Tuesday, February 17, 2009

Commas and the "Original" Version of the Second Amendment

The Original Version of the Second Amendment
 Updated February 2, 2013
One of the interesting claims made by some who have argued Second Amendment intent in the past was that nothing could be determined about the subject without relying on the "original" version of the amendment. Such a claim was advanced to indicate that only the first version, that from Congress, could be relied upon because the "original" Second Amendment had three commas that formed four different clauses. The extensive historical facts relating to Bill of Rights development prior to and during the First Congress in dealing with two clause predecessors were not overly important to such interpreters nor helpful for their interpretation. Knowledge of the Second Amendment's ratification history makes any argument based on comma content appear rather trivial. So what is known about Second Amendment commas and ratification by the states?

When Congress developed the proposed amendments to the U.S. Constitution in 1789, it was working with separate copies of the amendments that were printed by and for the use of the House and the Senate, respectively. [The Founders' View of the Right to Bear Arms, pp.190, 198] Handwritten changes were made to those copies as the final language emerged within each house of Congress. After final wordings were decided upon and the houses agreed, President Washington sent handwritten parchment copies of the proposed amendments to the thirteen original states for ratification action by their state legislatures.

All About Commas
Regarding commas, the first question on this topic would be, were all of these at least 14 handwritten copies of the proposed amendments exactly the same with respect to the number of commas in the Second Amendment's language? This question cannot be answered definitively unless all thirteen copies sent to the states survive, can be located, and can be compared to the copy retained by Congress. The particular copy saved in the National Archives has three commas. Ratification Period versions that were predecessors of this language consisted of two clauses developed from the two different forms of the Mason Triads found in the Revolutionary Era state declarations of rights. The Philadelphia Federal Gazette printing of the proposed amendments from November 28, 1789 exhibits the proposed Fourth Amendment (later to become the Second Amendment when ratified) with only one comma. [The Origin of the Second Amendment, p.716]

Ratification by the State Legislatures
Exactly what transpired within each state legislature in dealing with the proposed amendments is not known, but it is most likely that copies of the amendments were printed by the various legislative bodies so each member of the legislature would have a printed copy to refer to, just as members of Congress relied on their own printed copies within each house.

After ratification by these legislative bodies, many of the state legislatures prepared a copy of their ratified amendments to be returned to the Washington administration as notification of such ratification. Some apparently did not do so because those particular state legislatures adopted all of the proposed amendments and simply indicated they had taken that action. As for those states that returned copies of the amendments ratified, with respect to the Second Amendment, no two of these are exactly alike regarding the number of commas and the words with leading capital letters within them. One even substituted an ampersand symbol for the word "and" in the second clause of the Second Amendment. These facts illustrate what would be common knowledge to anyone who has read a large amount of Founding Era documents. Punctuation (and leading capitalization of nouns) had little or no interpretive meaning then compared to something written in more modern times. Commas were often used rather profusely then and capitalization of the leading letter in all nouns was not uncommon. In other words, these variations were not viewed at the time as affecting the meaning of the Second Amendment's language in any way.

Regarding commas found in the eight different versions of the Second Amendment returned as ratified from various state legislatures, there was at least one of each with zero, one, two, and three commas. [OSA pp.720, 726, 728, 730, 732] The original sources of the Second Amendment's clauses, the leading Mason Triad clauses in the original state declarations of rights, came in two versions - 'well regulated militia as natural defense' and 'right of the people to bear arms for defense'. [FVRBA pp.65, 72] This simple historical fact makes it evident that the Second Amendment has a fundamentally two clause structure. The fact that the Second Amendment was based upon these two different descriptions of a defensively effective armed civil population made the two clause structure obvious to the Founders no matter how many commas (or caps) a copyist might have added or deleted within its language.

Jefferson's Official Imprint
As a final observation on these interesting Second Amendment variations, Thomas Jefferson as Secretary of State in the Washington Administration prepared an official printing of the amendments. This is the version that he authenticated as being the amendments proposed by Congress, ratified by the state legislatures, and made part of the Constitution under the ratification procedure set forth in Article V. Jefferson's official imprint of the Second Amendment has one middle comma with only the leading word, "A", of the sentence capitalized. [FVRBA pp.221-222]

The argument from those who have insisted that the "original" copy of the Second Amendment from Congress containing three commas must be consulted to fully understand its intent is contradicted by these numerous official versions of the Second Amendment as ratified by the state legislatures as well as by Jefferson's printing. Clearly, Jefferson's official imprint, as the National Archives refers to it, is the official version of the ratified Second Amendment recognized and authenticated by the executive branch of the Federal government itself.

Commas Don't Count
The point here is that it is rather futile and potentially misleading to argue the intent of a sentence written at that time in history and based almost exclusively on how many commas it contained. Arguments about comma count within the "original" copy of the Second Amendment add no clarity to discussion of its intent and have often been used to divert attention away from the Second Amendment's actual Bill of Rights history and context. A full understanding of Second Amendment developmental history makes the meaning of its language very clear and helps avoid the pitfalls associated with deciding meaning based on the number of commas contained in the "original" version.

4 comments:

  1. THEY COULD HAVE ELMINATED ALL OF TODAY'S ARGUMENTS SIMPLY BY MAKING THE MIDDLE COMMA A SEMICOLON; THEREBY, CREATING TWO INDEPENDANT THOUGHTS AND CLAUSES.

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    1. Actually, the original two-clause versions of the Second Amendment proposed by the ratifying conventions lf Virginia, New York, North Carolina (all in 1788), and later Rhode Island, did have a simicolon between the clauses.

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  2. Hey,

    Great hair. I wish I had it.

    For my classes, I was wondering if you could provide original sources instead of your own works. I seem to only be connecting to your books when I click on your connections. I assume the originals are cited in your works, but we don't have access to them.

    Great work.

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  3. My works consist of a Ratification Era document collection (the original sources) and a history based on those sources and others from earlier periods of American history.

    The Origin of the Second Amendment - A Documentary History of the Bill of Rights in Commentaries on Liberty, Free Government, and an Armed Populace, 1787-1792, is the document collection, which was first published in 1991. Origin has been cited extensively by the U.S. Supreme Court (District of Columbia vs Heller, 2008), the Circuit Court of Appeals for the District of Columbia (Parker vs District of Columbia, 2007), and the Fifth Circuit Court of Appeals (U.S. vs Emerson, 2001). The Origin of the Second Amendment was cited in these decisions because it reprints the "original sources".

    My history, The Founders' View of the Right to Bear Arms - A Definitive History of the Second Amendment, is based directly on the sources collected in The Origin of the Second Amendment. Approximately 420 notes within The Founders' View are direct page number references to original sources reprinted in Origin. The other 225 notes are normal endnotes with citations to the sources listed at the end of the text.

    Thus, citations in my online writing are usually to the original sources reprinted in The Origin of the Second Amendment, or are citations to period sources that are identified in The Founders' View of the Right to Bear Arms.

    ReplyDelete