An excellent analysis of the 2nd Amendment from TangoFox over at Free Republic.
Down to the Last Second (Amendment)
Participants in the various debates on firearms, crime, and constitutional law may have noticed that the Second Amendment is often quoted differently by those involved. The two main variations differ in punctuation- specifically, in the number of commas used to separate those twenty-seven words.
But which is the correct one? The answer to this question must be found in official records from the early days of the republic. Therefore, a look into the progression of this declaratory and restrictive clause from its inception to its final form is in order.
Before beginning, one must note that common nouns, like “state” and “people,” were often capitalized in official and unofficial documents of the era. Also, the letter “f” was at times used in place of the letter “s” in both print and manuscript. For example, “Congress” is sometimes spelled as “Congrefs,” as is the case in the parchment copy of the Bill of Rights displayed by the National Archives. The quotations listed here are accurate. With the exception of the omission of quotations marks, versions of what is now known as the Second Amendment in boldface appear with the exact spelling, capitalization, and punctuation as the cited originals.
A Chronological History
During ratification debates on the Constitution in the state conventions, several states proposed amendments to that charter. Anti-Federalist opposition to ratification was particularly strong in the key states of New York and Virginia, and one of their main grievances was that the Constitution lacked a declaration of rights. During the ratification process, Federalist James Madison became a champion of such a declaration, and so it fell to him, as a member of the 1st Congress, to write one. On June 8, 1789, Madison introduced his declaration of rights on the floor of the House. One of its articles read:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.1
On July 21, John Vining of Delaware was appointed to chair a select committee of eleven to review, and make a report on, the subject of amendments to the Constitution. Each committeeman represented one of the eleven states (Rhode Island and North Carolina had not ratified the Constitution at that time), with James Madison representing Virginia.
Unfortunately, no record of the committee’s proceedings is known to exist. Seven days later, Vining duly issued the report, one of the amendments reading:
A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms. 2
In debates on the House floor, some congressmen, notably Elbridge Gerry of Massachusetts and Thomas Scott of Pennsylvania, objected to the conscientious objector clause in the fifth article. They expressed concerns that a future Congress might declare the people religiously scrupulous in a bid to disarm them, and that such persons could not be called up for military duty. However, motions to strike the clause were not carried. On August 21, the House enumerated the Amendments as modified, with the fifth article listed as follows:
5. A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person. 3
Finally, on August 24, the House of Representatives passed its proposals for amendments to the Constitution and sent them to the Senate for their consideration. The next day, the Senate entered the document into their official journal. The Senate Journal shows Article the Fifth as:
Art. V. A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person. 4
On September 4, the Senate debated the amendments proposed by the House, and the conscientious objector clause was quickly stricken. Sadly, these debates were held in secret, so records of them do not exist. The Senators agreed to accept Article the Fifth in this form:
…a well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall net be infringed. 5
In further debates on September 9, the Senate agreed to strike the words, “the best,” and replace them with, “necessary to the.” Since the third and fourth articles had been combined, the Senators also agreed to rename the amendment as Article the Fourth. The Senate Journal that day carried the article without the word, “best,” but also without the replacements, “necessary to.” Note that the extraneous commas have been omitted:
A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed. 6
With two-thirds of the Senate concurring on the proposed amendments, they were sent back to the House for the Representatives’ perusal. On September 21, the House notified the Senate that it agreed to some of their amendments, but not all of them. However, they agreed to Article the Fourth in its entirety:
Resolved, That this House doth agree to the second, fourth, eighth, twelfth, thirteenth, sixteenth, eighteenth, nineteenth, twenty-fifth, and twenty-sixth amendments… 7
By September 25, the Congress had resolved all differences pertaining to the proposed amendments to the Constitution. On that day, a Clerk of the House, William Lambert, put what is now known as the Bill of Rights to parchment. Three days later, it was signed by the Speaker of the House, Frederick Augustus Muhlenberg, and the President of the Senate, Vice President John Adams. This parchment copy is held by the National Archives and Records Administration, and shows the following version of the fourth article:
Article the Fourth. 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. 8
The above version is used almost exclusively today, but aside from the parchment copy, the author was unable to find any other official documents from that era which carry the amendment with the extra commas. In fact, in the appendix of the Senate Journal, Article the Fourth is entered as reading:
Art. IV. 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.9
Also, the Annals of Congress, formally called The Debates and Proceedings in the Congress of the United States, show the proposed amendment as follows:
Article the Fourth. 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.10
Further, once two-thirds of both chambers of the Congress agreed to the proposed amendments, the House passed a resolve to request that the President send copies of them to the governors of the eleven states in the Union, and to those of Rhode Island and North Carolina. The Senate concurred on September 26, as recorded in their journal:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the President of the United States be requested to transmit to the executives of the United States, which have ratified the constitution copies of the amendments proposed by Congress, to be added thereto; and like copies to the executives of the states of Rhode Island and North Carolina.11
Fortunately, an original copy of the amendments proposed by the Congress, and sent to the State of Rhode Island and the Providence Plantations, does survive. Certified as a true copy by Assembly Secretary Henry Ward, it reads in part:
Article the Fourth, –A well regulated Militia being neceffary to the Security of a free State, the Right of the People to keep and bear Arms fhall not be infringed. 12
And so, the proposed amendments to the Constitution were sent to the states for ratification. When notifying the President that their legislatures or conventions had ratified some or all of the proposed amendments, some states attached certified copies of them. New York, Maryland, South Carolina, and Rhode Island notified the general government that they had ratified the fourth amendment in this form:
Article the Fourth. 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. 13
Articles the First and Second were not ratified by the required three-fourths of the states, but by December 15, 1791, the last ten articles were. These, of course, are now known as the Bill of Rights. Renumbering the amendments was required since the first two had not been ratified. The 1796 revision of The Federalist on the New Constitution reflects the change as such:
ARTICLE THE SECOND
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.14
This version is carried throughout the 19th Century, in such legal treatises as Joseph Story’s Commentaries on the Constitution of the United States (1833) and Thomas Cooley’s Principles of Constitutional Law (1898). It is also transcribed in this manner in the 1845 Statutes at Large, although the term “state” is capitalized in that text. The latter are the official source for acts of Congress.15,16, 17
This version still appears today, as is the case with the annotated version of the Constitution they sponsored on the Government Printing Office web site (1992, supplemented in 1996 and 1998). The Second Amendment is shown as reading:
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. 18
(The Senate-sponsored GPO site does carry a “literal print” of the amendments to the Constitution showing the Second Amendment with the additional commas. The punctuation and capitalization of the amendments transcribed there are the same as those found on the parchment copy displayed in the Rotunda of the National Archives.)19
Thus, the correct rendition of the Second Amendment carries but a single comma, after the word “state.” It was in this form that those twenty-seven words were written, agreed upon, passed, and ratified.
Why the Commas are Important
It is important to use the proper Second Amendment because it is clearly and flawlessly written in its original form. Also, the function of the words, “a well regulated militia being necessary to the security of a free state,” are readily discerned when the proper punctuation is used. On the other hand, the gratuitous addition of commas serve only to render the sentence grammatically incorrect and unnecessarily ambiguous. These points will be demonstrated later in the Second Amendment Series.
1. Amendments Offered in Congress by James Madison, June 8, 1789. The Constitution Society. http://www.constitution.org/bor/amd_jmad.htm, 16 January 2000.
2. Amendments Reported by the Select Committee. July 28, 1789. The Constitution Society. http://www.constitution.org/bor/amd_scom.htm, 16 January 2000.
3. U.S. House Journal. 1st Cong., 1st sess., 21 August 1789.
4. U.S. Senate Journal. 1st Cong., 1st sess., 25 August 1789.
5. U.S. Senate Journal, 1st Cong., 1st sess., 4 September 1789.
6. U.S. Senate Journal, 1st Cong., 1st sess., 9 September 1789.
7. U.S. House Journal. 1st Cong., 1st sess., 21 September 1789.
8. Bill of Rights. National Archives and Records Administration. http://www.nara.gov/exhall/charters/billrights/bill.jpg, 22 January 2000.
9. U.S. Senate Journal. 1st Cong., 1st sess., Appendix.
10. Annals of Congress, 1st Cong., 1st sess., Appendix
11. U.S. Senate Journal. 1st Cong. 1st sess., 26 September 1789.
12. A True Bill. The Constitution for the United States, Its Sources and Its Applications. http://www.nidlink.com/~bobhard/billofrt.jpg, 27 January 2000.
13. U.S. House Journal, 1st Cong., 3rd sess., Appendix Note: Maryland and South Carolina capitalized the “m” in “Militia.”
14. The Federalist on the New Constitution, 1796. The Constitution for the United States, Its Sources and Its Applications. http://www.nidlink.com/~bobhard/f16b1234.jpg, 17
15. Commentaries on the Constitution of the United States. The Constitution Society. http://www.constitution.org/js/js_344.htm, 18 February 2000.
16. Quotes from Constitutional Commentators. Gun Cite. http://www.guncite.com/gc2ndcom.html, 2 February 2000.
17. Statutes at Large 1845, 21.
18. Second Amendment–Bearing Arms. The Constitution of the United States of America. http://www.access.gpo.gov/congress/senate/constitution/amdt2.html, 18 February 2000.
19. Text of the Amendments (Literal Print). The Constitution of the United States of America. http://www.access.gpo.gov/congress/senate/constitution/conamt.html, 18 February 2000.