Commas, Clauses and Missing Butter at the Supreme Court

Excelling at grammar has not seemed to be among the skills required of a Supreme Court justice. Law clerks and the reporter of decisions take care of that, right?

But this term, grammar knowledge is looming large. As we've reported here and here, the meaning of the commas in the Second Amendment could be a major factor in deciding D.C. V. Heller, the critical case testing D.C.'s strict handgun ordinance.

Today, in a much lower-profile decision Ali v. Federal Bureau of Prisons, grammar also plays a role in interpreting the statute at issue. And if you parse it closely, it may even offer some hints about how the justices will handle the Second Amendment case as well.

Invoking the Federal Tort Claims Act, inmate Abdus-Shahid Ali sued the bureau for losing some of his personal belongings during a prison transfer. The government, supported by all lower courts and now the Supreme Court, said Ali's claim should be dismissed, because of an exception in the law that gives immunity from liability for "any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise or other property by any officer of customs or excise or any other law enforcement officer."

For an amazing 14 pages in the majority by Justice Clarence Thomas and 21 pages of dissents by Justices Anthony Kennedy and Stephen Breyer, justices debated whether, grammatically or by other rules of statutory construction, the final phrase "or any other law enforcement officer" can include prison officers, or relates only to those involved in customs or excise disputes. Thomas rules that the phrase is "disjunctive, with one specific and one general category," and therefore can be read to refer to "any" law enforcement officer, not just customs officers. Thomas is joined by Chief Justice John Roberts Jr. and Justices Antonin Scalia, Ruth Bader Ginsburg and Samuel Alito Jr.

Au contraire, say Kennedy and Breyer in dissent. Kennedy argues that the comma in the middle of the text at issue does not divorce the clause that follows from what went before (and therefore, the exemption only applies to customs officers.) That's an issue in the Second Amendment case as well, where the debate is whether the right to "keep and bear arms" is pertains only to a preceding phrase that refers to a "well-regulated militia."

So does that mean that based on his reasoning today, Kennedy (and Justices John Paul Stevens, David Souter and Breyer, who joined him) will support the view that the Second Amendment only protects a militia right rather than an individual right? Almost as if he anticipates that question, Kennedy cautions that the majority view is "not without grammatical support."

Footnote: Breyer's separate dissent focuses on the word "any" in the statute, and he offers an amusing illustration for his point that "any" is not a universal word, but has context. Breyer writes, "When I call out to my wife, 'There isn’t any butter,' I do not mean, 'There isn’t any butter in town.' The context makes clear to her that I am talking about the contents of our refrigerator." In the real world, of course, many spouses would give a third meaning to Breyer's proclamation: "The butter is staring me in the face, but because I am a man, I can't find it."

Comments

[James Macklin]

40 years ago I raised the question of how many commas were in the Second Amendment, since my "old" books all had ONE comma and a new USGPO booklet had three.
My Congressaman had the Congressional Reasearch Service investigate and the answer was it was adopted with one comma. For some reason, about 1968 the extra two commas seemed to have been addd.
I wonder if some scribe repaired the original copies of the documents since all the "old" text books I have seen have but one comma and later editions of the same books now have three.
Three commas allow reading, the militia shall not be infringed, while one comma reads the right of the people shall not be infringed.
Is it just an accident that the number of commas changed about the time of the 1968 Gun Control Act?

[Steve Morris]

Thomas Jefferson said it best on what future generations should use as a guide for questions regarding the founders' original intent:

"On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed"., letter to William Johnson, June 12, 1823, The Complete Jefferson, p322.

[Wendy weinbaum]

As a Jewess in the US, I must say America wasn't won with a registered gun! All REAL Americans must put our 2nd Amendment FIRST!!!

[sharinlite]

Let's see,(comma) the world is going to hell in a basket, (comma) and the SCOTUS are arguing COMMAS?! No wonder this country is already in its own hell!!

[MarkD]

"We hold these truths to be self-evident ... That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. -- That whenever any form of government becomes destructive of these ends, it is the Right of the People to abolish it..."

commas, indeed. The Federalist papers explain what they meant. It doesn't take a lawyer diagramming a sentence to puzzle out the nuance.

[AMR]

Note how many of the amendments are written in that manner. And since when did the Bill of Rights address states rights. Also the letters of Jefferson and others state the purpose of the second amendment especially after Shay’s Rebellion caused by the Massachusetts state government oppressing its farmers; to arm the citizenry against the tyranny of government.

Amendment One
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Amendment Two
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.
Amendment Three
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Amendment Four
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures , shall not be violated, and no Warrants shall issue , but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment Five
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment Six
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Amendment Seven
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Amendment Eight
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment Nine
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment Ten
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

[Ol' BC]

Oh, I think the comma will come into play in Heller just as the semantic analysis of "any" came into play in Ali. Hopefully, by then Kennedy will come to his senses. The country can't count on Justice Ginsburg to always do what is correct.

[Steve Skubinna]

Commas aside, and ignoring the relevance of militias to the Second Amendment, the "state's right only" reading requires that "the people" does not mean what it says, that "right" does not mean what it was, and that "keep and bear arms" does not mean what it says.

Some have argued that "bear arms" only has meaning in a military sense. Fair enough. How does one interpret the word "keep" then? The fact is, the Second Amendment is the shortest and least ambiguous one in the entire Bill of Rights, and the arguments over word definition and comma placement are all in bad faith, and intended to mask the real goal, which is a total ban on private ownership of firearms.

[JohnMc]

Excuse me, but did we miss the bigger picture here? "any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise or other property by any officer of customs or excise or any other law enforcement officer."

Does not anyone but me see this as a means of unrecorded gainful forfeiture on the part of an Agent of the State? "Oh I am sorry. I lost that evidence that was your Aunt's life savings in cash. But hey, don't come after me, I am exempted from prosecution." Funny that the same Agent is driving a new truck.

Comma's indeed.

[Xrlq]

Fixation on commas is the only theory I can think of for the "collective rights" interpretation of the Second Amendment that I don't find ungrammatical on its face. Commas don't normally appear between the subject and predicate of a sentence, but are typically used to surround appositives, e.g., no one would right "a lawyer, pisses me off," but one would indeed right "John, a lawyer, pisses me off." Under that reading, one could conclude that "a well-regulated militia" is "the right of the people to keep and bear arms," and therefore, that well-regulated militia (whatever the hell that means) "shall not be infringed."

[Peter]

How many classes do prospective lawyers take in law school to make simple English a foreign language?

[The Monster]

Not only does People refer to, uh, individual people (despite collectivists' efforts to construe the word in the singular, what with their talk of "peoples") but "rights" in the original constitution are all individual rights.

The only thing of a collective character called a "right" in the amendments is the "right to vote", which is in my opinion poorly worded, for there is no more "right to vote" than there is to serve on a jury. The right in those cases is the right to have one's actions judged by commoners on a jury, rather than an elite of "noblemen", and to have the laws under which those actions are judged enacted either directly by those common men via referendum/town meeting, or indirectly via having the lawmakers elected by those same commoners.

[David Hardy]

It's esp. irrelevant in Heller since there are extant versions of the 2nd Amendment with one, two, and three commas. There's the engrossed version, and then several copies sent back from the states when they ratified. Everything had to be hand copied, and each copyist punctuated as he chose.

[M-K]

Apples and oranges. I confidently predict that grammar will play little if any role in Heller. The placement of commas will play even less.

[Lawrence G. Keane]

Everywhere else in the Constitution where the word People is used it refers to individuals. So exactly what part of "the right of the People" is unclear to you?