On another blog, someone made the comment:
You give us a link to statuatory interpretation, but fail to
recognize that we're talking about the constitutional interpretation:
Well, it
IS a legal document. And it was written to those rules.
That
is a comment which is the equivalent of "why do I need to know grammar
when I write? " or "Why do I need to know the rules of chess?"
In analyzing a statute’s text, the Court is guided by the basic principle that a
statute should be read as a harmonious whole, with its separate parts being
interpreted within their broader statutory context in a manner that furthers statutory
purpose. The various canons of interpretation and presumptions as to substantive
results are usually subordinated to interpretations that further a clearly expressed congressional purpose.
from Statutory Interpretation: General Principles and Recent Trends, Congressional Research Office, Order Code 97-589.
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803): said that
The subsequent part of the section
is mere surplusage, is entirely without meaning, if such is to be the
construction…It cannot be presumed that any clause in the constitution
is intended to be without effect; and therefore such construction is
inadmissible, unless the words require it.
Rules of statutory interpretation regarding the proeme, AKA the first clause of the Second Amendment.
If words happen to be still dubious, we may establish
their meaning from the context; with which it may be of singular use to
compare a word, or a sentence, whenever they are ambiguous, equivocal,
or intricate. Thus the proeme, or preamble, is often called in to help
the construction of an act of parliament. Of the same nature and use is
the comparison of a law with other laws, that are made by the same
legislator, that have some affinity with the subject, or that expressly
relate to the same point.
That gets back to my
comment that Article I, Section 8, Clause 16 expressly gives CONGRESS
the power to ARM the militia. Looking at the document as a whole, the
Civic Right (not my interpretation personally, but the one which was
accepted until
Heller threw the law into flux).
I also talk about a concept called
desuetude, that is where laws become obsolete. Many laws have sunset clauses written into them.
In the case of the Second Amendment, the first clause announces the purpose (from
Adam Freeman's Clause and Effect)
:
The best way to make sense of the Second Amendment is to take away
all the commas (which, I know, means that only outlaws will have
commas). Without the distracting commas, one can focus on the grammar of
the sentence. Professor Lund is correct that the clause about a
well-regulated militia is “absolute,” but only in the sense that it is
grammatically independent of the main clause, not that it is logically
unrelated. To the contrary, absolute clauses typically provide a causal
or temporal context for the main clause.
The founders — most of
whom were classically educated — would have recognized this rhetorical
device as the “ablative absolute” of Latin prose. To take an example
from Horace likely to have been familiar to them: “Caesar, being in
command of the earth, I fear neither civil war nor death by violence”
(ego nec tumultum nec mori per vim metuam, tenente Caesare terras). The
main clause flows logically from the absolute clause: “Because Caesar
commands the earth, I fear neither civil war nor death by violence.”
Diagramming the Second Amendment, one should end up with something that
expresses a causal link, like: “Because 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 infringed.” In other words, the
amendment is really about protecting militias, notwithstanding the arguments to the contrary.
In his
Rudiments of English Grammar (1790), Noah Webster writes
that “a nominative case or word, joined with a participle, often stands
independently of the sentence. This is called the case absolute.”
Webster gives several examples, including, “They all consenting, the
vote was passed.” He explains, “The words in italics are not connected
with the other part of the sentence, either by agreement or government;
they are therefore in the case absolute, which, in English, is always
the nominative.” Grammatical independence, to Webster, is not about
political self-determination, it's all about the nominative case. But he
would acknowledge without hesitation that the vote would not have
passed without the consent of the voters.
Webster’s readers would have had no difficulty recognizing that the
Second Amendment also begins with an absolute. They would have studied
the absolute in school, and they had probably been tested on it in a
federalist-era version of No Child Left Behind.
Any educated
federalist also would have learned in school that government, in
grammar, merely refers to the case of a noun – its inflection as a
nominative, dative, genitive, accusative (or, in the case of Latin, an
ablative). As Robert Lowth, the author of the most widely-studied school
grammar of the time, put it, “Regimen, or government, is when a word
causeth a following word to be in some case, or mode.” For example,
prepositions cause the following noun or pronoun to take the dative
case. Or as the schoolbooks liked to say, prepositions govern the
dative. That’s why we say, “Give the gun to me,” not, “Give it to I.”
Anyway,
since the clause "a well regulated militia is
necessary to the security of a free state" announces the purpose for the
right, We need to go back to the citation from Blackstone regarding the
“proeme, or preamble” since it is
part of a larger section that consists of “observations concerning the
interpretation of laws.” 1 Blackstone at 58. One of those
“observations” was: “BUT, lastly, the most universal and effectual way
of discovering the true meaning of a law, when the words are dubious, is
by considering the reason and spirit of it; or the cause which moved
the legislator to enact it. For when this reason ceases, the laws itself
ought likewise to cease with it.” 1 Blackstone at 61.
Blackstone refers to this “when the reason ceases, the law ought to
cease” principle several times in the Commentaries, which would seem to
indicate that he considered it a fairly important interpretive
principle. 2 Blackstone at 390-91 (discussing property interests in
tame and domestic animals and noting “But here the reasons of the
general rule cease, and ‘
cessante ratione cessat et ipsa lex‘
[The reason of the law ceasing, the law itself also ceases]“), 3
Blackstone at 219 (discussing the law of nuisance, and noting “But,
where the reason ceases, the law also ceases with it : therefore it is
no nuisance to erect a mill so near mine, as to draw away the custom,
unless the miller also intercepts the water.”), 4 Blackstone at 3
(noting that some aspects of Britain’s criminal law “seem to want
revision and amendment” and explaining that “These have chiefly arisen
from too scrupulous an adherence to some rules of the antient common
law, when the resons have ceased upon which those rules were founded . .
. “), 4 Blackstone at 81 (discussing the law of treason, and noting
that the “plain intention of this law is to guard the blood royal from
any suspicion of bastardy, whereby the succession to the crown might be
rendered dubious: and therefore, when this reason ceases, the law ceases
with it . . .”), 4 Blackstone at 330 (discussing the plea of a former
attainder, and noting “But to this general rule however, as to all
others, there are some exceptions; wherein,
cessante ratione, cessat et ipsa lex.”).
In other words, the phrase "a well regulated militia is
necessary to the security of a free state" is already the sunset clause written into the Second Amendment.
By
saying that this clause is no longer applicable, you have said that the
reason for the Second Amendment no longer exists. Thus, the Second
Amendment died roughly the time that Story said:
And
yet, though this truth would seem so clear, and the importance of a
well regulated militia would seem so undeniable, it cannot be
disguised,that among the American people there is a growing indifference
to any system of militia discipline, and a strong disposition, from a
sense of its burthens, to be rid of all regulations. How it is
practicable to keep the people duly armed without some organization, it
is difficult to see.There is certainly no small danger, that
indifference may lead to disgust, and disgust to contempt; and thus
gradually undermine all the protection intended by this clause of our
national bill of rights.
That's why
people want to see the militia part of the Second Amendment neglected. The
problem is that The Second Amendment was pretty much an irrelevance well
before it was written. See Adam Smith’s
Wealth of Nations, Book V, Chapter I (Of the
Expences of the Sovereign or Commonwealth), PART I: 16-27 (Of the
Expence of Defence) for a critique of the miltia system from 1775.
Anyway, Constitutional interpretation IS statutory interpretation. It is a statute, one of the first drafted by congress.
Where does this leave us?
As
a well constructed sentence, the Second Amendment says this: the people
have a right to bear arms, inasmuch as that pertains to forming a
regulated militia to secure a free state.
Nothing more, nothing less.
What of the right to personal self-protection?
Who knows! — the Second Amendment
does not talk about that.
The
main clause, “the right of the people to keep and bear arms shall not
be infringed”, cannot be read without the preceding absolute — otherwise
the Founding Fathers would have omitted that absolute.
(I
take it as given that they included in the Constitution only those
words that they thought should be there and be interpreted; that they
didn’t insert window-dressing or fluff.)
Moreover,
assuming the Founding Fathers were rather well educated, none of them
would have misunderstood the limiting condition that the initial
absolute put on the concluding main clause.
Importantly it sets the topic: the militia, not the individual.
We
can certainly hem and haw as to the meaning of individual terms in the
Second Amendment — “militia”, “well regulated”, “the people”,
“security”, “infringed”, “arms” — but we should be crystal-clear as to
the grammar.
If one thing is
manifest, it’s that the initial absolute puts a limit on the
applicability of the main clause; the latter cannot and should not be
interpreted without the former.
