Debate Magazine

More Rules of Statutory Construction

Posted on the 30 August 2011 by Mikeb302000
Under most of the canons of Statutory Interpretation, the class of the people is limited by the term militia. For example:

Construction of text as a whole
The first linguistic canon is that an Act or other legislative instrument is to be read as a whole, so that an enactment within it is not treated as standing alone but is interpreted in its verbal context.

Ejusdem generis ("of the same kinds, class, or nature")
When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where "cars, motor bikes, motor powered vehicles" are mentioned, the word "vehicles" would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).

The Latin words ejusdem generis (of the same kind or nature), have been attached to a canon of construction whereby wide words associated in the text with more limited words are taken to be restricted by implication to matters of the same limited character.

The principle may apply whatever the form of the association, but the most usual form is a list or string of genus-describing terms followed by wider residuary or sweeping-up words. The canon arises from the linguistic implication by which words having literally a wide meaning (when taken in isolation) are treated as reduced in scope by the verbal context. It is an instance of ellipsis, or reliance on implication. As Rupert Cross put it, following Lord Diplock: 'the draftsman must be taken to have inserted the general words in case something which ought to have been included among the specifically enumerated items had been omitted . . .' (Cross 1987, 133). Or, as Odgers says, it is assumed 'that the general words were only intended to guard against some accidental omission in the objects of the kind mentioned and were not intended to extend to objects of a wholly different kind' (Odgers 1987, 184). It follows that the principle is presumed to apply unless there is some contrary indication.

In pari materia ("upon the same matter or subject")
When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter. That is the Second Amendment must be interpreted in light of the US Constitution's provisions relating to the militia (i.e., US Constitution Article I, Section 8 Clauses 15 & 16).

Noscitur a sociis ("a word is known by the company it keeps")
When a word is ambiguous, its meaning may be determined by reference to the rest of the statute. That is the Second Amendment must be interpreted as a whole and in light of the US Constitution's provisions relating to the militia (i.e., US Constitution Article I, Section 8 Clauses 15 & 16).

In the case of the Second Amendment, the word people reflects back to the Militia. The use of the term people does not expand the stated purpose of the Second Amendment, that is:
A well regulated militia being necessary to the security of a free State
The only way that the word "people" can be interpreted as the subject for the Second Amendment is to say that the first half is not important. If that is the case, why have the first half?

If the first half is irrelevant that takes you into another realm:

Cessante ratione, cessat et ipsa lex.(The reason of the law ceasing, the law itself also ceases)
Which means that if the "cause/reason" for the Second Amendment was the "well-regulated militia", then it could be argued that when that reason ceased, the law ought likewise to cease with it. Thus, those who say that the militia portion is unimportant have made it clear that the reason is no longer valid, therefore, the Second Amendment is without effect and is now void.

I am beginning to see Heller-McDonald as the opening blow to the uncomfortable reality that the Second Amendment is a dead letter in modern society.

See also:
Bennion on Statutory Law--Statutory interpretation

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