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Picture of bethree5
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I’m one of the regular commenters on Diane Ravitch’s blog, where the discussions revolve around public-ed, social and political topics. The regulars are mostly teachers, along with a few parents of current K12 students. This was (in part) my contribution to a 6/3/22 post entitled “Why the AR-15 Should Not be Sold to Civilians.”

“The 2nd amendment was adopted in 1791. “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.”

“Both DC Circuit courts and SCOTUS decode the grammar as follows: “the second comma divides the amendment into two clauses: one ‘prefatory’ and the other ‘operative.’

“It does no such thing.

“The punctuation is not ambiguous, it is true to grammar of the era, which still pertains today. Today we would eliminate the 1st & 3rd commas, which were the sort of thing inserted for ‘taking a breath’ while orating– & the amendment would read like this: “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.” It makes sense in historical context: the govt needs to be able to call up well-trained militias in its defense [since the need for a standing army is still being debated]; militias are made up of trained ordinary citizens; they need to be allowed to keep (at home) arms they can bear (carry) when called up.

“Grammatically speaking, the sentence is called “the absolute construction,” where a clause consisting of a nominative noun [“militia”] and a participle [“being”] is placed alongside a 2nd clause, indicating their meaning is linked in a whole. Absolute construction does not mean 1st clause “prefatory,” 2nd clause “operative.” The two clauses are syntactically linked. [For exhaustive discussion/ detail/ backup, see http://faculty.las.illinois.ed...aron/essays/guns.pdf

“Consider two examples of the absolute construction given in widely-used grammars of the period when the 2nd amendment was adopted:
1.From Noah Webster, “Rudiments of English Grammar” (1790): “They all consenting, the vote was passed.”
2.From Lyndley Murray’s popular school grammar (1790): “His father dying, he succeeded to the estate.”
In both sentences, two clauses are grammatically independent, but linked semantically: the second cannot happen without the first. (Semantics is the branch of linguistics and logic concerned with meaning.)

“Somehow in the Heller case, the DC Circuit courts & SCOTUS [including originalist Scalia who wrote the decision] got away without researching the grammar at all– they just arbitrarily decided that the 1st clause was “prefatory” and the 2nd “operational.” (Not English grammar!)”
--
Another regular-- a terrific writer with a background in textbook publishing—added:
“To those not following Ginny’s argument, an absolute construction modifies an entire clause and not just a specific word. So

“Participial phrase: Used for cleaning chains and sprockets before lubricating them, a degreaser is a necessary part of any bicycle maintenance kit. (The participial phrase “Used for . . . them” modifies the noun “degreaser.”)

“Absolute construction: A degreaser being necessary for cleaning chains and sprockets prior to lubricating them, you should have one in your bicycle maintenance kit. (The absolute construction consisting of a noun phrase (“a degreaser”) and a participial phrase (“being . . . them”) modifies the whole of the following clause (“you . . . kit”).

“Absolute constructions get their name from the fact that they don’t have a typical syntactic relation to specific words (e.g., an adjective or determiner or quantifier modifying a noun, and in that sense are absolute (i.e., stand on their own). However, the “stand on their own” part emphatically DOES NOT mean that absolutes are unrelated to the rest of what is going on in a statement. In fact, they generally refer to the time, cause, or circumstances of an action as a whole, as in, the keeping and bearing of arms is a necessary circumstance for having a well-regulated militia.”
 
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Good work! I would add that the SCOTUS ignores the modifying phrase, "well-regulated."

Just to make things murkier for some, clearer for others,, see the Unites States Militia Code: https://uscode.house.gov/view....ter12&edition=prelim
 
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Exactly, Geoff. Perhaps I'm too cynical, but it's hard to believe the DC Circuit judges-- much less the originalist's originalist Scalia-- never looked into the grammar. The rest of the Heller decision [with one exception, covered in Breyer's dissent] is scrupulously, exhaustively researched using originalist principles. Their torturous parsing of the phrasing conveniently dismisses the regulated militia segment as "prefatory"-- mere judicial throat-clearing. Which allowed them to change the meaning of the 2nd Amendment to conform to their political agenda.
 
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Wow, I love that, Bethree!

Even then, however, Scalia's decision absolutely states that reasonable (no guns in school) regulations are still allowed: ""Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

Why is it the pro-gun maniacs forget that part?
 
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Right you are, Kalleh. Hope you can bear with another long-winded post & give me your input, folks.

Pages 54-55 of the Heller decisión are a roadmap to constitutional gun control laws. These pages indicate is constitutional to…
--prohibit concealed carry
--prohibit possession of firearms by felons or the mentally-ill
--prohibit carrying firearms in sensitive places such as schools and government bldgs.
--impose conditions and qualifications on the commercial sale of arms
--prohibit the carrying of dangerous and unusual weapons

However, that last one—“dangerous and unusual weapons”—seems to be undermined by the subsequent paragraph. One would like to have the constitutional option to consider semi-automatic rifles and handguns, as well as large-capacity magazines, and even any gun capable of being operated with large-capacity magazines, as “dangerous and unusual.”

Help me parse this paragraph, folks. I really don’t get it (especially the first sentence).
“It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have lim ited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”

I think what I’m reading there is, tough patooties, you can’t ban “M-16 rifles and the like” [i.e. AR 15 et al], because nowadays a militia, “to be as effective as militias in the 18th century,” would in fact use such weapons. Boo-hoo, we can’t change “the right” to carry them-- even though militias were long ago replaced by the National Guard, and National Guardsmen are allowed to keep them in their homes [at least in some units, and subject to licensing & umpty-ump regs].

But what has that got to do with the Heller case against DC residents keeping handguns in their homes for self-defense? Seems to me the Heller decision (purposely?) muddies the distinction between members of “militia” (National Guard) and ordinary citizens. The main problem IMHO is this giveaway: “the degree of fit between the prefatory clause and the protected right.”

Am I wrong? The whole Heller decision seems to balance on an egregious grammatical error. In my first post I started with “the punctuation is not ambiguous.” “Not ambiguous,” i.e., doesn’t require legal interpretation. The 2nd Amendment, grammatically, is an “absolute construction,” so there is no reasonable basis—and certainly no “originalist” basis-- for separating the first clause as “prefatory” in order to claim that the second clause is independent and establishes a constitutional right for ordinary [i.e. not “militia”] citizens to bear arms anywhere -- in one's home -- for self-defense. As I read it, the constitution is silent on non-military citizens’ right to bear arms, as well as on the right to self-defense. The latter doesn’t need constitutional affirmation, does it? It’s supported by centuries of common law, and explicit in criminal law nationwide.

I’ll not bore you with the last point against Heller, which appears in the subsequent section & is addressed in Breyer’s dissent. Summary: it appears to make all handguns (including semi-automatic with large magazine) fine for in-home self-defense, & does so by suddenly departing from the originalist framework.
 
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For context, review the series of gun-control laws Australia has put in over the last 25+ yrs since their Port Arthur massacre. (Google “Gun Laws of Australia wiki”.) They do not actually “ban” anything. They classify firearms. They register, license, monitor, require annual renewals-- & control sale/ transportation for sale. [Each additional firearm you acquire costs a pretty penny for licensing, & has a 28-day waiting period.] Military/ “dangerous/ unusual” arms are the highest level-- the hardest to acquire, by virtue of a series of requirements to attain license to possess. Each classification focuses first on “lawful reasons to possess”-- none of which is self-defense.

As there are heavy penalties for being found in possession of unlicensed firearms, there are amnesties for turning in arms based on any new restrictions-- some of these have been buybacks by govt at market price [notably a one-year-long buyback period after the 1st set of laws, which resulted in reducing privately-owned firearms by prox 1/3]. They haven’t had a mass shooting since the Port Arthur massacre. They have had some shootings, & updated restrictions are mostly based on lessons they’ve learned from those— others derive from the one dozen govt studies published on effectiveness of gun laws over those 26 yrs. [Compare to US kibosh on funding for gun violence study by natl health agencies over roughly the same period-- just barely started refunding 4 yrs ago.] A recent study concludes that Australia did have a “gun culture” before 1996, and no longer does.
 
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We oughta get you to testify before the SCOTUS!

What I find interesting about Australia is that its first European residents were criminals who'd been sent there to get rid of them.
 
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