The Right to Keep and Bear Commas

Three of my many favorite things—Revolutionary history, politics, and punctuation—come together in a well-written editorial in today’s New York Times. Legalese expert Adam Freedman describes the significance that competing judges and legal experts have been finding in the commas of the Second Amendment to the U.S. Constitution:

Refreshing though it is to see punctuation at the center of a national debate, there could scarcely be a worse place to search for the framers’ original intent than their use of commas. In the 18th century, punctuation marks were as common as medicinal leeches and just about as scientific. Commas and other marks evolved from a variety of symbols meant to denote pauses in speaking. For centuries, punctuation was as chaotic as individual speech patterns.

The situation was even worse in the law, where a long English tradition held that punctuation marks were not actually part of statutes (and, therefore, courts could not consider punctuation when interpreting them). Not surprisingly, lawmakers took a devil-may-care approach to punctuation. Often, the whole business of punctuation was left to the discretion of scriveners, who liked to show their chops by inserting as many varied marks as possible.

Another problem with trying to find meaning in the Second Amendment’s commas is that nobody is certain how many commas it is supposed to have. The version that ended up in the National Archives has three, but that may be a fluke. Legal historians note that some states ratified a two-comma version. At least one recent law journal article refers to a four-comma version.

The comma question seems to be a stalking-horse for the larger argument over whether the first half of the amendment, referring to “a well-equipped militia,” is conditional, expository, or merely prefatory.

I think that argument is especially difficult because the few years in which the Constitution and Bill of Rights were composed—1787 to 1791—was unusual even in how eighteenth-century Americans viewed their militia and their regular or “standing” army. Having won the war for independence against Britain’s regulars and Hessian troops, the U.S. of A. reduced its army to under a thousand men, expecting regional militias to defend territories as needed. Some of the states proposed constitutional amendments that would have put severe restrictions on a regular military.

The Second Amendment and the rest of the Bill of Rights were debated at the state level starting in early 1791. On 15 December, ten of Congress’s original twelve proposed amendments were ratified and became part of the Constitution.

Less than six weeks before, the U.S. Army suffered its worse loss ever in proportional terms at the Battle of the Wabash. About 1,400 Miamis and Shawnees overwhelmed a force of about 600 full-time soldiers and 900 militiamen. The U.S. forces suffered 90% casualties (counting both dead and wounded), and the regular army’s numbers dipped to about 300 men. Americans quickly realized that if they wanted to expand west into land also claimed by Native American nations, they needed a much larger regular army than they had been envisioning. The system of relying mostly on “a well-equipped militia” was already proving problematic.