Guns and grammar
By Robert F. Jakubowicz
Article Last Updated: 03/27/2008 04:35:17 PM EDT
Friday, March 28
PITTSFIELD
The Second Amendment to the Constitution, now under consideration by the U.S. Supreme Court in the District of Columbia v. Heller case, raises a grammatical question as well as a legal question.
The grammatical structure of this one sentence Amendment creates two arguable meanings. Did it created a collective right of the people "to keep and bear arms" as members of a "well regulated militia?" Or did it created and individual right for each American "to keep and bear arms?" The First Amendment affirmatively and clearly states that "Congress shall make no law" respecting religion, or abridging the freedoms of speech, the press, assembly and petition. It seems reasonable to expect that if a similar affirmative and clear intent was to be asserted by the Second Amendment it would have been written in a similar, clear grammatical manner. For example, one would have expected a provision like: Congress shall make no law infringing on the right of the people to keep and bear arms.
But, the Second Amendment was not so worded. Instead it 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." This particular wording, according to Professor Clara Park who taught English at Berkshire Community College and Williams College, is significant regarding the grammatical meaning of this amendment. She said that it was an example of what she called "historical grammar" that was used by the Founding Fathers. This type of sentence structure, she said, was called an ablative absolute.
This Latin grammar rule was known and used by educated Americans, like the Founders, to express a concept (e.g., the amendment's first part of a "well regulated militia, being necessary to the security of a free state") grammatically separated from the rest of a sentence but modifying that remaining part of the sentence (e.g., the amendment's second part, "the right of the people to keep and bear arms"). In other words, the people in each state have a collective right "to keep and bear arms" as members of a regulated militia which was necessary for the security of each state.
This interpretation was one of the points made by the attorneys representing the District of Columbia before the Supreme Court. They argued that the Second Amendment was not intended to create an armed American populace, but to allow an armed, regulated state militia. The attorneys for Dick Heller, the plaintiff in the case who carried a fire arm on the job as an employee of a private security company, argued to the contrary. They contended that the refusal by District officials to permit Heller "to keep and bear" that fire arm at home after work under the District's strict gun control law violated his individual right "to keep and bear arms."
The Supreme Court in the 1939 case of U.S. v. Miller, the last time it considered the issue of Second Amendment gun rights, made a connection between a militia and keeping and bearing arms. It decided that the federal National Firearms Act, which among other things prohibited the transport in interstate commerce of shotguns with barrels less than 18 inches in length, did not violate a person's right under the Second Amendment "to keep and bear arms."
The court in its reasoning made the point that it could not on its own say that such a shotgun was an ordinary military fire arm, or that its use could contribute to the common defense. The court further noted that the debate at the constitutional convention, colonial and state history and laws, and commentators — all showed the Founders expectation that a militia when called upon would appear with its members bearing arms of a kind in common use supplied by themselves.
And regarding the other legal factors in this case, the Supreme Court created a rule to interpret the Constitution known as the doctrine of incorporation. The 10 amendments constituting the Bill of Rights were adopted to placate the concerns of the people that the original Constitution did not contain any safeguards for them against the actions of the federal government. For example, the First Amendment states "Congress" shall not make any laws abridging the five freedoms mentioned therein.
Later, when the Fourteenth Amendment was adopted prohibiting states from depriving people of "life, liberty or property, without due process," the Supreme Court decided to incorporate parts of the Bill of Rights through that Amendment against state governments. So far, some five of Bill of Rights amendments, the First (the well known five freedoms), the Fourth (unreasonable searches and seizures), the Fifth (double jeopardy, self-incrimination, etc.), the Sixth (jury trials), and the Eighth (excessive bail, cruel and unusual punishment) have been incorporated. It remains to be seen if the Supreme Court in this case will now incorporate the Second Amendment and apply it to the District of Columbia and the states.
Finally the Court will look at the history of practically unregulated gun ownership under colonial and early federal and state laws before and after the adoption of the Second Amendment, and what is happening today regarding this issue. The court must now consider all of the above factors to decide this controversial case because of the grammar used by the drafters of the Amendment which underscores the importance of the use of grammar in our society.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.
Guns and grammar - Berkshire Eagle Online
----------------
Will be interesting to see how the Court rules on this one.
By Robert F. Jakubowicz
Article Last Updated: 03/27/2008 04:35:17 PM EDT
Friday, March 28
PITTSFIELD
The Second Amendment to the Constitution, now under consideration by the U.S. Supreme Court in the District of Columbia v. Heller case, raises a grammatical question as well as a legal question.
The grammatical structure of this one sentence Amendment creates two arguable meanings. Did it created a collective right of the people "to keep and bear arms" as members of a "well regulated militia?" Or did it created and individual right for each American "to keep and bear arms?" The First Amendment affirmatively and clearly states that "Congress shall make no law" respecting religion, or abridging the freedoms of speech, the press, assembly and petition. It seems reasonable to expect that if a similar affirmative and clear intent was to be asserted by the Second Amendment it would have been written in a similar, clear grammatical manner. For example, one would have expected a provision like: Congress shall make no law infringing on the right of the people to keep and bear arms.
But, the Second Amendment was not so worded. Instead it 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." This particular wording, according to Professor Clara Park who taught English at Berkshire Community College and Williams College, is significant regarding the grammatical meaning of this amendment. She said that it was an example of what she called "historical grammar" that was used by the Founding Fathers. This type of sentence structure, she said, was called an ablative absolute.
This Latin grammar rule was known and used by educated Americans, like the Founders, to express a concept (e.g., the amendment's first part of a "well regulated militia, being necessary to the security of a free state") grammatically separated from the rest of a sentence but modifying that remaining part of the sentence (e.g., the amendment's second part, "the right of the people to keep and bear arms"). In other words, the people in each state have a collective right "to keep and bear arms" as members of a regulated militia which was necessary for the security of each state.
This interpretation was one of the points made by the attorneys representing the District of Columbia before the Supreme Court. They argued that the Second Amendment was not intended to create an armed American populace, but to allow an armed, regulated state militia. The attorneys for Dick Heller, the plaintiff in the case who carried a fire arm on the job as an employee of a private security company, argued to the contrary. They contended that the refusal by District officials to permit Heller "to keep and bear" that fire arm at home after work under the District's strict gun control law violated his individual right "to keep and bear arms."
The Supreme Court in the 1939 case of U.S. v. Miller, the last time it considered the issue of Second Amendment gun rights, made a connection between a militia and keeping and bearing arms. It decided that the federal National Firearms Act, which among other things prohibited the transport in interstate commerce of shotguns with barrels less than 18 inches in length, did not violate a person's right under the Second Amendment "to keep and bear arms."
The court in its reasoning made the point that it could not on its own say that such a shotgun was an ordinary military fire arm, or that its use could contribute to the common defense. The court further noted that the debate at the constitutional convention, colonial and state history and laws, and commentators — all showed the Founders expectation that a militia when called upon would appear with its members bearing arms of a kind in common use supplied by themselves.
And regarding the other legal factors in this case, the Supreme Court created a rule to interpret the Constitution known as the doctrine of incorporation. The 10 amendments constituting the Bill of Rights were adopted to placate the concerns of the people that the original Constitution did not contain any safeguards for them against the actions of the federal government. For example, the First Amendment states "Congress" shall not make any laws abridging the five freedoms mentioned therein.
Later, when the Fourteenth Amendment was adopted prohibiting states from depriving people of "life, liberty or property, without due process," the Supreme Court decided to incorporate parts of the Bill of Rights through that Amendment against state governments. So far, some five of Bill of Rights amendments, the First (the well known five freedoms), the Fourth (unreasonable searches and seizures), the Fifth (double jeopardy, self-incrimination, etc.), the Sixth (jury trials), and the Eighth (excessive bail, cruel and unusual punishment) have been incorporated. It remains to be seen if the Supreme Court in this case will now incorporate the Second Amendment and apply it to the District of Columbia and the states.
Finally the Court will look at the history of practically unregulated gun ownership under colonial and early federal and state laws before and after the adoption of the Second Amendment, and what is happening today regarding this issue. The court must now consider all of the above factors to decide this controversial case because of the grammar used by the drafters of the Amendment which underscores the importance of the use of grammar in our society.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.
Guns and grammar - Berkshire Eagle Online
----------------
Will be interesting to see how the Court rules on this one.
