Repeal the Second Amendment, says former Justice Stevens.

I find it strange that anyone would argue that a modifying clause doesn't actually modify what follows within the sentence.  Why do people think it was there?  As an irrelevant, tangential thought?  If it was meant to be a completely separate thought, why was it not a completely separate sentence?

OMG. I can follow a discussion about Law or Politics, but this linguistics discussion is getting beyond me.

I have the Amendment in front of me. It is one sentence with two clauses separated by a comma. It appears that the noun is "Militia" which is capitalized. If, grammatically, a subordinate clause can have a noun then that noun is "right" not capitalized. 

Again, it's one sentence so how can the second clause not follow from and be subordinate to the first?

As to the other points in this thread there are many with which I disagree. For example it may be argued that the First Amendment, which prohibits Congress from passing certain laws, is superfluous because the Constitution did not grant Congress the power to do so in the first place, but that cannot be said of the Sixth Amendment, for example. 

While some of the ten Amendments are negative in tone, prohibiting actions by government, some, such as the Sixth and Seventh are positive. The former, particularly the First, confirm preexisting Rights, which some of you are are "natural" Rights. The latter appear to grant Rights. 

ml1 said:

I find it strange that anyone would argue that a modifying clause doesn't actually modify what follows within the sentence.  Why do people think it was there?  As an irrelevant, tangential thought?  If it was meant to be a completely separate thought, why was it not a completely separate sentence?

Madison's English teacher was far inferior to RealityForAll's English teacher?

maybe the first clause was just filler, the way some people start a sentence with "irregardless" or "hopefully."

LOST said:

ml1 said:

I find it strange that anyone would argue that a modifying clause doesn't actually modify what follows within the sentence.  Why do people think it was there?  As an irrelevant, tangential thought?  If it was meant to be a completely separate thought, why was it not a completely separate sentence?

Madison's English teacher was far inferior to RealityForAll's English teacher?

Someone I was talking to raised an interesting point about the difference between arms and ordnance in the minds of the Founders.  He suggested that, while hunting rifles might be considered "arms", military weaponry like assault rifles, artillery and grenades ought to be regarded as "ordnance" and, thus, outside the scope of the 2nd amendment.

I'm not sure what I think about that but it was an assertion that I had not seen or heard before.

Interesting.  I have never heard such a distinction either.  I will run that one down when I have an opportunity.

Klinker said:

Someone I was talking to raised an interesting point about the difference between arms and ordnance in the minds of the Founders.  He suggested that, while hunting rifles might be considered "arms", military weaponry like assault rifles, artillery and grenades ought to be regarded as "ordnance" and, thus, outside the scope of the 2nd amendment.

I'm not sure what I think about that but it was an assertion that I had not seen or heard before.

That distinction is irrelevant. The Amendment doesn't read "Eating meat being necessary for nutrition..."

Professor Eugene Volokh of UCLA wrote an interesting law review article entitled "The Commonplace 2nd Amendment."  See 73 NYU L. Rev. 793 (1998) or http://www2.law.ucla.edu/volokh/common.htm  

Volokh explains:  “The Second Amendment is widely seen as quite unusual, because it has a justification clause as well as an operative clause.  Professor Volokh points out that this structure was actually quite commonplace in American constitutions of the Framing era:  State Bills of Rights contained justification clauses for many of the rights they secured.  Looking at these state provisions, he suggests, can shed light on how the similarly structured Second Amendment should be interpreted.  In particular, the provisions show that constitutional rights will often -- and for good reason -- be written in ways that are to some extent overinclusive and to some extent underinclusive with respect to their stated justification."

Examples of State Constitutional Provisions (from Volokh’s Article) with Similar Justification/Prefatory Clause and Operative Clause:

        "The Second Amendment, unusually for constitutional provisions, contains a statement of purpose as well as a guarantee of a right to bear arms." 1  This unusual attribute, some argue, is reason for courts to interpret the Second Amendment quite differently than they interpret other constitutional provisions -- perhaps to the point of reading it as having virtually no effect on government action. 2

              My modest discovery 3 is that the Second Amendment is actually not unusual at all:  Many contemporaneous state constitutional provisions are structured similarly.  Rhode Island's 1842 constitution, its first, provides

The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . . 4

Compare this to the Second Amendment's

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. 5

The 1784 New Hampshire Constitution says

In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . . 6

The 1780 Massachusetts Constitution -- followed closely by the 1784 New Hampshire Constitution and the 1786 Vermont Constitution -- says

The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever. 7

I list dozens more such provisions in the Appendix.

              These provisions, I believe, shed some light on the interpretation of the Second Amendment:

• They show that the Second Amendment should be seen as fairly commonplace, rather than strikingly odd.
• They rebut the claim that a right expires when courts conclude that the justification given for the right is no longer valid or is no longer served by the right.
• They show that operative clauses are often both broader and narrower than their justification clauses, thus casting doubt on the argument that the right exists only when (in the courts' judgment) it furthers the goals identified in the justification clause. 8
• They point to how the two clauses might be read together, without disregarding either.

There is a rule of statutory (and contract) interpretation that says introductory clauses do not in and of themselves create rights or obligations but can be looked at in resolving ambiguities in the operative parts of the statute/contract.  Is the operative language of the 2nd amendment ambiguous?  I don't know.  It may not have been ambiguous in the 18th century but its arguably ambiguous now.   What are the outer limits on what constitutes an arm?   Are any regulatory laws about gun purchases and ownership an infringement on the right? 

This seem like it's simply a variation on the idea of the "good guy with the gun" myth -- and myth it remains. If we look at historical examples, we find that in many cases the victims did indeed have guns -- it's just that their attackers did as well.

 Take the classic go-to example of the Nazi slaughter of European jews, for instance -- you have to write the Jewish partisans out of history to claim the problem was sufficient lack of guns. Sure, as the hyperlink I provided notes, trains bound for the camps were derailed, and so we can assume at least a few lives were saved -- but really, against the full scale of such horror, that feels pitifully symbolic rather than substantive. Compare to the situation in Denmark, where the Jewish population was spared the death camps.

The problem with the "good guy with a gun" argument -- whether on the scale of a school shooting or a murderous regime -- is that the bad guys also have guns. The idea that a well armed populace will resist tyranny may be a comforting one, but history repeatedly shows that the well-armed populace is too often the willing accomplice of the tyrant. The variable isn't access to guns, it's how committed the average citizen is to resisting the dehumanization of their neighbor.

Jackson_Fusion said:

The 2nd exists because for a person to be free they can’t be deprived of the means of preserving that freedom. We are blessed that, today, we are not in a position to need arms to defend against a tyrannical government or political movement. There are millions of dead from just the last 100 years who would envy us that. Many (most?) of them did not expect things to go as they did, killed by their own government and in many cases neighbors.

Oh, I say this knowing that the usual mocking from the usual suspects will come, but I’ll point at the dead millions and ask, “was there something inherently inferior about those people, some flaw they possessed that we do not that allowed them to be laid so low? Or was there a special wickedness of blood in their persecutors?”

I don’t see any. If someone does, share.

Their were on the “losing team” as far as the majority in power were concerned. Being in that minority ended up, by virtue of birth in most cases, a death sentence.

Hopefully, as a society we continue to prize the value of the individual and preserve her rights. But if a society is lulled into a state of torpor and allows itself to be disarmed entirely and it turns out to be a mistake, it is a mistake it will be have the opportunity to make just once.

Remember, the majority doesn’t need arms. Why would it?

RealityForAll said:

Professor Eugene Volokh of UCLA wrote an interesting law review article entitled "The Commonplace 2nd Amendment."  See 73 NYU L. Rev. 793 (1998) or http://www2.law.ucla.edu/volokh/common.htm    

Volokh, the curator of The Volokh Conspiracy, a blog of libertarian contributors (23 men, 1 woman), did indeed write an interesting, not to mention influential, law review article 20 years ago. What did you think were its best insights?