William C. Roemer is full of it
He writes an anti-second amendment screed for the Coloradoan that says:
The text of the amendment is “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.”
Actually, it reads:
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 has only one comma. Some folks think that is important (for why they do, see here) but I don’t really think it is to the overall meaning.
The amendment consists of one sentence of 27 words. It cannot be interpreted in pieces, but only as a whole, the NRA to the contrary.
Indeed. But even the whole supports an individual rights view. As noted by Roy Copperud (whose credentials on the English language are quite astounding) notes:
The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people.
…
The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia.
…
To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: “Since 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 abridged.”
Roemer continues:
The principle debate concerns whether the right to bear arms applies to individuals or only to a militia.
Yes, that is the debate. And you just lost it. He continues:
The Supreme Court has never decided the issue; however, there is currently a conflict between two Circuit Courts of Appeals that make the issue ripe for review by the Supreme Court, but unfortunately the individuals involved in the two cases have not seen fit to appeal either case to the Supreme Court. See U.S. v Emerson 270 F. 3d 203 (5th Cir. 2001) is in favor of individual ownership and Silveira v Lockyer 312 F. 3d 1052 (9th Cir. 2002) is against individual ownership.
He’s sort of correct. While the Supreme court has never ruledon the amendment, it has acknowledged gun cases a number of times. David Kopel, who analyzed 35 Supreme Court cases involving guns, concludes:
Twenty-eight opinions remain, including nineteen majority opinions. Each of these opinions treats the Second Amendment a right of individual American citizens. Of these twenty-eight opinions, five come from the present Rehnquist Court, and on the Rehnquist Court there has been no disagreement that the Second Amendment is an individual right.
And the book entitled Supreme Court Gun Cases noted that:
the researchers conclude from the evidence that the Supreme Court has recognized an individual right to arms for most of the past two centuries.
Additionally, the fifth circuit acknowledges the individual right. So does the Congress and the President. So do the official platforms of both major political parties. So does the Justice Department.
He also concludes:
So the Second Amendment only applies to the federal government, leaving the states to regulate the ownership of weapons as it sees fit provided that the state legislation does not conflict with any federal law on the same subject.
Simply, the courts are wrong. Period. Congress, it seems, is looking to remedy that situation.
Update: The folks at KABA note:
Emerson had two writs of certiorari denied. The first on June 10, 2002 and another on July 2, 2004. In Silveira certiorari was denied December 1, 2003.
So, he’s wrong on many levels.
August 3rd, 2006 at 10:38 am
Wrong. It has three, exaclty as quoted by Roemer.
Here, Roemer’s the one in the wrong. Timothy Emerson and Sean Silveira both saw fit to appeal their cases to the Supreme Court; it’s just that the Supreme Court didn’t see fit to take either case on appeal.
Actually, that’s not “additional.” The Emerson case cited by Roemer was the case in which the Fifth Circuit acknowledged the individual right – albeit one just a tad too narrow to help Dr. Emerson himself.
August 3rd, 2006 at 10:47 am
Actually, The Second Amendment, as passed by the House and Senate and later ratified by the States, reads:
The hand-written copy of the Bill of Rights which hangs in the National Archives had slightly different capitalization and punctuation inserted by William Lambert, the scribe who prepared it. This copy reads:
And:
More here and at the links in the post.
August 3rd, 2006 at 11:14 am
Interesting argument, albeit weakened by the dearth of links to the sources referenced (e.g., the Statutes and Large link goes to a Wikipedia entry on the Statutes at Large, not to the statutes themselves). I agree that the commas don’t really matter all that much. If anything, the oddly-placed third comma matters the most, as it shows how silly and arbitrary the others are, regardless of who actually voted on which version.
But I guess it all boils down to this: I should have known better than to trust anybody named Lambert on any issue tangentially related to guns.
August 3rd, 2006 at 3:39 pm
We may well consider ourselves fortunate the the USSC has not the courage to grant cert to this issue regardless of which case is involved. After all, do we really want to trust a group of people with something this important when they are the same people that decided Kelo v. New London? I don’t trust them to decide on a dog food.
August 4th, 2006 at 8:58 am
Here’s a helpful link. Note that comma-man did a similar number on the original Second Amendment, which was finally ratified in 1992 as Amendment 27.