF any PART of a whole possesses the same and full rights granted TO the whole, in this case, reputedly, "the people," would the following ENTIRE sentences make ANY sense in 1792, even to the comprehension level of a 10-year-old?:
A well regulated Militia, being necessary to the security of a free State, the right of women to keep and bear Arms, shall not be infringed.
A well regulated Militia, being necessary to the security of a free State, the right of blacks to keep and bear Arms, shall not be infringed.
A well regulated Militia, being necessary to the security of a free State, the right of felons to keep and bear Arms, shall not be infringed.
A well regulated Militia, being necessary to the security of a free State, the right of cripples to keep and bear Arms, shall not be infringed.
In 1792, did an individual black man have a US BOR right to "keep and bear arms"... OR own a gun (two different things)? Did a woman? Did a 10-year-old? Did a felon? Did a non-citizen? Did a cripple or mental-defective? Did an Indian?
And don't just say "That's not what it says; it says 'the people,' and it's the right to own a gun, not serve in the militia." That just begs the question. IF any one of these sub-classes of the people enjoy the same rights as the WHOLE people do, then they should be able to be placed accurately in the above sentence, and each sentence would make the same perfect sense.
In the above sentences, explain how the right of a felon or cripple to own a gun (and they WOULD have that right IF each of these sub-classes has individual rights of, for example, freedom of speech and the right not to incriminate oneself, AND the right to "keep and bear" were ALSO an individual right, independent of the "collective" right of the militias and the states) furthers the goal of a secure free state IF felons and cripples CAN'T serve in the up-front mentioned "well regulated Militia"?
But since "keep and bear arms" MEANS militia service, it is clear the right does NOT apply to felons, cripples, and, in 1792, women and blacks, and thus "the people" in the clause are NOT everyone, but only those who CAN and WILL serve in the militia.
Let's clear it up. EACH individual who meets the militia qualification (able-bodied, male, age range, etc.) HAS THE RIGHT to "keep and bear arms" which means to serve as a citizen-soldier (Jus Militiae) in the state militia, and the DUTY (in the MA1792) to enroll and register himself and his PRESCRIBED weapons each year at muster, or face penalties.
Those individuals who qualified for "bearing arms" (serving) within a well regulated militia could not be deprived of owning and storing at home THOSE weapons in service to the militia, such weapons being inspected and "enrolled" (registered) each year during the call up for drilling and taking a "return of militia" to maintain a record of the inventory of men and weapons the state had at its disposal (Militia Act of 1792).
The militia was NEVER everybody. Who was the militia in 1790s?
Militia service was conscript duty in 1790s! IF you were an able-bodied, property-owning, 18-45-year-old white male, AND NOT a felon or mentally-defective, or a minister, teacher, mail carrier, ferryman, VP of the US (and a select bunch of other govt employees!), or, in certain states, "religiously scrupulous" or able to "pay an equivalent to bear arms" in your stead, you HAD to SERVE! READ the Militia Act of 1792!
No blacks, no women, no children, no elderly, no cripples, no felons, no insane, no furreners, no injuns. In other words, WAY, WAY less than half the US population.
A 7-year-old boy has the POTENTIAL right to "keep and bear arms," a right he may exercise when he reaches the proper age to enlist in the militia, or, today, the Nat Guard, and THEN qualifies by meeting the other requirements. But the 2nd Amen is SILENT on the "right" to "own or carry guns," such rights being a matter of state and local concern.
When George Mason said: "Who are the militia?... the whole people..." he meant they came from every class and background, rather than just being from one economic or social class, but he feared that may devolve in time. (And it did!)
The people who "qualify" to exercise the 1st Amen rights are nearly everyone; some people, through due process, may have some rights restricted. According to Verdugo, 4th Amen and other rights may not apply to non-citizens. 3rd Amen rights are moot to people who don't own homes. Right to speedy trial is relevant only to people WHEN they qualify by being accused of crimes; this is a smaller "class of persons" (Verdugo).
The ONLY right that can be called INDIVIDUAL, since the word "individual" does NOT appear, which means such interpretation is NOT clear, but must be inferred, is the RIGHT of "the people" which is a collective term in itself. The SCOTUS says "The People" which is a "class of persons" (United States v. Verdugo-Urquidez), in this case, in 1789, the class comprising able-bodied property-owning white males of suitable age and not in prison, have the right to "keep and bear arms," which is a military term equal to "serve as a soldier" in the state-run militia. The state has the right, or authority, or power to appoint officers and maintain the militia. The feds can't force the weapons to be stored in some depository, hence those INDIVIDUALS enrolled in the militia who have also enrolled (that is, REGISTERED) their guns (see Militia Act of 1792) may store their PERSONAL MILITIA weapons at their homes. That's it.
There IS nothing in the 2nd Amen to EXCLUDE individual private ownership of arms. But there's nothing in the 2nd Amen to GUARANTEE absolute individual ownership of arms either! That's because the 2nd Amen wasn't ABOUT that! Those individuals who qualified for "bearing arms" (serving) within a well regulated militia could not be deprived of owning and storing at home THOSE weapons in service to the militia, such weapons being inspected and "enrolled" (registered) each year during the call up for drilling and taking a "return of militia" to maintain a record of the inventory of men and weapons the state had at its disposal (Militia Act of 1792).
Other than that, there's nothing to prevent the feds or states from placing limits on the classes of weapons that people may own, and restrict the classes of individuals who may own weapons. 200+ years of SCOTUS and Appeals rulings have affirmed all this. And all within 2nd Amen interpretation.
The 2nd Amen neither protects nor prohibits owning and carrying weapons, since that's not why it was written or what the language means! (That is a matter for the states to deal with, under their internal police power and public safety and order powers; they CAN, if they choose, provide/protect an INDIVIDUAL right to own guns, in their respective state constitutions, OR they can deny/prohibit such a right.)
In the 2nd Amen, the fed govt (and the fed govt only, not the state govts, as per Presser and Cruikshank) is merely prohibited from infringing on the right (power, for those purists who claim states don't have rights) of the states to maintain their militias, particularly by "disarming" them, which, as George Mason said during ratification debates, meant failing to "arm" them, as they were instructed to do by the Const's militia clause (which also gave the states the right/power to appoint their own officers and do the actual discipline the feds laid down for them to follow), and thus lead to their weakness and inability to stand up to federal standing armies, one of the anti-feds greatest fears.
That's about it. NO reference to hunting, personal self-defense, target shooting in the Amendment OR any of the debates.
The right to bear arms is merely the JUS MILITIAE, or the right of the citizen to be involved in the state's (or nation's) military function, as a citizen-soldier (as opposed to a "regular" professional soldier in a standing army) "trained to arms" and "enrolled" into an organized, "well regulated" state militia. It's not about "carrying arms" or "kinds or arms" but BEARING ARMS, (to serve as a soldier).
> [Schulman:] "(3) Is the right of the people to keep and bear
> arms conditioned upon whether or not a well regulated militia,
> is, in fact necessary to the security of a free State, and if
> that condition is not existing, is the statement 'the right of
> the people to keep and bear Arms, shall not be infringed' null
> and void?"
>
> [Copperud:] "(3) No such condition is expressed or implied. The
> right to keep and bear arms is not said by the amendment to
> depend on the existence of a militia. No condition is stated or
> implied as to the relation of the right to keep and bear arms
> and to the necessity of a well-regulated militia as a requisite
> to the security of a free state.
> The right to keep and bear arms is deemed unconditional by the
> entire sentence."
And thus grammarians prove they have no business trenching upon the fields constitutional law, history, logic, etymology, or the way the courts work!
HICKMAN v. BLOCK No. 94-55836. United States Court of Appeals, Ninth Circuit. Decided April 5, 1996.
We follow our sister circuits in holding that the Second Amendment is a RIGHT held by the states, and does not protect the possession of a weapon by a private citizen.
Consulting the text and history of the amendment, the Court found that the right to keep and bear arms is meant solely to protect the RIGHT OF THE STATES to keep and maintain armed militia.
The Court's understanding follows a plain reading of the Amendment's text. The Amendment's second clause declares that the goal is to preserve the security of "a free state;" its first clause establishes the premise that a "well-regulated militia" is necessary to this end. Thus it is only in furtherance of state security that "the right of the people to keep and bear arms" is finally proclaimed.
(And NO right in the BOR is absolute!)
Besides, even by grammatical standards, the words 'the right of the people to keep and bear Arms, shall not be infringed' do not make a complete sentence, thanks to that pesky comma!:
The functional sentence IS and ALWAYS WAS "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." In its entirety.
Because there ARE three commas, four clauses/phrases, it could just as clearly be written:
"A well regulated militia, ... , shall not be infringed."
Further to this grammatical analysis, from http://www.potowmack.org/yass.html:
At the same time the congressional drafters switched the order of the clauses, they inserted two unusual commas that further emphasize the framers' intention to prevent federal interference with the militia. Under ordinary usage, the first and third commas in the Amendment are unnecessary. If these commas had not been inserted, it would be possible to understand the Well Regulated Militia Clause as simply explaining the rationale for the Bear Arms Clause (the Amendment would then read: "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."). But the commas are in fact in the text proposed by Congress and ratified by the states, and they prevent this reading. The first unusual comma between "Militia" and "being" forces the reader to search for a verb for which "Militia" is the subject. That verb does not appear until "shall not be infringed" near the end of the Amendment.
The second unusual comma between "Arms" and "shall" sets off the verb phrase "shall not be infringed" from the preceding language; it suggests that the subject for this verb phrase is not simply "the right of the people to keep and bear Arms." The grammatical effect of these two unusual commas is to link "A well regulated Militia" to "shall not be infringed" to emphasize, in other words, that the goal of the Amendment is to protect the militia against federal interference. The Constitution was drafted with great care, and (unlike much legal writing from the Founding period) its use of punctuation generally conforms to modern conventions, suggesting that the commas in the Second Amendment are not haphazard but rather deserve scrupulous attention.
Here's another interpretation:
------- http://patriot.net/~tlj/xplaindp.htm
The Second Amendment is split by commas into four phrases, the last of which is a verbal phrase starting with the verb "shall":
"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 first two phrases are related to each other. The fact that the third phrase is separated from the verbal phrase by a comma indicates that the verbal phrase has more than the third phrase as its subject. The abbreviated grammatical construction actually renders the meaning of the Second Amendment as: "Neither a well regulated Militia, being necessary to the security of a free state, nor the right of the people to keep and bear Arms shall be infringed."
Note also that the term "arms" then and now implies military weapons. -------
Note also that HE is ignorant of Madison's use of the verb phrase "BEAR ARMS" as in "to render military service in person" and NOT as in GUNS!
> [Schulman:] "(4) Does the clause 'A well-regulated Militia,
> being necessary to the security of a free State,' grant a right
> to the government to place conditions on the 'right of the
> people to keep and bear arms,' or is such right deemed
> unconditional by the meaning of the entire sentence?"
>
> [Copperud:] "(4) The right is assumed to exist and to be
> unconditional, as previously stated. It is invoked here
> specifically for the sake of the militia."
No constitutional right has been held to be absolute or "unconditional.":
The right to possess any weapon, as opposed to the "right to keep and bear arms," which only meant to serve as a citizen-soldier in the militia, had to bear "reasonable relationship to the preservation or efficiency of a well regulated militia," IF it were to meet the 2nd Amen protection. THAT'S what Miller proclaimed, and has been confirmed by EVERY Circuit since.
That's because the 2nd Amen DOESN'T ADDRESS "owning guns" at ALL! IF there's any personal right to own weapons, or to defend oneself, or to hunt, it's NOT in the 2nd Amen; you may want to invoke the 9th, or your state constitutions, since the US Const is mum on the subject.
U.S. Supreme Court LEWIS v. UNITED STATES, 445 U.S. 55 (1980)
Section 1202 (a) (1) clearly meets that test. Congress, as its expressed purpose in enacting Title VII reveals, 18 U.S.C. App. 1201, was concerned that the receipt and possession of a firearm by a felon constitutes a threat, among other things, to the continued and effective operation of the Government of the United States. The legislative history of the gun control laws discloses Congress' worry about the easy availability of firearms, especially to those persons who pose a threat to community peace.
[ Footnote 8 ] These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U.S. 174, 178 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to [445 U.S. 55, 66] the preservation or efficiency of a well regulated militia")
CASES v. UNITED STATES. No. 3756. Circuit Court of Appeals, First Circuit. Nov. 27, 1942.
The right to keep and bear arms is not a right conferred upon the people by the federal constitution.
Whatever rights in this respect the people may have depend upon local legislation; the only function of the Second Amendment being to prevent the federal government and the federal government only from infringing that right. But the Supreme Court... indicated that the limitation imposed upon the federal government by the Second Amendment was not absolute.
... to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities... is in effect to hold that the limitation of the Second Amendment is absolute.
UNITED STATES v. Francis J. WARIN. No. 75-1734. United States Court of Appeals, Sixth Circuit. Decided Feb. 4, 1976.
Even where the Second Amendment is applicable, it does not constitute an absolute barrier to the congressional regulation of firearms.
LOVE v. PEPERSACK No. 94-1582. United States Court of Appeals, Fourth Circuit. Decided Feb. 3, 1995.
Citing law review articles, Love argues that she has an individual federal constitutional right to "keep and bear" a handgun, and Maryland may not infringe upon this right. She is wrong on both counts. The Second Amendment does not apply to the states. Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L. Ed. 615 (1886); United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (p.124) (1876). Moreover, even as against federal regulation, the amendment does not confer an absolute individual right to bear any type of firearm. In 1939, the Supreme Court held that the federal statute prohibiting possession of a sawed-off shotgun was constitutional, because the defendant had not shown that his possession of such a gun bore a "reasonable relationship to the preservation or efficiency of a well regulated militia." United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 818, 83 L.Ed. 1206 (1939). Since then, the lower federal courts have uniformly held that the Second Amendment preserves a collective, rather than individual, right.
> [Schulman:] "(5) Which of the following does the phrase
> 'well-regulated militia' mean: 'well-equipped',
> 'well-organized,' 'well-drilled,' 'well-educated,' or 'subject
> to regulations of a superior authority'?"
>
> [Copperud:] "(5) The phrase means 'subject to regulations of a
> superior authority;' this accords with the desire of the writers
> for civilian control over the military."
How was this deduced from the words themselves, absent any historical review?:
Well-regulated. One of the modern militia leaders who testified before Congress said, in answer to a question by Representative Patricia Schroeder about his insignia, that the militia movement is informal, spontaneous, and without fixed leadership. No eighteenth-century defender of the militias would have spoken that way. Sensitive to the charge that militias could be mobs, they always stressed that they were talking of a proper militia, a good militia, a correct militia, one well-trained, well-disciplined, well-regulated.
The use of the last term is especially significant, since the king's soldiers and sailors were called "regulars" in the eighteenth century. The militias, too, were "regular," existing under rules (regulae). They did not boast a lesser discipline, just a right to continual upkeep of themselves and their equipment. Adam Smith took regulated to mean, principally, "regimented" divided into bodies of troops.
General discussion of regulation concentrated on three matters: composition of the bands, arming (which included financing) them, and disciplining them. These three concerns are reflected in the Constitution's militia clause, which speaks of a congressional power "to provide for organizing, arming, and disciplining the militia" (Article I, Section 8, Clause 16)...
All authorized militias under our government have been financed by the central government, which also establishes their code of discipline.
Discipline was the third item of concern for eighteenth-century defenders of militias. No one was a member of the militia who had not joined an authorized "trained band" and been trained. So important is proper training that we often find "well-regulated" followed by an epexegetic phrase, spelling out the meaning of the term: "a well regulated militia, trained to arms" was the form Elbridge Gerry preferred for the Second Amendment. More expansively the Virginia ratifying convention suggested "a well-regulated militia, composed of the body of the people trained to arms."
In England, the need for a common discipline for militias was recognized, in order that the establishment of ranks, order, drill, maneuver, military obedience and punishment would be the same in neighboring counties, and even between the temporary army and the continuing militia (since some of the same men would go in or out of service in both). As early as Henry IV's time, an overall "commission of army," meant "to muster and array (or set in military order) the inhabitants of every district," was accepted.
For more: http://www.potowmack.org/garwills.html
> [Schulman:] "(6) (If at all possible, I would ask you to take
> account the changed meanings of words, or usage, since that
> sentence was written 200 years ago, but not take into account
> historical interpretations of the intents of the authors, unless
> those issues can be clearly separated."
>
> [Copperud:] "To the best of my knowledge, there has been no
> change in the meaning of words or in usage that would affect the
> meaning of the amendment.
And here Copperud shows himself to be no expert on 18th Century usage! He has undermined his entire credibility and made his entire value to Schulman nil! See again the Madison draft, the other contemporary examples, the OED definition, and the Aymette ruling. Here are HUNDREDS of similar uses of "bear arms" to Madison's that show Copperud to be ignorant of this important point!: http://www.potowmack.org/emerappa.html.
Here's what historian Garry Wills has to say: (http://www.potowmack.org/garwills.html)
Bear Arms. To bear arms is, in itself, a military term. One does not bear arms against a rabbit. The phrase simply translates the Latin arma ferre. The infinitive ferre, to bear, comes from the verb fero. The plural noun arma explains the plural usage in English ("arms"). One does not "bear arm." Latin arma is, etymologically, war "equipment," and it has no singular forms. By legal and other channels, arma ferre entered deeply into the European language of war. To bear arms is such a synonym for waging war that Shakespeare can call a just war "just-borne arms" and a civil war "self-borne arms." Even outside the phrase "bear arms," much of the noun's use alone echoes Latin phrases: to be under arms (sub armis), the call to arms (ad arma), to follow arms (arma sequi), to take arms (arma capere), to lay down arms (arma ponere). "Arms" is a profession that one brother chooses as another chooses law or the church. An issue undergoes the arbitrament of arms. In the singular, English "arm" often means a component of military force (the artillery arm, the cavalry arm).
Thus "arms" in English, as in Latin, is not restricted to the meaning "guns." The Romans had no guns; and they did not limit arma to projectile weapons (spears, arrows). It meant weaponry in general, everything from swords to siege instruments but especially shields. That is why the heraldic use of "arms" in English (the very case Stephen Halbrook invokes) refers to shields "coated" (covered) with blazonry...
(Patrick Henry tells us, the militia's arms include "regimentals, etc." flags, ensigns, engineering tools, siege apparatus, and other "accoutrements of war."
Do you argue for the right to "carry flags, ensigns, engineering tools, siege apparatus, and other accoutrements of war."?)
> If it were written today, it might be
> put: "Since a well-regulated militia is necessary to the
> security of a free state, the right of the people to keep and
> bear arms shall not be abridged.'
Fine. But "keep and bear arms" STILL meant to Madison and Adams "render military service in person" and "maintain readiness":
Not at all; "keeping" is a militia function, and it includes BOTH the communal storage and "keeping up" of "arms" (which is the ENTIRE "equipage" of warfare: cannon and balls, powder, tents, flags, wagons, siege apparatus, engineering equipment, regimentals, accouterments, etc.) AND the personal "keeping" of those REGISTERED militia weapons (Militia Act of 1792) specified by law.
This is from historian Garry Wills:
To keep. Gun advocates read "to keep and bear" disjunctively, and think the verbs refer to entirely separate activities. "Keep," for them, means "possess personally at home" a lot to load into one word. To support this entirely fanciful construction, they have to neglect the vast literature on militias. It is precisely in that literature that to-keep-and-bear is a description of one connected process. To understand what "keep" means in a military context, we must recognize how the description of a local militia's function was always read in contrast to the role of a standing army. Armies, in the ideology of the time, should not be allowed to keep their equipment in readiness...
The idea of militia "stands" in common depots or arsenals was not confined to England. In America, the Articles of Confederation required that "every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage." (equipage being etymological sense of arma). Thus it is as erroneous to suppose that "keep" means, of itself, "keep at home" as to think that "arms" means only guns. Patrick Henry tells us, the militia's arms include "regimentals, etc." flags, ensigns, engineering tools, siege apparatus, and other "accouterments of war."
Some arms could be kept at home, of course. Some officers kept their most valuable piece of war equipment, a good cross-country horse, at home, where its upkeep was a daily matter feeding and physical regimen.
But military guns were not ideally kept home. When militias were armed, it was, so far as possible, with guns of standard issue, interchangeable parts, uniform in their shot, upkeep and performance the kind of "firelocks" Trenchard wanted kept "in every parish" (not every home). The contrast with armies was not to be in performance (Trenchard and others boasted of the high degree of efficient organization in militias). The contrast was in continuity. The militia was always at the ready, its arms "kept." Armies came and went their "continuation" was what Trenchard attacked...
To keep-and-bear arms was the distinguishing note of the militia's permanent readiness, as opposed to the army's duty of taking up and laying down ("deponing" is Trenchard's word) their arms in specific wars. The militia was maintained on a continuing basis, its arsenal kept up, its readiness expressed in the complex process specified by "keep-and-bear." To separate one term from this context and treat it as specifying a different right (of home possession) is to impart into the language something foreign to each term in itself, to the conjunction of terms, and to the entire context of Madison's sentence.
"It is possible, and likely, that the "keep arms" component was also understood in early America in an exclusively military context. This is especially likely since virtually every militia act used the word "keep" or a close synonym to describe the requirement to own or have custody of a weapon and maintain it for military use. And there is no doubt that Americans like John Adams, the author of the Massachusetts bill of rights of 1780 which was the first to use "keep arms" as part of a constitutional guarantee, saw the English common law implications of the phrase. However, like "bear arms," "keep arms" was American terminology, as opposed to the English "have arms" expression. Therefore, it is time to relook at the Second Amendment and reconstruct this badly deconstructed article of the Bill of Rights in a military context." (J.K.Rowland)
> [Schulman:] "As a 'scientific control' on this analysis, I would
> also appreciate it if you could compare your analysis of the
> text of the Second Amendment to the following sentence,
>
> "A well-schooled electorate, being necessary to the security of
> a free State, the right of the people to keep and read Books,
> shall not be infringed.'
This is HARDLY a 'scientific control'! It ignores ALL the history of the debates concerning just what the 2nd Amen WAS about, and makes words that have the EXACT and seperable meaning today as in 1790 identical to a VERB PHRASE that CAN'T be broken without ignoring it's ACTUAL usage by Madison and his contemporaries!
Because that is a lame analogy that equates the verb phrase "bear arms" with two words that mean the same thing apart as together... "read + books."
A lousy and inaccurate example, because read books is read + books = follow the words in a publication. However, bear + arms as in carry + guns is NOT the same as "BEAR ARMS" which is a verb phrase that doesn't mean "carry guns."
I've seen this bogus analogy before, and it is not relevant; "bear arms" is a verb phrase, like "practice medicine" -- not like read books:
I wonder if that's why there were laws preventing slaves from learning how to read. ;)
In this case, and it's really bad logic, the people who have the right to vote (the electorate) have the right to keep & read books; the others, non-voters are not necessarily prohibited from reading. But again, to follow this off-the-mark analogy, there would be nothing to prevent a law saying non-voters could be denied books that incite riots or lynchings. The real problem here is that "read books" means the same thing as read (verb) + books (noun); bear + arms does NOT mean the same thing as "to bear arms" = serve in the military, fight.
There is NO linguistic connection between "keep and read books" AND voting (a better version than yours at least suggests a "well educated electorate" in which the plural electorate is similar to the plural militia), whereas to "keep and bear arms" IS directly related to serving IN the well regulated militia.
Well, fortunately we don't have to deal with such nonsense phrasing. But unless you accept that the term "bear arms" MEANS to serve in the militia, you won't get the point, will you.
Try this one... suppose one of the FFs, perhaps Dr. Benjamin Rush, DID get this Amen written and passed:
"A well regulated medical profession, being necessary to the well-being of a healthy commonwealth, the right of the people to practice medicine, shall not be infringed."
This is a little closer to the analogy. Who has the right to do what here and why? The phrase "practice medicine" like "bear arms" is not subject to being split without losing the meaning we all recognize.
Otherwise (practice=repetitive trying) + (medicine=stuff in a bottle) = repeatedly trying to get stuff in a bottle. "Practice medicine" is a verb phrase, like "bear arms" is. Who "bears arms"? Citizen-soldiers, i.e. those in the militia, not hunters or security guards, who "carry guns" instead. Who "practices medicine"? Doctors, not YOU, just because you take an aspirin. Can just any one of "the people" practice medicine? NO, because practicing medicine is part of a well regulated medical profession, made up of doctors, just like "bearing arms" is part of a well regulated militia, made up of militiamen who qualify. But there is nothing to restrict any person of "the people" from becoming a doctor, so long as they are authorized to "practice medicine" as part of a well regulated medical profession.
IF Madison had written "the right of individual persons to own and carry weapons, shall not be infringed," you MIGHT have a point. But he DIDN'T. "Bear arms" was a term of art, a verb phrase (and the extended version keep-and-bear-arms, too); you can't break it up because you WANT to use 21st Century logic.
The term was a verb phrase, analogous today to one like "practice medicine." Sure, if you mistakenly break down the phrases you can get bear=carry + arms=guns = carry guns, or practice=keep trying + medicine=pills in a bottle = keep trying pills in a bottle. But any literate person today knows that "practice medicine" means to serve as a doctor, just as any literate person of 1790 knew that "bear arms" meant to serve as a soldier.
You seem to be unaware of what the words mean AS they were written in the 18th Century, AND what the courts have since confirmed the "right" to be.
"To keep and" merely EXTENDS the verb phrase "bear arms," as in:
medicine practice medicine study and practice medicine "Kildare has decided to study and practice medicine."
Keep-and-bear-arms is a term of art.
Now, I didn't use this to be an EXACT parallel of "keep and bear arms," since that wasn't my purpose. But I will say that, just as one needs to be licensed to PRACTICE medicine, not just ANYONE can STUDY medicine, either. If you think so, try walking into the Harvard Medical School, sit down in a classroom, and tell everyone you're "studying medicine"! In order to STUDY medicine, one must be ACCEPTED into an accredited Medical School, and THAT means meeting very strict and demanding requirements, something only a fraction of even college grads can do, and THEN one must train and maintain one's grades and performance over the entire study period of YEARS.
So, sure, any 20-year-old has the same "right to study and practice medicine" as anyone else -- in theory and potential -- but until he or she is ACCEPTED in med school, graduates, is licensed, and opens a practice or works for a hospital or clinic, that "right" is not exercised.
Likewise, in 18th Century America, SOME people (free, white, property-owning, able-bodied males, 18-45, not in prison or mentally-defective) had the potential right to "keep and bear arms" but until they were ACCEPTED into an authorized, well regulated "trained band" "under military discipline," they were NOT considered IN the Militia, and the "right" was not exercised.
BTW, "keep books" IS subject to the identical verb phrase interpretation, including "Madison's" final clause, as "bear arms":
"A well regulated accounting profession, being necessary to a fiscally healthy commonwealth, the right of the people to keep books, shall not be infringed; but no person mathematically-challenged shall be required to keep books without a calculator."
Here, and especially due to the final clause, as in Madison's draft, the meaning of "keep books" is obvious; it MUST refer to "fiscal bookkeeping" and NOT TO "possessing printed works of literature."
"Keep books"; "practice medicine"; "bear arms." In context, unseparable verb phrases!
> "My questions for the usage analysis of this sentence would be,
>
> "(1) Is the grammatical structure and usage of this sentence and
> the way the words modify each other, identical to the Second
> Amendment's sentence?; and
NO, since "keep and read books" (except for fiscal bookkeeping) is NOT indentical to "keep and bear arms" in structure! And what about those pesky THREE commas?!
> "(2) Could this sentence be interpreted to restrict 'the right
> of the people to keep and read Books' _only_ to 'a well-educated
> electorate' -- for example, registered voters with a high-school
> diploma?"
NOT relevant! A well regulated militia is made up ONLY of "a body of men trained to military discipline." "Keeping and bearing arms" IS solely a militia function, as opposed to mere "owning and carrying guns"!
There IS nothing in the 2nd Amen to EXCLUDE individual private ownership of arms. But there's nothing in the 2nd Amen to GUARANTEE absolute individual ownership of arms either! That's because the 2nd Amen wasn't ABOUT that! Those individuals who qualified for "bearing arms" (serving) within a well regulated militia could not be deprived of owning and storing at home THOSE weapons in service to the militia, such weapons being inspected and "enrolled" (registered) each year during the call up for drilling and taking a "return of militia" to maintain a record of the inventory of men and weapons the state had at its disposal (Militia Act of 1792).
> [Copperud:] "(1) Your 'scientific control' sentence precisely
> parallels the amendment in grammatical structure.
Except that "bear arms" is a verb phrase that means something different than bear=carry + arms=guns, unlike read=read + books=books. Copperud's ignorance -- and Schulman's (unless he's just lying) -- on this point discredits his opinion. My practice medicine example is closer to the structure and usage.
> "(2) There is nothing in your sentence that either indicates or
> implies the possibility of a restricted interpretation."
Sure, since it isn't an EXACT analogy! Try this logic again:
IF any PART of a whole possesses the same and full rights granted TO the whole, in this case, reputedly, "the people," would the following ENTIRE sentences make ANY sense in 1792, even to the comprehension level of a 10-year-old?:
A well regulated Militia, being necessary to the security of a free State, the right of women to keep and bear Arms, shall not be infringed.
A well regulated Militia, being necessary to the security of a free State, the right of blacks to keep and bear Arms, shall not be infringed.
A well regulated Militia, being necessary to the security of a free State, the right of felons to keep and bear Arms, shall not be infringed.
A well regulated Militia, being necessary to the security of a free State, the right of cripples to keep and bear Arms, shall not be infringed.
In 1792, did an individual black man have a US BOR right to "keep and bear arms"... OR own a gun (two different things)? Did a woman? Did a 10-year-old? Did a felon? Did a non-citizen? Did a cripple or mental-defective? Did an Indian?
> Professor Copperud had only one additional comment, which he
> placed in his cover letter: "With well-known human curiosity, I
> made some speculative efforts to decide how the material might
> be used, but was unable to reach any conclusion."
That's because Schulman was being disingenuous and misleading, and was attempting to apply grammatical-only factors to interpret a Constitutional law (a legal and judicial matter), written by particular men in a particular time for a particular purpose (a historical and political matter), using the language of their day (an etymological and logical matter), as if NONE of those factors mattered, but that ONLY 20th Century grammatical structure were relevant!
BTW, another grammarian asked by a hoplophile to comment on the 2nd Amen said it was "over-punctuated"! That's like Emperor Joseph telling Mozart that his opera had "too many notes"! The 2nd Amen has EXACTLY as many commas as it has because THAT'S the way Congress drafted and passed it! You can't make them go away to satisfy your fantasy interpretation, anymore than the first half is legally "subordinate" or "optional."
> So now we have been told by one of the top experts on American
> usage what many knew all along:
NO, we've been shown how a grammarian, who lacks fundamental relevant knowledge (unless he just didn't feel obliged to add what he knew beyond the questions as asked), can be fed leading (and misleading) questions by a hoplophile with an agenda, and can have his caveated answers twisted and misused to support an argument they are incapable of bearing. Which many knew all along.
> the Constitution of the United
> States unconditionally protects
There is nothing in the grammar of the 2nd Amen to address the LEGAL interpretation of it so as to make it, in law and fact, UNCONDITIONAL! NO right in the BOR has been found to BE unconditional! And the 2nd Amen has NO bearing on the ability of states or localities to create LEGAL ordinances and laws, under police and public order and safety powers, that restrict ownership, transport, carriage, and use of weapons, so long as it DOESN'T infringe on the ability of the states to maintain their militias' efficiency and preservation, just as Miller and the other cases have consistently ruled.
> the people's right to keep and
> bear arms,
Since Copperud (and probably Schulman, unless he knows the truth, but is lying about it) is IGNORANT of what Madison MEANT by "the people" and "keep and bear arms," Schulman's interpretation that it creates an unconditional individual right to own weapons is absurd and without basis, as the Courts have consistently ruled. We can accept what the constitutionally-empowered Judiciary has interpreted the 2nd Amen to mean, or we are free to believe in and act on Schulman's personal and erroneous fantasy interpretation and just ignore the courts: go straight to jail, do not pass go, do not collect $200!
> forbidding all governments formed under the
> Constitution from abridging that right.
Presser and Cruikshank, and all subsequent court decisions, have shown the 2nd Amen does NOT restrict the states from passing laws that restrict gun ownership and use, and Lewis and Warin and Love v. Pepersack have shown that even Congress may pass laws that restrict gun ownership and use that do so and yet DO NOT "trench upon any constitutionally protected liberties."
> As I write this, the attempted coup against constitutional
> government in the Soviet Union has failed, apparently because
> the will of the people in that part of the world to be free from
> capricious tyranny is stronger than the old guard's desire to
> maintain a monopoly on dictatorial power.
Irrelevant emotional red herring.
> And here in the United States, elected lawmakers, judges, and
> appointed officials who are pledged to defend the Constitution
> of the United States ignore, marginalize, or prevaricate about
> the Second Amendment routinely.
Or perhaps Schulman is WRONG, and incapable of comprehending or unwilling to accept what the courts and scholars and even Madison himself have said! Since his "proof" via Copperud is bogus, his claim remains unsubstantiated.
> American citizens are put in American prisons for carrying arms,
> owning arms of forbidden sorts, or failing to satisfy
> bureaucratic requirements regarding the owning and carrying of
> firearms --
Because they are breaking Constitutionally-upheld LAWS! NO SCOTUS or Appellate 2nd Amen case has been overturned or reversed in over 60 years on 2nd Amen grounds! The NRA won't even FIGHT a lawsuit on 2nd Amen grounds, since they know it is "settled case law." As former Solicitor General Erwin Griswold wrote: "[T]hat the Second Amendment poses no barrier to strong gun laws is perhaps the most well-settled proposition in American Constitutional law."... but Schulman, in his divine wisdom, knows better!
> all of which is an abridgement of the unconditional
> right of the people to keep and bear arms, guaranteed by the
> Constitution.
Wrong conclusion based on wrong premises!
UNITED STATES v. Francis J. WARIN. No. 75-1734. United States Court of Appeals, Sixth Circuit. Decided Feb. 4, 1976.
Since the Second Amendment right "to keep and bear Arms" applies only to the RIGHT OF THE STATE to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm...
It would unduly extend this opinion to attempt to deal with every argument made by defendant and amicus curiae, Second Amendment Foundation, all of which are based on the erroneous supposition that the Second Amendment is concerned with the RIGHTS of individuals rather than THOSE OF THE STATES or that defendant's automatic membership in the "sedentary militia" of Ohio brings him within the reach of its guarantees.
HICKMAN v. BLOCK No. 94-55836. United States Court of Appeals, Ninth Circuit. Decided April 5, 1996.
We follow our sister circuits in holding that the Second Amendment is a RIGHT held by the states, and does not protect the possession of a weapon by a private citizen.
Consulting the text and history of the amendment, the Court found that the right to keep and bear arms is meant solely to protect the RIGHT OF THE STATES to keep and maintain armed militia.
Because the Second Amendment guarantees the RIGHT OF THE STATES to maintain armed militia, the states alone stand in the position to show legal injury when this right is infringed.
LOVE v. PEPERSACK No. 94-1582. United States Court of Appeals, Fourth Circuit. Decided Feb. 3, 1995.
The courts have consistently held that the Second Amendment only confers a COLLECTIVE RIGHT of keeping and bearing arms which must bear a "reasonable relationship to the preservation or efficiency of a well-regulated militia.
UNITED STATES v. HALE. No. 91-3830. United States Court of Appeals, Eighth Circuit. Decided Oct. 20, 1992.
The purpose of the Second Amendment is to restrain the federal government from regulating the possession of arms where such regulation would interfere with the preservation or efficiency of the militia. Whether the "right to bear arms" for militia purposes is "individual" or "collective" in nature is irrelevant where, as here, the individual's possession of arms is not related to the preservation or efficiency of a militia.
> And even the American Civil Liberties Union (ACLU), staunch
> defender of the rest of the Bill of Rights, stands by and does
> nothing.
Because settled case law is, well, settled!:
"Since the Second Amendment right "to keep and bear Arms" applies only to the RIGHT OF THE STATE to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm..." (Warin, 1976)
(The INDIVIDUAL right that Madison drafted was the "conscientious objector" right that the House passed but the Senate left out; had it been left in the ACLU might be interested, but, more important, we'd ALL know what Madison MEANT by "bear arms" and all this debate would be moot.)
> It seems it is up to those who believe in the right to keep and
> bear arms to preserve that right.
Too bad that those who "believe" in the right believe in a right that doesn't exist, a fantasy right based on false reading and false assumptions!
> No one else will. No one else
> can. Will we beg our elected representatives not to take away
> our rights, and continue regarding them as representing us if
> they do? Will we continue obeying judges who decide that the
> Second Amendment doesn't mean what it says it means but means
> whatever they say it means in their Orwellian doublespeak?
Or maybe the judges ARE correct, and their "plain reading of the Amendment's text" shows that it DOES mean what MADISON meant it to mean, and NOT what some loonitarian fiction writer WANTS it to mean:
"Consulting the text and history of the amendment, the Court found that the right to keep and bear arms is meant solely to protect the RIGHT OF THE STATES to keep and maintain armed militia.
The Court's understanding follows a plain reading of the Amendment's text. The Amendment's second clause declares that the goal is to preserve the security of "a free state;" its first clause establishes the premise that a "well-regulated militia" is necessary to this end. Thus it is only in furtherance of state security that "the right of the people to keep and bear arms" is finally proclaimed." (Hickman v. Block, 1996)
> Or will be simply keep and bear the arms of our choice,
Even if it means breaking the law and defying the duly-constituted government of "the people" whose just powers derive from the consent of the governed? You are suggesting insurrection and rebellion, which the Constitution expressly has called treason and has empowered calling out the MILITIA to suppress:
Take it up with John Adams: "It must be made a sacred maxim, that the militia obey the executive power, which represents the whole people in the execution of laws. To suppose arms in the hands of the citizens, to be used at individual discretion, except in private self defense, or by partial orders of towns, counties, or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man is a dissolution of the government. The fundamental law of the militia is, that it be created, directed, and commanded by the laws, and ever for the support of the laws."
NO, you will simply be "possessing and carrying guns" of your choice, NOT "keeping and bearing arms" as part of the well regulated militia the 2nd Amen and the Constitution refers to:
UNITED STATES v. WRIGHT. No. 95-8397. 117 F.3d 1265, United States Court of Appeals, Eleventh Circuit. July 24, 1997.
"... only militias actively maintained and trained by the states can satisfy the "well regulated militia" requirement of the Second Amendment."
"At the time of ratification, and as remains the case today, the militia was defined broadly and was understood to include "all males physically capable of acting in concert for the common defense." Miller, 307 U.S. at 177 , 59 S.Ct. at 818. But because the Constitution protects only the possession or use of guns reasonably related to a "well regulated militia," membership in this broad segment of the population is constitutionally insignificant."
> as the
> Constitution of the United States promises us we can,
NO, that is a misreading of the 2nd Amen which, like the rest of the Constitution is SILENT on "possessing and using guns" independent of their use in militia service. Check the debates on the 2nd Amen in Congress and the states: there's NO discussion of individual rights, gun ownership by individuals independent of militia service, or universal ownership by ALL persons, since that's NOT what the framers had in mind at all! Only the balance between federal and state authority over the militia, and the militia vs. a standing army!
> and pledge
> that we will defend that promise with our lives, our fortuned,
> and our sacred honor?
Blah blah blah! Make up a promise that doesn't exist, and then fight for it! Sort of like building castles in the air and then living in them!
> © 1991 by The New Gun Week and Second Amendment Foundation.
> Informational reproduction of the entire article is hereby
> authorized provided the author, The New Gun Week and Second
> Amendment Foundation are credited. All other rights reserved.
Including the right to be wrong!
So much for "literary analysis" of law, logic, history, and 18th Century word usage! Schulman should stick to science fiction, Copperud to teaching young journalism students how not to split infinitives! Next!