Grammar and the Second Amendment
The Editors
Barbara Newman in the LRB, 22 March:
The Latinate framers of the US constitution employed an ablative absolute in the 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.’ An interpreter who favoured regimen would argue that the ablative clause determines the sense of the main clause; hence, the state has the right to maintain an army. Those who favour the absolute, as American courts have done, bracket the militia clause and take the main clause to mean that citizens may own as many firearms as they choose. The difference between constructions amounts to roughly 12,000 murders a year.
Comments
"It being necessary for you to go to the shops, I lend you my car for an hour"
Can you use the borrowed car for any purpose? No.
As SaxoP writes the argument centres on "well-regulated" and "keep and bear" and any lawyer can construct an intereptation that complies with the amendment and still restricts the sale of arms (by type and to whom they can be sold).
The issue is whether there is the political will to do so and to my mind this is where our current (and recent) batch of poltiicians fail so woefully. Instead of entering politics to improve things (right or wrongheadedly) they seem now only to want to occupy office for as long as possible. Obama's concerted push on healthcare suggests he is different, changing this law would be almost as great an achievement.
streetsj thinks of 'militia' as being totally non-state. But it's not clear-cut.
I would guess that 'militia' here is roughly between the evolving meanings recorded by OED II.3: "the body of soldiers in the service of a sovereign or a state (obs.), but subsequently: a military force raised from the civilian population of a country or region, esp. to supplement a regular army in an emergency".
So the reason for not infringing the right of the people to bear arms is that otherwise they would not be available to serve the state in an emergency. That's how the Swiss conceive their liberal firearms policy, as part of state military service (there is no other army), and they have a very low gun death rate. Gun ownership is strongly associated with civic duty, contribution to collective state action. In US, the association is with freedom from the state & individuals 'defending' not the public good but their unregulated private interests. It's the latter that goes against the Amendment. Not that it will be easy to inculcate the distinction.