On behalf of the Second Amendment Foundation, George Mason law professor Nelson Lund has written a meticulous textual analysis of the Second Amendment, in the Supreme Court handgun ban case, District of Columbia v. Heller.
In the tightly-written brief, Lund argues that every permutation of the militia-only interpretation of the Second Amendment leads to obviously absurd results. (Not only as a practical matter, but as a matter of textual interpretation.)
He urges that the language from United States v. Miller, suggesting that "'private citizens might have a right to possess weapons that are 'part of the ordinary military equipment or [whose] use could contribute to the common defense'" be treated as dicta. When Miller was decided, he observes, ordinary soldiers and ordinary citizens both owned bolt-action rifles; today, the Miller test would create a constitutional right to machine guns.
Lund explains the preamble of the Second Amendment as an "ablative absolute or nominative absolute. Such constructions are grammatically independent of the rest of the sentence, and do not qualify any word in the operative clause to which they are appended. The usual function of absolute constructions is to convey some information about the circumstances surrounding the statement in the main clause."
A telling example is provided by Article 3 of the Northwest Ordinance:[Side note: the inclusion of this quote in the briefing can be traced to independent scholar David Young having seen the quote above the entrance Angell Hall, at the University of Michigan. It is a perfect example of the importance of inscribing in stone the noblest statements of public virtue, so that those statements will be known to future generations, and will be used to encourage liberty and responsible self-government.]
Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.
This provision – ratified by the same Congress that drafted the Second Amendment – attests to a belief in the beneficent effects of schools and education. But it does not imply that "[r]eligion, morality, and knowledge" are their only purpose.
As for the rest of the brief, it merits the reader's careful study. No brief in this case is as lucid. As a former Supreme Court clerk, Lund writes with the precision that is typical of Solicitor General briefs. It is not uncommon for briefs (on whatever issue) to puff up themselves with bombast and extravagent language. The Lund brief is a superb example of how to write authoritatively but not pompously; for the latter mode betrays an underlying insecurity about the correctness of one's argument.
There are many excellent briefs on both sides of District of Columbia v. Heller. The readers of this weblog include lawyers of varying degrees of experience, and law students; some of them have an interest in Second Amemdment issues, while almost all of them aspire to improve their brief-writing. If you want to read a model Supreme Court brief, this is the brief to read.
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