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Politics : Libertarian Discussion Forum -- Ignore unavailable to you. Want to Upgrade?

To: Gordon A. Langston who wrote (3668)	5/15/2000 2:13:00 AM
From: chalu2	Read Replies (2) \| Respond to of 13062

Mr. Schulman's questions to the grammarian are indeed interesting. The inquiry, however, is not only grammatical, but also historical and legal. I've already provided my present take on the historical context in the immediately preceding post. The legal issue--and I am sure that many lawyers were involved in the drafting of the Bill of Rights--is as complex, but there are some basic rules that have nothing to do with grammar. The first basic rule is: no part of a law is to be read as meaningless. However, the grammarian's conclusion is that the well-regulated militia language is meaningless--the sentence would say the same thing and mean the same thing with or without those words. This is generally not acceptable in legal construction--the rule is that in important laws, all words were placed there for a reason, all mean something, and no phrases or clauses were added merely for the purpose of adding excess verbiage. Thus, any court looking at this would have to look hard at why this language was put there, and would not ordinarily be inclined to read it as surplus or meaningless. That leads to a second legal rule of construction, and that is: if clause A precedes clause B, is clause B dependent on the existence of the conditions stated in clause A? Generally, the need for the state run "well-regulated" militia would be viewed as a "condition precedent", so as to avoid an interpretation that the drafters threw unnecessary surplus language into the Amendment. Thus, we have the present legal mess. If the right to keep and bear arms has nothing to do with whether the state needs to raise a well-regulated militia, then why is the language there at all? Mr. Schulman's consultation with a grammarian on this issue is a recognition of sorts as to how troublesome the well-regulated militia language is. I do not think the courts would be so ready to read the first half of the Amendment as having no affect at all on the second half, or as having been placed there for no purpose at all. [I will suggest an alternative theory, as yet undiscussed here. The enumeration of the drafters' reason for codifying the right to bear arms was meant to head off a conclusion that they thought other possible reasons people may have to want to bear arms were sufficient to codify the right--such as waging a war to achieve state secession, or a revolt against the state government, etc.]