Monday, December 17, 2007

Eats, shoots and leaves

Speaking of Taschenmunition...

There are various arguments in favour of allowing the civilian possession of firearms (some of which are rather good ones).

However, in the American case, I've always found the constitutional one to be the weakest. It is based upon the US Constitution's Second Amendment:

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.

Whether taken literally or placed within in its historical context, I have always thought that the Amendment deals not with the possession of weapons for any reason, but only in terms of supporting a well regulated militia.

This is not to say that weapon possession for other reasons should necessarily be prohibited, but it does suggest that any 'right' derived from the Second Amendment is limited to a specific purpose.

(An extensive argument against this position can be found here.)

In any case, the Second Amendment's meaning is being revisited by the U.S. Supreme Court as it considers a lower court's decision to strike down Washington D.C.'s strict gun law.

And, apparently, one of the key issues in this case will be...comma placement.

In 'Clause and Effect', Adam Freedman considers the issue, pointing out the argument of the judge who sought to overturn the D.C. ban:

The decision ... cites the second comma (the one after “state”) as proof that the Second Amendment does not merely protect the “collective” right of states to maintain their militias, but endows each citizen with an “individual” right to carry a gun, regardless of membership in the local militia.

How does a mere comma do that? According to the court, the second comma divides the amendment into two clauses: one “prefatory” and the other “operative.” On this reading, the bit about a well-regulated militia is just preliminary throat clearing; the framers don’t really get down to business until they start talking about “the right of the people ... shall not be infringed.”

A brief prepared by a group that agrees with the judge's decision has made a similar point:
Nelson Lund, a professor of law at George Mason University, argues that everything before the second comma is an “absolute phrase” and, therefore, does not modify anything in the main clause. Professor Lund states that the Second Amendment “has exactly the same meaning that it would have if the preamble had been omitted.”
In his essay, Freedman looks at the issue of 18th century comma usage and, by way of a little Latin, reaches the following -- fully sensible -- conclusion:

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.”

Likewise, when the justices finish diagramming the Second Amendment, they 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 originalist arguments to the contrary.

Not that arguments about punctuation are going to convince anyone who already has a strong view on this matter. But still, it's a well-written (and punctuated) essay.

Personally, my favourite collision between politics and punctuation must be Whig MP Richard Brinsley Sheridan's 'apology' to one of his colleagues in the House of Parliament:

"Mr. Speaker, I said the honourable member was a liar it is true and I am sorry for it. The honourable gentleman may place the punctuation where he pleases."

(Courtesy: Eigen's Political & Historical Quotations.)


Mr. Joyboy said...

Love the Sheridan quotation.

As for the Second Amendment, the problem is that even if you accept the ingenious Latin reasoning concerning the comma, it doesn't get you far enough.

The mention of militias in the Second Amendment does not by any means have to be construed as limiting. If we passed a law saying "Because the citizens of Freedonia have the right to be free of economic exploitation, it shall be a crime to charge more than 15% interest in Freedonia." Here, we would generally interpret the first clause as (what lawyers, one of which I is) call purposive -- as stating the purpose of the following regulation.

However, the purpose stated in the law does not necessarily have any limiting meaning. For instance, in our example, you would have a hard time arguing that you can charge over 15% if it would not be exploitation in that context, or that a 12% interest rate could be illegal if, in the particular circumstances, it constituted exploitation. The only truly operative part of this example is the second clause, the first is pretty much decoration.

This means that a completely coherent reading of the Second Amendment could also be: "Because well-regulated militias are desirable, among other very good reasons which we choose not to mention here for space reasons, your right to keep and bear arms shall not be infringed."

My position on this is that it's pretty dangerous to argue that the Second Amendment is thus limited, because there are lots of other Constitutional provisions which are grammatically very similar, and which we would not want to see limited. Sanford Levinson (not a gun nut) has an illuminating piece about the legal debate here:

Best to just split the difference: proclaim a right to own guns, and then give the government tons of leeway to regulate, given the inherent danger presented by pistols' portable lethality. One of the things I don't like about American political culture is its repeated tendency to get hung up on exactly what some phrase in the Constitution might mean. These debates end up being a distraction from a genuine policy debate.

J. Carter Wood said...

Mr. JB,

Yes, I love the Sheridan comment: how impoverished political discourse has become since the early nineteenth century.

Thanks for your clear and sane reaction. I wish all discussions about gun rights could be so civilised. And I'll have to check out Levinson's commentary when I get a chance.

I agree fully with your conclusion that some constitutional debates get in the way of a real policy debate.

My preference would be to move the gun debate to the same level of (most) policy debates, i.e., on an evaluation of costs and benefits and reaching a regulatory balance.

(Not that I think, of course, that most debates are that objective: they are all accompanied by other issues like 'values' or 'traditions'.)

And on that basis, I would arrive -- once again -- pretty much where you suggest: guns are allowed but closely regulated. (The devil residing, as ever, in the details.)

In some ways, though, I think that is precisely what Freedman's argument aims at: seeking a way out of the obsessed comma-mongering minutiae of constitutional interpretation. (He, after all, is responding to pre-existing comma-based arguments, both pro and contra, rather than trying to inject that kind of cleverness himself.)

One question though.

I'm not a lawyer (nor have I ever played one on TV), but looking at your Freedonian taxation example, it would seem to me that the 'purposive' bit at the beginning is more than mere 'decoration'.

Assuming, hypothetically, that court cases arose about allowing 17% interest or forbidding 12% interest in exceptional cases, surely the courts would take the purposive clause into account in reaching their decisions, as it would provide guidance for deciding those exceptions.

And...of the top of my head (and without bothering to in a rush), isn't most of the rest of the Bill of Rights far more...decisive? I.e., not based on complicated purposive clauses? I had the sense that the 2nd Amendment was unusual in that regard.


Thanks again for the thoughtful comment and useful link!

Keep it joyful.