2nd Amendment: Proper Grammatical Construction
The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1297.
Also see 2nd Amendment: Proper Constitutional Construction • 2nd Amendment: Reinforces the Community Self-Defense Structure as “NECESSARY” • Militia: Immune from Contemporary “Gun Control” • Militiamen Firearms Kept in the Home
2nd Amendment: Must be Construed in accordance with Certain Fundamental Rules of Constitutional Construction
- In its relationship to other parts of the Constitution, the Second Amendment must be construed in accordance with certain fundamental rules.
The relevant rules of constitutional interpretation.
In its relationship to other parts of the Constitution, the Second Amendment must be construed in accordance with certain fundamental rules.
1. A valid application of the Amendment must relate all of its particulars to every other provision in the Constitution that deals with the same subject-matter, so that “the supreme Law of the Land” (footnote 1) is read as an entirety, harmonizing all of its mutually interrelated provisions. Because, as with every complex statute, all of the parts of the original Constitution and the Bill of Rights are parts of the same legal instrument, “each [of them] must be considered in the light of the other[s]”, (footnote 2) “must be read in relation to each other”, (footnote 3) and “must be reconciled so as to produce a symmetrical whole”. (footnote 4) With the caveat that any purported construction of any of the General Government’s or the States’ powers which is not completely consistent with the Second Amendment must be erroneous.
2. The Second Amendment is one of the ten “further declaratory and restrictive clauses” that, compiled in the Bill of Rights, were “added” to the original Constitution “in order to prevent misconstruction or abuse of its powers”. (footnote 5) As with any statute, all other things being equal, “identical words used in different parts of the [Constitution and its Amendments] are intended to have the same meaning”. (footnote 6) So “[w]hen the same term which has been used” in one clause of the original Constitution is used in the Second Amendment, “it must be understood as retaining the sense originally given to it”. (footnote 7) This is especially true inasmuch as the purpose of the Second Amendment is, not to add something new, but instead (as noted above) merely “to prevent misconstruction or abuse of [the original Constitution’s] powers”—which the Amendment could never accomplish if its words meant something different from the selfsame words in the Constitution. For the most obvious examples pertinent here—“the Militia” and “the Militia of the several States” incorporated within the original Constitution (footnote 8) must be the selfsame “well regulated Militia” of which the Second Amendment speaks; and the “Arms” which the Amendment recognizes as within “the right of the people to keep and bear” must be (at least in type and serviceability) the selfsame “Arms” as to which Congress is “[t]o provide for * * * arming * * * the Militia”. (footnote 9)
3. The Constitution is not psychotic. One of its provisions cannot detract from, contradict, or least of all nullify either itself or any other provision. Just as some particular positive “effect [must] be given to each word of the Constitution”, (footnote 10) no negative effect can be assigned to the selfsame words, or read into other words in the Constitution. For “[t]he doing of one thing which is authorized cannot be made the source of an authority to do another thing which there is no power to do”. (footnote 11) Because all of the Constitution’s powers—and its duties and disabilities, too—“are of equal dignity”, none of them may “be so enforced as to nullify or substantially impair [any] other”. (footnote 12) All of “these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution”. (footnote 13)
1.) U.S. Const. art. VI, cl. 2.
2.) Hostetter v. Idlewild Bon Voyage Liquor Corporation, 377 U.S. 324, 332 (1964). Accord, United States v. Wong Kim Ark, 169 U.S. 649, 653 (1898); Cherokee Intermarriage Cases, 203 U.S. 76, 89 (1906); Talbott v. Silver Bow County, 139 U.S. 438, 443-444 (1891); Reid v. Covert, 354 U.S. 1, 44 (1957) (opinion of Frankfurter, J.).
3.) United States v. Universal C.I.T. Credit Corporation, 344 U.S. 218, 222 (1952).
4.) Federal Power Commission v. Panhandle Eastern Pipe Line Company, 337 U.S. 498, 514 (1949). Accord, e.g., Richards v. United States, 369 U.S. 1, 11 (1962).
5.) RESOLUTION OF THE FIRST CONGRESS SUBMITTING TWELVE AMENDMENTS TO THE CONSTITUTION (4 March 1789), in Documents Illustrative of the Formation of the Union of the American States, House Document No. 398, 69th Congress, 1st Session (Washington, D.C.: Government Printing Office, 1927), at 1063.
6.) Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932). Accord, e.g., Commissioner of Internal Revenue v. Lundy, 516 U.S. 235, 249-250 (1996); Gustafson v. Alloyd Company, Inc., 513 U.S. 561, 569-570 (1995); Ratzlaf v. United States, 510 U.S. 135, 143 (1994); Department of Revenue of Oregon v. ACF Industries, Inc., 510 U.S. 332, 342 (1994); Brooke Group Ltd. v. Brown & Williamson Tobacco Corporation, 509 U.S. 209, 230 (1993); Commissioner of Internal Revenue v. Keystone Consolidated Industries, Inc., 508 U.S. 152, 159 (1993); Estate of Cowart v. Nicklos Drilling Company, 505 U.S. 469, 479 (1992); Sullivan v. Stroop, 496 U.S. 478, 484 (1990); Sorenson v. Secretary of the Treasury, 475 U.S. 851, 860 (1986); Morrison-Knudson Construction Company v. Director, Office of Workers’ Compensation Programs, 461 U.S. 624, 633 (1983). Of course, if all other things are not equal, then this rule becomes merely presumptive, not absolute. Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 86-87 (1934); Atlantic Cleaners & Dyers, 286 U.S. at 433-434.
7.) See Hepburn and Dundas v. Ellzey, 6 U.S. (2 Cranch) 445, 45
8.) U.S. Const. art. I, § 8, cls. 15 and 16, and art. II, § 2, cl. 1.
9.) U.S. Const. art. I, § 8, cl. 16.
10.) Knowlton v. Moore, 178 U.S. 41, 87 (1900).
11.) Wilson v. New, 243 U.S. 332, 345 (1917).
12.) Dick v. United States, 208 U.S. 340, 353 (1908).
13.) Williams v. Rhodes, 393 U.S. 23, 29 (1968
2nd Amendment: Proper Grammatical Construction
As with all of the Constitution, the meaning of the Second Amendment must be gleaned from its own words and phrases. These should first be examined as a whole, then considered separately.
In its entirety, the Second Amendment consists of two clauses: an introductory subordinate or modifying clause—“[a] well regulated Militia, being necessary to the Security of a free State”, followed by an independent or main clause—“the right of the people to keep and bear Arms, shall not be infringed”.
Grammatically, “[a] well regulated Militia, being necessary to the security of a free State” is denoted a “nominative absolute clause”. Even contemporary American high-school students—as poorly educated as too often they are—should understand what an “absolute clause” is and does: (footnote 2) An “absolute clause” modifies the whole of the sentence in which it is contained, adding important information, sometimes (as in the case of the Second Amendment) the most important information in the sentence. An “absolute clause” identifies relationships between ideas expressed within the sentence—quite often, the reason for or the cause of what is expressed in the main clause.
In the late 1700s, no one fluent in the English language, let alone literate in pre-constitutional American law, would have read the Second Amendment with any other rule of grammatical construction in mind:
Anyone studying * * * English grammar in the eighteenth century would have understood how an absolute phrase works. And since the absolute phrase already had become a normal, naturalized English construction by then, any competent English writer at the time would have been able to use the absolute construction without having taken any formal grammar lessons.
* * * * *
Most American readers in the federal period, including those without formal grammar study, would have had no trouble understanding that the Second Amendment’s absolute construction functioned to make the Amendment effectively read: 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. (footnote 3)
This grammatical analysis is controlling, because the rule employed for construing statutes in the late 1700s required that if “the reason of the law” is “expressed in such clear and precise words, as to leave no doubt at all about the ultimate effect which the lawmaker designed to produce, or about the end which he designed to obtain”, then “the meaning of the law is to be determined by the reason of it”. (footnote 4) “If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, * * * the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction.” (footnote 5) Which in the case of the Second Amendment means that the pith (if not the entire substance) of “the right of the people to keep and bear Arms” must be ascertained by reference to the preceding clause. For, plainly enough, “the reason”, “effect”, “end”, and “objects” of the Amendment are “expressed in * * * clear and precise words” in the Amendment itself, with an emphasis to be found nowhere else in the Constitution: “[a] well regulated Militia, being necessary to the security of a free State”.
And because (as just noted), “‘[i]n expounding the Constitution * * * , every word must have its due force, and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added’”, (footnote 6) therefore, whatever else the “right of the people” might entail, it must to a decisive degree always conduce to, operate within, and advance “[a] well regulated Militia”, so that “[a] well regulated Militia” can conduce to, operate within, and advance “the security of a free State”. Reciprocally, “a free State” must be one with “[a] well regulated Militia”. And “[a] well regulated Militia” must be one in which “the people” participate through the untrammeled exercise of their “right * * * to keep and bear Arms”. “[T]he right of the people to keep and bear Arms” is not merely incidental to “[a] well regulated Militia” and vice versa; instead, each is integral to and inextricable from the other. So, “the right of the people to keep and bear Arms” cannot be interpreted without reference to “[a] well regulated Militia”; and “[a] well regulated Militia” cannot be understood without reference to “the right of the people to keep and bear Arms”. (footnote 7)
In determining what powers have been delegated to the United States, prohibited to the States, or reserved either to the States or to WE THE PEOPLE, the original Constitution and the Bill of Rights must be read and understood as they would have been parsed at the times of their ratifications by the individuals most concerned with the matter: “the good People of the[ American] Colonies”, in whose name and by whose authority “The unanimous Declaration of the thirteen united States of America” was put forth in 1776; and who then identified themselves as “WE THE PEOPLE of the United States”, who “ordain[ed] and establish[ed] th[e] Constitution” in 1788, and whose legislatures ratified the Bill of Rights by 1791. And whatever its language might signify to modern ears, an Amendment to the Constitution must be read in the sense most obvious to the common man’s understanding at the time of its ratification—for it was proposed for adoption by the public at that time. (footnote 8) So no Americans of that era would ever have doubted that the original Constitution and the Bill of Rights said exactly what THE PEOPLE meant them to say, according to the documents’ literal terms. “As men, whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.” (footnote 9) “It cannot be supposed that the framers of the Constitution did not use th[e] expression[s they chose] with deliberation or failed to appreciate [those expressions’] plain significance. * * * To disregard such a deliberate choice of words and their natural meaning would be a departure from the first principle of constitutional interpretation.” (footnote 10) Furthermore, no Americans of that era would ever have denied that, as their country’s “supreme Law of the Land”, (footnote 11) the Constitution was to be construed in none other than “the light of the law as it existed at the time it was adopted”. (footnote 12)
1.) Williams v. United States, 289 U.S. 553, 572-573 (1933), quoting Holmes v. Jennison, 39 U.S. (14 Peters) 540, 570-571 (1840) (opinion of Taney, C.J.). Accord, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803). See also Griswold v. Connecticut, 381 U.S. 479, 490-491 (1965); Myers v. United States, 272 U.S. 52, 151-152 (1926); Knowlton v. Moore, 178 U.S. 41, 87 (1900); Blake v. McClung, 172 U.S. 239, 260-261 (1898).
2.) See, e.g., Donald W. Emery, John M. Kierzek, & Peter Lindblom, English Fundamentals, Form B (Needham Heights, Massachusetts: Allyn and Bacon, Eleventh Edition, 1999), at 114-115.
3.) BRIEF FOR PROFESSORS OF LINGUISTICS AND ENGLISH DENNIS E. BARON, Ph.D., RICHARD W. BAILEY, Ph.D. AND JEFFREY P. KAPLAN, Ph.D. IN SUPPORT OF PETITIONERS, District of Columbia v. Dick Anthony Heller, Supreme Court of the United States, No. 07-290 (filed 11 January 2008), at 11, 14. Ironically, the Professors submitted their brief in support of denying average Americans in the District of Columbia a right to possess a handgun even for the purpose of individual self-defense in those citizens’ own homes. Although they correctly observed that, as a matter of linguistics, the Amendment inextricably links “the right of the people to keep and bear Arms” with “[a] well regulated Militia”, the Professors apparently had no inkling that, as a matter of legal history, “a well regulated militia” is always “composed of the body of the people, trained to arms”. Virginia Declaration of Rights (1776) art. 13 (emphasis supplied). Therefore they were unaware that, the closer the connection between “the right” and “[a] well regulated Militia”, the greater the number of individuals entitled to be armed at all times—with military-grade rifles, as well as handguns—quite in contradiction of the result the Professors desired the Supreme Court to reach. Proving once again that “a little learning is a dangerous thing”.
4.) T. Rutherforth, INSTITUTES OF NATURAL LAW, BEING THE SUBSTANCE OF A COURSE OF LECTURES ON GROTIUS DE JURE BELLI ET PACIS [1754-1756] (Baltimore, Maryland: William and Joseph Neal, Second American Edition, 1832), Book II, Chapter VII, at 415. See also W. Blackstone, Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes & Appendix, 1771-1773), Volume 1, at 59-62. As elucidated by Rutherforth especially, the rules of statutory construction had antecedents both in international and in English law, and were doubtlessly well known to and accepted by Americans during the pre-constitutional period. See, e.g, William W. Crosskey, Politics and the Constitution in the History of the United States (Chicago, Illinois: The University of Chicago Press, 1953), Volume 1, at 364-365.
5.) Gibbons v. Ogden, 22 U.S. (9 Wheaton) 1, 188-189 (1824).
6.) Id., at 1.
7.) In the Wonderland of contemporary “judicial review”, however, this self-evident constitutional proposition falls by the intellectual wayside. For, as of this writing, a majority of the Justices of the Supreme Court contend that “the right of the people to keep and bear Arms” need have no interpretive connection at all with “[a] well regulated Militia”. See District of Columbia v. Heller, 554 U.S. 570, 576-628 (2008) (Scalia, J., for the Court).
8.) See Adamson v. California, 332 U.S. 46, 63 (1947) (Frankfurter, J., concurring).
9.) Gibbons v. Ogden, 22 U.S. (9 Wheaton) 1, 188 (1824).
10.) Wright v. United States, 302 U.S. 583, 587-588 (1938).
11.) U.S. Const. art. VI, cl. 2.
12.) Mattox v. United States, 156 U.S. 237, 243 (1895). Accord, United States v. Barnett, 376 U.S. 681, 693 (1964). Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1296-1297.