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Mar 30,2007
Interpreting the Second Amendment
by Lionel Van Deerlin

It has long been a bane of civic life in the District of Columbia - headquarters town for what we are pleased to call the greatest democracy on Earth - that some 570,000 residents enjoy very limited self-government. Roughly equal in population to at least a half-dozen states, folks in D.C. have no voting representation in Congress.

Worse, a "District Committee" in the House of Representatives has long exerted more power over the city of Washington than is granted locally elected officials. The district's occasional efforts to make law within its own borders often have been swatted down - as, most recently, a local ban on the ownership, sale or use of firearms. A divided federal appeals court in early March ruled 2-1 that this ordinance violates the Second Amendment to the Constitution, and may no longer be enforced.

Efforts to discourage gun use in Washington had long been an object of contempt within that most powerful of lobbies, the National Rifle Association. The organization enjoyed pointing out that although our national capital laid claim to the nation's toughest gun law, it regularly falls within a handful of U.S. cities posting the highest toll of murder by gunfire.

Very true, this - and for an obvious reason. While local law has barred gun sales within D.C.'s limits, anyone in search of a weapon need go no farther than into neighboring Maryland or Virginia, where - as in so many states - a free-spending NRA has successfully frustrated legislative efforts to halt the gun traffic.

With or without legislative clout, however, the District of Columbia could shortly play a passive role in settling a long-festering national struggle over firearms. Its lawyers have petitioned for an en banc ruling by the full U.S. District Court resolving that 2-1 Second Amendment split within its 3-member panel. The desire of Washington residents for meaningful gun control could yet require the U.S. Supreme Court to decide once and for all the intent of what is surely the most highly disputed paragraph in our entire Constitution.

So join me, won't you, in traipsing briefly through some history that could shortly come into play. With the U.S. Constitution mainly in place after the Founding Fathers' 1787 convention, Thomas Jefferson led an anti-Federalist campaign for a Bill of Rights setting certain limits on the new government. He left the actual writing of these first 10 amendments to another up-and-coming young Virginian, James Madison.

Today, more than two centuries later, it seems pretentious to fault this man's work. Madison got off to a great start. His First Amendment forever protects our freedom of speech, of religion, of press and public assembly. But the Second Amendment, dealing with gun rights, is beset with a confusing introductory clause, plus a burst of commas that allow varied meanings. Any court making its way through this legal patchwork may have embarked less on a matter of governance than an assignment in advanced English composition.

See if you don't agree. Here are the wording and the baffling punctuation of the Second Amendment with which the bewigged Madison has frustrated generations of Americans:

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."

Writing styles may differ from one generation to the next. But we seem entitled to ask - why all those commas? And doesn't the reference to "a well regulated Militia" suggest Madison intended limiting arms access to publicly supported military units such as the National Guard? That conclusion seems logical - not only to me, but to countless others who find horror in an annual toll of 30,000 or more Americans in needless gun deaths.

But what of the considerable number who favor free access to personal weaponry? They have a point, too. Strip the Second Amendment of the puzzling wordage that precedes that middle comma (leaving only "the right of the people to keep and bear Arms, shall not be infringed.") Then any household may feel free to retain Smith & Wesson's full catalog, plus a 105-mm howitzer - as backup, understand - out in the garage.

Yes, we'd still be stuck with another of Madison's maddening commas, but linguistic purity seems unlikely to stand in the way. The NRA's smart ones always have persuaded friendly legislators to overlook a dependent clause and all those commas.

Which leaves it up to the courts, maybe, to get Madison out of the sentence-parsing hole he's dug.

2230 times read

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Did you enjoy this article? Rating: 4.33Rating: 4.33Rating: 4.33Rating: 4.33Rating: 4.33 (total 18 votes)

  • Madison (a Virginian) hewed closley to his mentor George Mason's Virginia Declaration of Rights )as did Jefferson). Mason was one of those insisting on a Bill of Rights beffore he agreed to sign off on the Constitution. His version, in the Virginia Declaration of Rights, reads http://www.yale.edu/lawweb/avalon/virginia.htm: XIII That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power. His language may shed some light on the Founders' intent.
  • (Posted on April 26, 2007, 6:42 am Gerry Wenham)

  • What an idiotic load of drivel. Willy-nilly commas were the order of the day in Madison's time and there are different commas in different drafts of the Second Amendment. The author suggests looking into history for an answer to a conundrum (which was not a conundrum for the first 100 to 150 years after the Bill of Rights was written), but then falls back on, "it seems to me..." The fact is the Second Amendment means exactly what it says - what any reasonable thinking person would see it says: That it is important for the people to be able to form an army to maintain their freedom, and the citizens should never be disarmed. The historical debates about the amendment and the various versions which were tried - including a version which clearly said that citizens right to arms was only for defense of the state and was soundly rejected - all make it clear that meaning and intent of the Second Amendment was two-fold with the clauses supporting each other, not one limiting or excluding the other. By the way, Maryland has pretty strict gun control while Virginia is pretty lax. The metropolitan areas of Virginia bordering DC have much lower crime rates than the metropolitan areas of Maryland bordering DC. If the majority of voters in DC wanted to pass a law forbidding the practice of religion would it be undue interference for the court to intervene? Jeff Knox FirearmsCoalition.org
  • (Posted on March 30, 2007, 5:46 pm Jeff Knox)

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