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Much Ado About Commas: Lund on Second Amendment Grammar Debate

What was the intent of the founders when they drafted the Second Amendment?

That question has taken the form of a grammatical debate that may land in front of the U.S. Supreme Court, which should announce shortly whether it will rule on the constitutionality of the existing Washington, D.C., strict gun control ordinance. A ruling of the U.S. Court of Appeals for the D.C. Circuit inadvertantly ignited this controversy over commas.

The one-sentence Second Amendment contains three commas, the first and last of which are not in dispute. The second comma, however, has given rise to an argument over the meaning of the clause that precedes it relative to the remainder of the sentence.

To those who view the opening clause as absolute, the Second Amendment is really about the right of militias, rather than individuals, to bear arms. That interpretation would save the D.C. gun ban and limit the force of the Second Amendment.

Nelson Lund, Patrick Henry Professor of Constitutional Law and the Second Amendment, disagrees with that interpretation, saying the militia portion of the sentence "is grammatically independent of the rest of the sentence." In his view, "The Second Amendment has exactly the same meaning that it would have had if the preamble had been omitted." Those following Lund's reasoning would conclude that the Second Amendment protected an individual's right to bear arms.

It remains to be seen how proponents of Constitutional originalism on the Court will view the argument, should the Court elect to hear the case.

A question of commas. Period., Legal Times, November 5, 2007. By Tony Mauro.

Excerpt:
"When Supreme Court justices sit down Nov. 9 to ponder whether they should rule on the constitutionality of Washington, D.C.'s strict gun control ordinance, they should be forewarned that they are stepping into a quagmire.

"No, not the political quagmire over gun control. Another suddenly intense debate is enveloping the case--this one over what all those commas in the Second Amendment meant in late 18th century America.

"It may sound way beyond trivial, but it's not.

"You can blame the U.S. Court of Appeals for the D.C. Circuit for igniting this esoteric debate. It ruled on March 9 that because of the Second Amendment's second comma, the first half of the amendment--the militia half-- is basically a throat-clearing preface that does not qualify the individual right to bear arms that the second half protects. Jedge Laurence Silberman, who wrote the 2-1 decision, went on to conclude that the District's handgun ban violates that individual right.

"Grammarians and gun control backers quickly pounced, saying the D.C. Circuit got it flat wrong. Gun rights advocates have hustled to counter that view."

Read the article

Read Professor Lund's related paper, D.C.'s Handgun Ban and the Constitutional Right to Arms: One Hard Question?