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 Two Parts And The Continuous Validity Requirement
Let's start with the usual way of separating the Amendment into two parts around the second comma. There we see that the part before the second comma has its own independent existence from the part after the second comma, unlike if, for example, it were part of a "because" statement. Therefore there is no question that its validity is required for each execution of the part after the second comma. But since the execution related to the latter requires just abstaining from doing somethings, it may be seen as just one execution and therefore requires the part before the second comma to be valid just once.
The comma before "shall not be infringed" (the last/third comma) provides the solution for the issue above. It divides the result that would occur if the condition before the second comma is true, from a one stage result to a two stage result. The first of those two stages asks if the right of the people to keep and bear Arms exists, while the second stage applies the condition that that right should not be infringed.
Or, we could say that the third comma takes away the part between itself and the second comma from being part of the execution that would occur if the condition before the second comma is true. It instead separates that part as belonging to neither the condition nor the result, but just something on which or related to which the execution occurs if the condition before the second comma is true.
Regardless of which view is prefered, the condition before the second comma must continue to be true in order to make the part between the second and third commas continues to have the condition that it should not be infringed applied on it.
Capitalization of Common Nouns
We know that common nouns that come attached to proper nouns should also be capitalized (For example Everest Mountain, not Everest mountain). Therefore the effect of capitalizing common nouns like the words "state" or "militia", is that it makes them refer to all proper nouns targets of that type. Since any instance of a common noun can be called by a proper noun, capitalizing common nouns makes them refer to their instances in proper noun target forms.
The definition of a proper noun states that it refers to a "single" thing. Not only arguing for restricting this singularity carries the burden of proof here, but this general singularity is also, by far, the reasonably applicable one. Otherwise, we run into problems in identifying the class of things to which a proper noun target belongs and how much that can differ from one perception to another.
This general singularity implies that the components comprising a proper noun target do not have existences as individual things.
Even if the word "State" is taken to refer only to states in this union, that does not take away the validity of applying the conclusion above on this word. It is not the capitalization of that word that may make it limited in its reference to only the States in this union but the environment where that reference is used. If for example the manager of a restaurant or cafe or theater instructs his employees that "No Chair shall be left unstable", it would be understood that that instruction is about the Chairs in that place. However it would be also understood that that instruction also prevents bringing unstable Chairs from the outside to that place and keeping them in that condition.
The effect of capitalizing any noun on that noun is the same wherever that noun is mentioned in the constitution including its amendments. Not only that understanding should fit all capitalizations in the constitution but it is also very probable that without it there would be big troubles in numerous parts of the constitution and this could be a severe understatement. Let us take a tiny sample of that in just the word "House" in Section 5. How would that section work if the capitalization of that word does not make it taken as one single thing? If House is not taken as a single thing and therefore each of its members has its own individual existence, then for it to be "the Judge of the Elections, Returns and Qualifications of its own Members" or "determine the Rules of its Proceedings" would require each member, by itself, to have those qualities. If so then nothing will be done without 100 percent agreement on those things. It is the singularity provided through the capitalization of the word "house" what makes the collective view here the only path.
Now, let's see how the word "State" itself was applied in the constitution at what appears to be the most suitable part for this purpose, Article 1 Section 10.
Let's start with "No State shall enter into any Treaty, Alliance, or Confederation" and "No State shall, without the Consent of Congress,... enter into any Agreement or Compact with another State.."
Without the general singularity understanding, those parts would also apply to the people. In other words, it would be for example unconstitutional for a person who is a factory owner in one State to be in an agreement with a supplier person in another State, for raw materials it needs. That is because their States would also be considered to have entered into that Agreement. Because it is good enough for a thing with components having their own individual existences to be into another thing if only one of its components is completely inside that other thing. For example, people may say that an army entered into a city if for example some of its soldiers enter into the city (Yes, more than one soldier may be required in this example in order not to see the action being done at mere personal capacity but that is not an issue for our case here). People may also say that an army entered into two different places at the same time and that cannot happen if all the army is required for both places.
On the other hand, with the general singularity understanding, one can see how the capitalization, not just from one end but from both sides (the State side and the Treaty, Alliance, Confederation, Agreement sides) prevents that from happening.
Now what if there were also this statement in the constitution: "No State shall plant a palm tree"? would that apply also on the people there or just on the State as a single thing? The answer is that it would not apply on the people of the State directly but it would lead to the same result through imposing that requirement on the State. On the other hand people inside a free State would not be under having the being free requirement imposed on them because of imposing it on the State, because a State can be free as one single thing in the world without its components being free inside.
Now let's continue with Article 1 Section 10 taking
"No State shall ... coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility"
Without the singularity view, wherever the forbidden produced thing is not by definition something only a government can do, those restrictions seem to flow down to the components of the State as things with their own individual existences and therefore apply also on the people of a State. On the other hand, with the singularity view, they are not. That is because all those restricted actions contain as part of them a reference to the identity of their doers. For example, Bills of Credit include the issuer of those Bills and Debts are assigned to a debtee. Therefore such restrictions will not be imposed on people when imposed on the State because those actions are not the same actions when done by the people of the State, unlike how planting a palm tree has no connection in its essence to the planter of the tree.
Related to the word "state" one can also get into its not capitalized occurrences in the Twelfth Amendment.
Continuity and The Word "being"
If I say Children are playing in this street then, technically, it can be assumed that children are still playing in the street, based on only the information provided in that statement. But with Children playing in this street, as in Children playing in this street, drivers should be careful The first part now conveys just a snapshot of the action without continuity in the part itself. Instead there will be only the continuity related to the assumption that things stay the same way until proven otherwise.
The same is true with "being necessary to the security of a free State" here. There is no continuity from the authority of the constitution beyond the duration of "being". After that period (or point in time), continuity comes from assuming that a thing stays at its status until we know otherwise from reality.
Dealing With The Affirmation of Facts
As pointed out above, the direct authority of the constitution related to the affirmation of facts in " being necessary to the security of a free State" no longer exist but instead what exist is the assumption of the continuity of that status until it is proven otherwise by reality and facts . However, the test for reality change still depends on what was meant by what was said. In dealing with the meaning of what was said it is very essential to avoid an unbalanced approach resulting from a partial view. There are multiple affirmations in that part of the Amendment, not just the usual take out fact, and we must walk the line there. This approach was applied in the discussion below
The Word "the" in "the security"
It is important to give that word sufficient attention. It should be taken the same way it would have if the constitution were to say "Do only what is necessary to the security of your free State". How much that word designates a special value and not there just to highlight security in general is the same in both situations.
The word "security" here is not capitalized and therefore it is not a single thing and therefore each of its parts has its own individual existence. That means for the necessity description to apply it must be necessary to every part of the security that can be separated from "the security" and it will remain a security. Therefore "the security" in the assumed statement above cannot be a subset of "the security" mentioned in the Amendment, and vice versa.
But what if the makers of the Amendment saw necessity status there for what we consider unnecessary or vice versa? The answer is that we are not free to take additional precaution by going deeper into that side on our own without facts calling for such action. We do not have extra margin safety on the necessity description here. That is because with the affirmation of necessity as a description also comes an implied affirmation for the existence of necessity as a concept that was used in measuring the fitting of necessity as a description and we are obligated to follow how the facts guide us between those two affirmations.
Connecting Through The First Comma
We start with a reference to a well regulated Militia. We do not know at this stage if that reference is to an actual or just the concept of a well regulated Militia.
Then we reach the first comma which separates that part from the "being necessary to the security of a free State" part following it. However, the latter still refers to that beginning part. But the comma separation is a text separation and not necessarily a meaning separation. In other words, with multiple potential meanings, as in this case, there is a copy of the text for each additional meaning and the comma is required to exist in only one of them. Therefore, one of those two potential meanings related to concept and actuality for the well regulated Militia at the beginning, may pass through that first comma. Since the concept of a well regulated Militia can exist without actual well regulated Militia but the other way around cannot be, the "being necessary to the security of a free State" part refers to the well regulated Militia mentioned at the beginning of the Amendment, only as a concept.
The capitalization of the word "militia" prevents the concept of a well regulated Militia, that comes as part of an actual well regulated Militia from being applicable to the "being necessary to the security of a free State" part, because it is there just as a component of the actual well regulated Militia and does not have its own individual existence. In other words, the "being necessary to the security of a free State" part not only refers to necessity of the concept of a well regulated Militia but also for that necessity to be through the level of a mere concept. The Amendment made judging the validity of the "being necessary to the security of a free State" part neither dependent on one actual free State nor on the general condition as indicated by the application on all actual free States. Instead it made the validity of that part dependent on necessity stemming from the concept of a well regulated Militia in its interaction with the general condition at the level in which the concept was made, and therefore actuality of the States does not matter. One can take the position that no State can be totally free and therefore no free State exist, and it would not affect the application of that part of the Amendment.
Development History
The first draft of the Amendment used the word "country". Then, although the word "state" never used in a not capitalized form anywhere in the constitution before, here it remained not capitalized throughout all earlier versions. Then in the final version it came capitalized along with the word "militia" which was also kept not capitalized throughout all earlier versions. We also have all those military service exclusion for the religiously scrupulous.
One can see through that how the external security for the whole union as one single thing in the world was the main focus or at least had strong roots from the start and continued to be throughout the development of the Amendment with the final version representing just a different way of implementing the same purpose. The word "country" seems to be the closest to mind when one thinks about freedom relative to the external world. But a country does not have a government, without statehood. This absence of government makes freedom as a single entity in the world meaningless because of the lack of representation. Therefore replacing that word with the word "state" is necessary. Then we see how all that use of the word "state" not in capitalized form suggests intentional avoidance for capitalizing that word. That in turn suggests trying to avoid suggesting that the States in the union as individual units are the aim. Then we have that clear connection of the issue of external security with military service.
Related to the conditional nature of the part before the second comma, we see how the first version was flipped from a semicolon separated execution and explanation form to the form of an execution dependant on a seperate reason preceding it, then remained in that form to the final version.
We also see all the insistence on using the word "being" through out all versions. This support a technical intention behind the use of this word not an artistic one.
Also all the references to "the best security" supports that the word "the" in "the security" in the final version is designating a special value of security.
Bringing The Pieces Together
The word "the" in "the security" is about answering this question in relation to the Amendment:
How should be that thing for which a well regulated Militia was seen as necessary?
It is not about answering this question in relation to the Amendment:
What is that thing for which a well regulated Militia was seen as necessary?
So while keeping this role for the word "the" in the use of "the security" here in mind, one may ask: Is the concept of a well regulated Militia still calls for a well regulated Militia as necessary to the security of a free State?
Capitalizing the word "state" in the Amendment makes it one single thing and therefore its components do not exist as individual things and therefore the words "free" and "security" cannot apply on them. Therefore the question above becomes about freedom and security only in relation to the outside world not among the components of a free State.
Clearly the concept or part of the concept of a Militia is that it is the power of a State through some of its people as individual fighters. This directly relates to how combining the fighting power of individual fighters was the main way to bring a better power, to the level that no State with no outside entity on which that State can count for defending itself, because of being free, can risk not to have its own form of it. But that way of building power is now extremely ineffective and replaceable with much better things, because of the wide spread of modern war machinery.
Also the "well regulated Militia" cannot be considered here for the role of supplying the Military of a State with people because a Militia does not have to be well regulated for that. The "well regulated" description of the Militia must be necessary to the security of a free State in order for a well regulated Militia to be necessary to the security of a free State. Because whether in a manifested form or not, the well regulated description must exist somewhere. If it does not exist outside what a Militia is, then it must exist inside what a Militia is and that cannot happen because it would mean that that Militia is not one single thing as indicated by the capitalization of the word.
Like the case above, I cannot think of any other secondary role for the Militia here that needs it to be well regulated.
Related to the definition of the word "Militia", it seems like there is a big support in history that a Militia is comprised of only people. For example the earlier versions of this Amendment described it as "composed of the body of the people". Or the quote of George Mason saying "who are the militia..They consist now of the whole people". However, if some argue that was just the implementation of that time, then they carry the burden of proof for that. Moreover, what prevented something written with consideration for the future like a constitution from having a more open view beyond having the right to keep and bear, not even arms but Arms to individuals as did the Amendment we are discussing? In addition, there is this interesting thing from the Samuel Johnson Dictionary. It defines "MILITIA" as "The trainbands; the standing force of a nation" and defines "TRAINBANDS" as " The militia; the part of a community trained to martial exercise". First, we see how that suggest strong support to that a Militia is composed of only people. Second we see how in both definitions the arrangement of putting the form first does not fit well with the form being just an implementation.
No comments:
Post a Comment