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From: scc@reston.icl.com (Stephen Carlson)
Subject: Re: Second Amendment Language
Message-ID: <D25tAM.BB7@reston.icl.com>
Date: Mon, 9 Jan 1995 22:32:46 GMT
References: <3eo5tg$cv4@usenet.srv.cis.pitt.edu> <D23KxG.AKs@eskimo.com>
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In article <D23KxG.AKs@eskimo.com> rickw@eskimo.com (Richard Wojcik) writes:
>We can get into debates on political interpretations here, but I would like
>to confine this discussion to just linguistic issues, if that is possible.
>I do not want to totally divorce myself from attributing legal significance
>to the absolute construction.  I take the position that the final
>interpretation of the amendment is not purely a linguistic matter.  Some
>legal scholars take the view that constitutional language is
>"parsimonious".  That is, every word has significance.  This is so because
>the language was constructed by a group, rather than a single individual.
>If you accept this argument, then the absolute construction can be used to
>limit the scope of the main clause.  Given that very few other sentences in
>the document preface declarations with their justification, the existence
>of a "justifying" absolute in the 2nd is very significant.  The framers
>were calling attention to the use that the "arms" were to be put to.
>The Supreme Court seems to have adopted this view in the 20th century in a
>number of decisions, and that is why the 2nd has not been used successfully
>to strike down gun laws in the courts.  Not yet, anyway.

The absolute clause is grammtically separate from the rest of the
sentence, so its link to the main clause is vague, perhaps and
intentionally so.  Given that, and the difficulty in determining
what kind of limitation is exactly intended, caution is warranted.

Even if the Constitutional language is considered to be "parsimonious," 
it appears that this clause functions as a preamble, and so should have
the same legal significance as other preambles (like "We the People" in
the same document) and precatory language.  That is, it should have almost
no legal weight unless it necessary to "breathe life and meaning" into
the main body.  

The Supreme Court has hardly adopted this view or any other this century,
since it has not reviewed a Second Amendment since Roosevelt's first
term.  Constitutional law has evolved much since then (especially due to
the Warren Court), so it's hard to come to any definite conclusion.  The
Chief Justice has recently hinted, in a majority opinion, that the Second
Amendment is personal not collective, but that's the best we have recently.

Stephen Carlson
-- 
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