December 16, 2007
IN TODAY’S NEW YORK TIMES, Adam Freedman looks at the role of commas in the Second Amendment. He’s right that people shouldn’t make too much of this — in fact, if I recall correctly the punctuation wasn’t the same in front of all the ratifying states — but this part, while not exactly wrong, stops short of the conclusion:
Likewise, when the justices finish diagramming the Second Amendment, they should end up with something that expresses a causal link, like: â€œBecause a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed.â€ In other words, the amendment is really about protecting militias, notwithstanding the originalist arguments to the contrary.
It’s short of the conclusion because he misses a key point: the Framers considered an armed populace important, but didn’t trust the government — at either the state or federal levels — to arm the people. Since the armed populace (the “militia” was said to consist of “the body of the people”) was essential as a check on government power, the government couldn’t be allowed to disarm it by neglect. Thus, the Second Amendment may be “about protecting militias,” but it does so by keeping the populace armed. In fact, Brannon Denning and I expanded on this point at more length in this article from the William and Mary Bill of Rights Law Journal a few years ago. Click “read more” for an excerpt.
UPDATE: Comments from Eugene Volokh. (Bumped).