Gun ban case respondent: comma, give me a break!

Dick Anthony Heller, the Washington resident who brought the case now before the U.S. Supreme Court challenging the District of Columbia’s handgun ban, filed his respondent’s brief in the matter yesterday.

In his written argument, he aimed to throw water all over the argument by the petitioner – and others filing amicus briefs in the case – that the Framers meant only to protect the right of militia members to bear arms, and that is proven by the comma in language of the Second Amendment.

“No doubts or ambiguities arise from the words ‘the right of the people to keep and bear arms shall not be infringed,'” Heller’s brief states. “The words cannot be rendered meaningless by resort to their preamble. Any preamble-based interpretive rationale demanding an advanced degree in linguistics for its explication is especially suspect in this context.”

That last sentence is seemingly a swipe at the group of linguistics professors who filed an amicus brief asserting that the punctuation in the Second Amendment’s language shows that keeping a well-armed militia was not merely one purpose for the Amendment, it was the only purpose for the Amendment. Therefore, the professors argued, banning the possession of handguns for non-militia use is perfectly constitutional and the gun ban should be upheld. Their brief can be found here.

Heller’s brief can be found here.

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4 Responses to Gun ban case respondent: comma, give me a break!

  1. ctdonath says:

    Heller goes into great detail about this issue in the section titled “Preambles Cannot Negate Operative Text.” To quote a bit of this rather long section (which I would like to see this blog address in full, not just via a select sentence or two):

    By its own terms, the rationale of the Second Amendment’s preamble is not exclusive. The operative rights-securing clause is grammatically and logically independent of the preamble. Skilled diplomacy, a powerful army, or adherence to the constitution may sufficiently provide for “the security of a free state,” and still the people would enjoy their right to arms. Most critically, the preamble cannot contradict or render meaningless the operative text.

    The Framers were familiar with these rules of construction. One influential English precedent held:

    “I can by no means allow of the notion that
    the preamble shall restrain the operation of
    the enacting clause; and that, because the
    preamble is too narrow or defective, therefore
    the enacting clause, which has general
    words, shall be restrained from its full latitude,
    and from doing that good which the
    words would otherwise, and of themselves,
    import; which (with some heat) his Lordship
    said was a ridiculous notion.”

    The same Congress that passed the Second Amendment also reauthorized the Northwest Ordinance of 1787, containing this language: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Act of Aug. 7, 1789, ch. 8, 1 Stat. 50, 52. But nobody would seriously contend that were religion, morality, or knowledge one day found unnecessary for good government, schools should no longer be encouraged in the states of the former Northwest Territory.

    (I won’t quote all five pages here. Suffice to say: in the lexicon of the time, the prefix answers the frequent question “are military arms included?” with “yes, because people owning militia arms are necessary for national security.” Considering that the Founding Fathers had just completed a revolution against a tyrranical government, it hardly makes sense to accept an interpretation which gives exclusive right of arms to a potentially tyrranical government.)

  2. Kimberly Atkins says:

    ctdonath:
    Thanks for the comment. I try to keep the blog posts short and encourage comments like yours. The 66-page brief, which I link to, goes into great analytical detail, and the post was not meant to imply that the argument is summed up in a few sentences. Thanks for commenting!

  3. Mike Hansberry says:

    NEWSFLASH / Update on Heller v. DC

    The authorities reported earlier today that an ornery professor of selective history had punched and kicked the bucket.

    Upon hearing the news, several esteemed Professors of Linguistics were heard to remark “What a waste, the sick bastid broke his hand and he died!”

  4. ctdonath says:

    Filed on behalf of Heller, this brief analyzes the linguistics of the 2nd Amendment: http://www.gurapossessky.com/news/parker/documents/07-290bsacSecondAmendmentFoundation.pdf

    I look forward to your cogent blog thereupon.

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