The added comma in the 2nd amendment:

What is it with 18th century punctuation and grammar?

Punctuation and spelling were a little looser then, and more importantly, some words in the 18th century do NOT mean what we think they mean today. People who posit that any historical document (whether something as well known as the Constitution to a simple piece of correspondence) is absolutely transparent to the modern reader needs to check their ego at the door. During my career as a historian I have made numerous errors of interpretation — and I am sure I am not done making them — because I misconstrued the use of a phrase or was unaware of how a phrase at a particular time was loaded with specific political, religious, or social meaning. Consider the history of words like terrific orenthusiast, or how certain terms like “gold” and “silver” came to take on special political meanings in the 19th century the same way that “life” and “choice” are — pardon the pun — pregnant with meaning today.

The truth is there may not have been universal agreement on the punctuation (or even the actual meaning) of all of the Constitution, much less its later amendments. Consider how both the Federalists and Antifederalists made counter charges as to what the Constitution would actually mean for a new America. Even the Federalist papers themselves are an interesting case in point — these documents, which have been cited over three hundred time sin court cases to explain what the constitution “actually meant,” were at their heart propaganda pieces to sell the Constitution on ratification. This does not mean that the Federalist papers are flim-flam, but some caution must be used: Sometimes the Federalist paper argue a very populist notion of the rights of the people (and mind you, this is before a bill of rights is on the table, at first), even though the top three types of positions in the new government (President, Senators, and Supreme Court Justices) would not be directly elected by the people.

A Hamiltonian view of what the Constitution meant, what it SHOULD have contained, and what it allowed is vastly different form what others such as Jefferson interpreted, and indeed formed a crux of the political discussion of the early republic.

So — and this is a roundabout way of getting back to the grammar discussion — yes, there is more than one way to legitimately parse the Second Amendment. But the best answer for what does it mean to have a “militia” or what kinds of rights does the second amendment refer to in reference to “arms”, grammar is probably not our most utilitarian friend. I discussed in the most recent second amendment thread the problem with the definition of militia. The majority opinion written by the conservative wing of the modern court in Heller, relied upon a definition of militia that chooses to both very broadly accept certain historical evidence (who are the people who make up the militia) but very narrowly construe the historical existence of the militia as being under control of the state governments. (One historical counterargument to Heller’s interpretation is that the militia as defined in Section I does indeed already exist, but were well-regulated meaning STATE CONTROLLED by the governor, which had been the case during the entire colonial period.)

The point is that grammar alone does not get us to “what does the second amendment really mean?” Heller is simply the most modern example of the court looking at historical and legal evidence and choosing to accept some types of evidence and discard others, which ultimately all rational people have to do when weighing teh evidence of what “the founders” meant. the problem is there is no one universal founder who agreed upon all things or set a specific set of definitions.

One last side note on historical grammar and punctuation and amendments: This problem with Amendments having various punctuation (or spellings) is not confined to this time period. There is a small bevvy of lunatic right-wing antitax zealots who have argued that the 16th Amendment was never properly ratified. Their argument boils down to that when the states sent back their ratification notices, some states had different capitalization, or a punctuation mark, or in one case a word that was plural was written in the singular, and that therefore they never really “ratified” the amendment. To no one’s surprise, these arguments have been dismissed by the courts, and now with some prejudice, as the claims have been labeled not only false but fraudulent by courts.