> "Hmmm. I'm not sure I'd characterize that as being "clearly" stated.
Our
> series of questions properly address whether the meaning was intended
to
> be a general one about the weapon or a specific one about either the
> defendant and/or the particular action with which he was charged. In
my
> opinion, it is genuinely ambiguous."
I don't think it's ambiguous at all. Allow me to explain.
The sentence is of the form "[because of X], we [declare Y]."
It contains two parts:
1) a declaration ("we cannot say that the Second Amendment
guarantees the right to keep and bear [a 'shotgun having a barrel of
less than eighteen inches in length']."), and
2) a justification for the declaration ("In the absence of any
evidence tending to show that possession or use of a 'shotgun having a
barrel of less than eighteen inches in length' at this time has some
reasonable relationship to the preservation or efficiency of a well
regulated militia...").
If you look at the justification all by itself, it might be
ambiguous. The perceived ambiguity is this: Are they talking about
whether a particular instance of possession or use must have utility for
the militia, or are they talking about whether a particular type of
weapon must have utility for the militia?
This perceived ambiguity is cleared up completely when you look at
what the declaration is that is being justified ("we cannot say that the
Second Amendment guarantees the right to keep and bear such an
instrument").
Evidence about the militia utility of Jack Miller's actions and
motives cannot be used to justify a blanket statement about whether "the
Second Amendment guarantees the right to keep and bear [a 'shotgun
having a barrel of less than eighteen inches in length']."
Only evidence about the militia utility of a "shotgun having a
barrel of less than eighteen inches in length" would be relevant in
justifying a declaration that "we cannot say that the Second Amendment
guarantees the right to keep and bear such an instrument."
To go into just a little more depth, there are three hypothetical
modifications we can make to the sentence to test and see if the
justification really does make the rest of the sentence ambiguous.
1) We can remove the justification, and see if the sentence makes
sense with the declaration standing on it's own, and see what the
paragraph would mean.
2) We can change the justification to remove its ambiguity in favor
of the "possession or use" interpretation, and see if the sentence makes
sense with the modified justification.
3) We can change the justification to remove its ambiguity in favor
of the "type of weapon" interpretation, and see if the sentence makes
sense with the modified justification.
1) The first sentence could stand on it's own without the
justification. The paragraph would make perfect sense if it said the
following.
"[We] cannot say that the Second Amendment guarantees the right to
keep and bear [a 'shotgun having a barrel of less than eighteen inches
in length']. Certainly it is not within judicial notice that this weapon
is any part of the ordinary military equipment or that its use could
contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.)
154, 158."
The sentence and paragraph make perfect sense and they add up to
mean that what they are asking for is evidence about the militia utility
of a particular type of weapon.
2) The first sentence, in its entirety, doesn't make sense with a
"possession or use" centric justification.
"In the absence of any evidence tending to show that [Miller's]
possession or use of [a short-barreled shotgun under these
circumstances], we cannot say that the Second Amendment guarantees the
right to keep and bear such an instrument."
You can't make a blanket statement about the Second Amendment not
guaranteeing the right to keep and bear a particular type of weapon and
justify it because the defendant's actions and motives in this
particular case don't meet certain criteria -- it would be a
non-sequitur.
3) The first sentence, in its entirety, does make sense with a "type
of weapon" centric justification.
"In the absence of any evidence tending to show that [a
short-barreled shotgun has militia utility], we cannot say that the
Second Amendment guarantees the right to keep and bear such an
instrument."
You can indeed make a blanket statement about the Second Amendment
not guaranteeing the right to keep and bear a particular type of weapon
and justify it because the that particular type of weapon has no militia
utility.
"Ambiguous" means that it can be parsed either way and can make
sense either way, so the first sentence of that paragraph is not
ambiguous, since it creates a non-sequitur if you parse the
justification as being about needing evidence that a particular instance
of possession or use (i.e., Miller's actions in this case) has utility
for the militia.
> "We don't know whether the defendant's use of possession of a short-
> barreled shotgun has some reasonable relationship to the preservation
or
> efficiency of a well-regulated militia. In part, this is because we
don't
> know whether this kind of weapon could be useful in a militia
setting."
The first sentence cannot be read as "We don't know whether the
defendant's use of possession of a short-barreled shotgun has some
reasonable relationship to the preservation or efficiency of a
well-regulated militia," since the declaration that it actually does
make is "we cannot say that the Second Amendment guarantees the right to
keep and bear such an instrument."
> Do you think that roughly that construction is impossible? (I'm
> considering here only this paragraph itself--not other aids to
> construction, such as its placement within the opinion, what other
cases
> are cited, etc. Just the text, ma'am.)
I do think that construction is impossible, if you'll stipulate that
the decision must be interpreted in a way that avoids non-sequiturs,
when such an interpretation is available, as it is in this case.
If they had written it like this, then your construction would be
possible.
"[We are hampered by] the absence of any evidence tending to show
that possession or use of a 'shotgun having a barrel of less than
eighteen inches in length' at this time has some reasonable relationship
to the preservation or efficiency of a well regulated militia. We cannot
say that the Second Amendment guarantees the right to keep and bear such
an instrument. Certainly it is not within judicial notice that this
weapon is any part of the ordinary military equipment or that its use
could contribute to the common defense. Aymette v. State, 2 Humphreys
(Tenn.) 154, 158."
The first sentence of the above is ambiguous in a way that the first
sentence that they actually did write is not.
