Commas and the Second Amendment

The Claim

Under ordinary usage, the first and third commas in the Amendment are unnecessary. If these commas had not been inserted, it would be possible to understand the Well Regulated Militia Clause as simply explaining the rationale for the Bear Arms Clause (the Amendment would then read: "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."). But the commas are in fact in the text proposed by Congress and ratified by the states, and they prevent this reading. The first unusual comma– between "Militia" and "being"– forces the reader to search for a verb for which "Militia" is the subject. That verb does not appear until "shall not be infringed" near the end of the Amendment. The second unusual comma– between "Arms" and "shall"– sets off the verb phrase "shall not be infringed" from the preceding language; it suggests that the subject for this verb phrase is not simply "the right of the people to keep and bear Arms." The grammatical effect of these two unusual commas is to link "A well regulated Militia" to "shall not be infringed" to emphasize, in other words, that the goal of the Amendment is to protect the militia against federal interference. (Yassky brief at 12 n.4 for U.S. v. Emerson)

In other words the Yasky brief "suggests that the use of commas in the Second Amendment somehow links 'A well regulated Militia' to 'shall not be infringed,' as though the Constitution should be read to say: 'A well regulated Militia shall not be infringed.'" (Lund brief for U.S. v. Emerson)

Reality

The Yassky brief continues: "The Constitution was drafted with great care, and (unlike much legal writing from the Founding period) its use of punctuation generally conforms to modern conventions, suggesting that the commas in the Second Amendment are not haphazard but rather deserve scrupulous attention."

Evidence suggests otherwise. The Lund brief counters: "This desperate gambit ignores the Constitution's frequent use of commas that would be considered extraneous in modern usage (e.g., in the First and Third Amendments)."

Here is what three authoritative sources say about punctuation and comma usage during the 18th century:

"The punctuation that emerged in the eighteenth and nineteenth centuries was consistent in just two respects: it was prolific and often chaotic."
--- Alphabet to email: How written english evolved and where it's heading. Naomi S. Baron, Routledge, London and New York 2000. P. 185

"Excessive punctuation was common in the 18th century: at its worst it used commas with every subordinate clause and separable phrase."
--- 15 ed. V.29, The New Encyclopaedia Britannica 1997. P. 1051

"In the 18-19c, people tended to punctuate heavily, especially in their use of commas."
--- The Oxford Companion to the English Language. Oxford New York, Oxford University Press 1992. Tom McCarthur ed. P. 824

In the 19th Century the rule, borrowed from English law, was that "[p]unctuation is no part of the statute" (Hammock v. Farmers Loan & Trust Co, 105 U.S. 77 [1881]) (citing references from the late 18th and early 19th century).

Not that it matters, but...

The Second Amendment Foundation maintains, "The Final (ratified) version had only one comma according to the Library of Congress and Government Printing Office."

This image, from the Library of Congress, also shows the ratified version with one comma.

And this page from the National Archives contains a three comma version.

This Web-page claims:

Every single certified copy of the Second Amendment contained only one comma, after the word "state." The parchment copy (obviously where the three comma version comes from) is not a certified copy, and all twelve of the proposed amendments found therein contain different capitalization and punctuation than those of certified copies.
The certified Second Amendment was used exclusively in every official document I could find until 1876. Also, the Statutes at Large of 1819 and 1845, which are certified as being correct down to the last comma and are the official source of the acts of Congress, show the amendment in this form. (Somewhere along the line, the Statutes must have been changed, and I'm trying to find out exactly when.) (http://www.freerepublic.com/forum/a39388c210c1b.htm)

This law journal article states:

The second amendment's capitalization and punctuation is not uniformly reported; another version has four commas, after "militia," "state," and "arms." Since documents were at that time copied by hand, variations in punctuation and capitalization are common, and the copy retained by the first Congress, the copies transmitted by it to the state legislatures, and the ratifications returned by them show wide variations in such details. Letter from Marlene McGuirl, Chief, British-American Law Division, Library of Congress (Oct. 29, 1976).(http://www.guncite.com/journals/hardhist.html#fn1)

And finally:

There are two versions of the Amendment, one with one comma, and one with 2 or 3. No way to determine which is more official, since documents were hand-copied then, the scribes sometimes punctuated as they pleased, and most of the real originals were lost when the Capitol was burned during the War of 1812. (http://armsandthelaw.com/archives/2005/04/a_complete_unde.php)

In other words, regardless of which version is "official," it appears the states ratified different versions of the Bill of Rights. However, these slight variations in puncuation and capitalization should not have any bearing on the document's interpretation.