How do you interpret Scalia's analysis and breakdown of the operative clause written grammar of the late 1700's American English used at the time? Prefatory vs. operative clause (grammar + method)
“The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause.”
“The former does not limit the latter grammatically, but rather announces a purpose.”
Authorities cited in same passage (as printed):
“See
J. Tiffany,
A Treatise on Government and Constitutional Law § 585, p. 394 (1867);
Brief for Professors of Linguistics and English as Amici Curiae 3 …”
See: Heller,
554 U.S. at 577.
Prefatory clause’s (non-limiting) role
“But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.”
“See
F. Dwarris,
A General Treatise on Statutes 268–269 (P. Potter ed. 1871);
T. Sedgwick,
The Interpretation and Construction of Statutory and Constitutional Law 42–45 (2d ed. 1874).”
Heller,
554 U.S. at 578
Operative clause breakdown (the headings + “right of the people”)
A. Operative clause heading + first analytic move
“1. Operative Clause.”
See: Heller, 554 U.S. at 579.
“The first salient feature of the operative clause is that it codifies a ‘right of the people.’ ”
Pinpoint cite: Heller, 554 U.S. at 579.
B. “Right of the people” = individual right (not collective)
“All three of these instances unambiguously refer to individual rights, not ‘collective’ rights …”
See: Heller, 554 U.S. at 579.
“Nowhere else in the Constitution does a ‘right’ attributed to ‘the people’ refer to anything other than an individual right.”
See: Heller, 554 U.S. at 580.
Operative clause breakdown (keep arms / bear arms)
A. “Arms” and scope (setup immediately before “keep” and “bear”)
“the Second Amendment extends, prima facie, to all instruments that constitute bearable arms …”
See: Heller, 554 U.S. at 582.
Authorities cited in same sentence (as printed):
“e. g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) … e. g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) …” Heller, 554 U.S. at 582.
B. “Keep Arms”
“Thus, the most natural reading of ‘keep Arms’ in the Second Amendment is to ‘have weapons.’ ”
See: Heller, 554 U.S. at 582.
“ ‘Keep arms’ was simply a common way of referring to possessing arms, for militiamen and everyone else.”
See: Heller, 554 U.S. at 583
“Bear Arms”
“At the time of the founding, as now, to ‘bear’ meant to ‘carry.’ ”
See: Heller, 554 U.S. at 584.
“When used with ‘arms,’ however, the term has a meaning that refers to carrying for a particular purpose—confrontation.”
See: Heller, 554 U.S. at 584.
“We think that Justice Ginsburg accurately captured the natural meaning of ‘bear arms.’ ”
See: Heller, 554 U.S. at 584.
“it in no way connotes participation in a structured military organization.”
See: Heller, 554 U.S. at 584.
“In numerous instances, ‘bear arms’ was unambiguously used to refer to the carrying of weapons outside of an organized militia.”
See: Heller, 554 U.S. at 585.
