From My White, Furry Paws.

Oh, hello there. Did you miss me?

Last you heard from me, I was a 10 month old kitten with a legal education and a dream. I now stand before you, bigger (15 pounds of pure fur, muscle and legal know-how¹), wiser, and more determined than ever to break down legal misconceptions. So, without any unnecessary formality (I wear a tuxedo every day, as it is), shall we begin?

Ushering in a new series I call “Know your Bill of Rights” let's talk about the Second Amendment. I've been watching (sleeping) while Human Male plays an alarming amount of Grand Theft Auto V², and I honestly can't get the sound of gun shots out of my head. If only I had thumbs!

Let's start with a little game. Without cheating or reading ahead, please type or write out, from memory, what you think to be the text of the Second Amendment. Take your time; I've got some stray carpet caught between my toes to clean out³.

All set?

If what you wrote is anything like “The People shall have the right to bear arms” you lose! You lose like the Humans lose whenever I try to teach them a game. Fetch does not involve me bringing the toy back, guys. Seriously⁴.

But back to the matter at hand. Don't feel bad if that's what you put down, because that's a fair paraphrasing of our modern, colloquial understanding of the right.

Here's what it actually says: “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.”

The object of that sentence being... Militia? The government shall not infringe a militia?

Interestingly, there isn't a whole lot of Supreme Court case law on the Second Amendment. In 2008, however, the Supreme Court handed down its decision in District of Columbia v. Heller, which you may remember being a Big Deal⁵. 554 U.S. 570 (2008). And it was, because Heller is really the only Supreme Court case that analyzes what the Second Amendment actually says. The case arose out of a D.C. Law that prohibited the registration of handguns as well as prohibited owning an unregistered handgun. If you did have a handgun in your home, it had to be either disassembled or equipped with a trigger lock at all times, so that it was rendered inoperable. See id.

Do you have flashbacks to high school teachers forcing you to diagram sentence structure⁶? If so, you may want to skip the rest of this post. Because Justice Antonin Scalia, for about the first 50 pages of his opinion, proceeds to analyze the grammatical structure of the Second Amendment⁷. No, that's not an exaggeration. Your Rory does not exaggerate⁸. Justice Scalia even references an Amicus brief filed by a bunch of linguists.

So, what does Justice Nino conclude? Essentially, he starts by breaking down the Amendment into its “prefatory” and “operative” clauses. As he points out, this particular sentence structure is pretty rare in the Constitution.

If you're at all interested in grammar, Constitutional law, or Justice Scalia, you should read the opinion. I really can't do it justice by summary, but to provide you with a few key snippets for color.

"Before addressing the verbs “keep” and “bear,” we inter­pret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary
defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (Similar)." Id Slip Opinion at 12.

And:

"Logic demands that there be a link between the stated purpose and the command. The Second Amendment
would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of
interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or
expand the scope of the operative clause. See F. Dwarris, A General Treatise on Statutes 268–269 (P. Potter ed. 1871) (hereinafter Dwarris); T. Sedgwick, The Interpreta­tion and Construction of Statutory and Constitutional Law 42–45 (2d ed. 1874).^9" Id. Slip Opinion at 4.

As Justice Scalia frames the issue, the question is whether or not the Second Amendment guarantees a right to the people (i.e. individuals), or to a Militia (i.e. an organization). Justice Scalia recognizes that the drafters wanted to ensure that the states could check the power of the federal government by raising and maintaining their own militias. He is not convinced, however, that this is the sole right codified in the Second Amendment.

"It is therefore entirely sensible that the Second Amend­ment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the mili­tia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codi­fied in a written Constitution. JUSTICE BREYER’s asser­tion that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that selfdefense had little to do with the right’s codification; it was the central component of the right itself."  Id. Slip Opinion at 26.

If you think you have found a hole in this logic, have no fear, Justice Scalia can close that right up for you. If hunting and self-defense are equally important rights contained within the Second Amendment, why aren't they also stated? Because, he says, those rights were so ingrained in colonial culture that no one thought they had to say them¹⁰.

What then, to make of the fact that one (or even a militia) of people with hand guns couldn't possibly stand their own against the might and power of the U.S. Military? Well that's just simply not the point.

"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 limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.^11" Id. Slip Opinion at 55-56.

So where does Heller leave us? The D.C. Law was deemed unconstitutional. Justice Scalia recognized that state laws creating restrictions on time, place, and type of weapons were perfectly fine, but that the Second Amendment prohibited the kind of out-and-out prohibition on handguns that was the subject of the case. Arguably, though, the first real Supreme Court analysis of the Second Amendment created more questions than answers. Like most issues of Constitutional jurisprudence, however, the law will likely follow political and social shifts, rather than the reverse.

Respectfully submitted,

Rory, Esq¹².

1Have no fear, the vet says I am not overweight.

2Let you think he spent a whole day violently massacring crowds, let me assure you that what alarms me most is the amount of time his character spent closing pop-up windows, doing yoga, and sitting on couches.

3No, I was not scratching the carpet. I am a Good Cat.

4Oh, and can you get all of the toys I've batted under the oven? Thanks.

5I wanted to call it a “Big F'ing Deal” because I am an adult now and I use adult language, but I am far to eloquent and cultured to resort to crass sailor-speak.

6Human Female, a college double-language major, frets about this in her sleep. I walk on her face to shut her up.

7Not even kidding, his historical analysis doesn't really make it past the 1930s. I think this is because he ran out of time.

8Except for when it comes to how hungry I am. Because if I don't make the Humans think I'm starving, who knows how long it would take them to feed me.

9No doubt the man is a genius. The question is whether or not he is too smart for his own good, or for our good.

10Doesn't this kind of logic fly in the face of a 64 page grammatical, textual analysis? Are you a Supreme Court Justice? I thought not.

11Did you think Constitutional analysis was supposed to have some bearing on how laws impact our daily lives? You haven't been here long, have you?

12If you're wondering about the footnotes, I'm going through my David Foster Wallace phase, being the young, educated, adult that I am.