Summary: It’s the great oddity of the US that we order our society based on exegesis of an 18th century document, written in grammar no longer used with words whose meaning has often radically changed. Instead of justice or logic, our judges have become like the mandarins of Imperial China — parsing the meaning of a document that no longer lives in any other meaningful sense. In the 6th chapter of this series, we wade into the thickets to understand how this plays out over the corpse of the Constitution with respect to the second amendment.

Section I, article 8 (see analysis by the Congressional Research Service):

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

Second Amendment (see analysis by the Congressional Research Service):

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.

A quick history of the Second Amendment

From “Guns and Grammar: the Linguistics of the Second Amendment“, Dennis Baron (Prof Linguistics, U IL at Urbana-Champaign):

English common law had long acknowledged the importance of effective arms control, and the meaning of the Second Amendment seemed clear to the framers and their contemporaries: that the people have a right to possess arms when serving in the militia. Over the years, this “collective rights” interpretation of the Second Amendment was upheld in 3 Supreme Court decisions, in 1876, 1886, and most recently, in 1939 ( Bogus 2000 ).

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The meaning of the Second Amendment remained uncontroversial until 1960, when a law review article using sources like American Rifleman asserted an additional, individual, right to bear arms for the purposes of self-defense ( Hays 1960 ). Since that time, a growing bloc of constitutional scholars and historians has asserted that only the individual rights interpretation of the right to bear arms is correct, even calling this new reading the “standard model,” as if the original, collective rights interpretation hadn’t prevailed for more than a century ( Bogus 2000b ). And the majority of Americans now believe that the Second Amendment guarantees their right to tote a gun. …

History of Gun Control in England

Even the English Bill of Rights, presented by the House of Commons to the new monarchs William and Mary in 1689, the very statute that is often cited by gun lobbyists as guaranteeing everyone’s right to own weapons, limited such ownership to Protestants, provided they were of the right social class, and acknowledged the role of the law in further regulating weapons: “that the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law” ( English Bill 1689 , emphasis added; Blackstone, whose opinions are frequently considered by the justices of the U.S. Supreme Court, echoes this qualification of weapons ownership in his Commentaries). …

Despite the gun lobby’s insistence on a long common law tradition supporting the individual’s right to weapons, gun regulation has been a feature of English law since the 14th century, when a series of Game Laws expressly restricted weapons ownership to members of the gentry who met thresholds of income and land ownership – guns were for the wealthy, not the peasants or the lower middle class ( Schwoerer 2000 ).

How did this happen?

Opponents of gun control have argued that there are linguistic reasons for dismissing the first part of the Second Amendment as merely “prefatory” or “preambulatory,” even though 18th-century readers would never have seen it that way. In addition, they reinterpret the meanings of the phrase bear arms and the word militia in ways that support their cause but go against the sense those words had in the federal period, and continue to have today. In support of the District of Columbia’s appeal to reverse that lower court ruling, we presented linguistic evidence arguing,

Syntax of the Second Amendment

Reading the Second Amendment as a statement in which every word counts follows from the opinion articulated by Chief Justice John Marshall: “It cannot be presumed that any clause in the constitution is intended to be without effect” (Marbury v. Madison, 1803). But even without that landmark ruling, it would have been clear to 18th-century readers that the first part of the Second Amendment was bound to the second part in a cause-and effect relationship, that the right to bear arms was tied by the framers directly to the need for a well-regulated militia.

In his Appeals Court opinion, Judge Silberman pays particular attention to the punctuation of the Second Amendment: “The provision’s second comma divides the Amendment into two clauses; the first is prefatory, and the second operative” (Parker et al. v. District of Columbia 2007). While it is true that the second comma divides the sentence syntactically, it is certainly not the case that such punctuation is necessarily used to divide the unimportant from the significant parts of a sentence, either in the 18th century or today.

Because modern punctuation practice is well regulated, we as 21st-century readers may be tempted to ascribe more to the Second Amendment’s punctuation than is warranted. Punctuation was not an important part of 18th-century writing instruction. The most popular grammars in the framers’ day were written by Robert Lowth and Lindley Murray. Though both are concerned with correcting writing mistakes, and both give a number of rules for comma use, what Lowth tells us is not very encouraging to those who look to punctuation as an exact science: “The doctrine of punctuation must needs be very imperfect: few precise rules can be given, which will hold without exception in all cases; but much must be left to the judgment and taste of the writer” (Lowth 1762, 155).

In addition to signaling syntactic breaks, eighteenth-century punctuation allowed for commas to be inserted as needed for breathing. Here is an example of such a pause, from Article III, section 1 of the U.S. Constitution: “The judicial power of the United States, shall be vested in one Supreme Court.”

The comma in that sentence does not separate prefatory material from substance. Instead, it marks a pause for breath. But times have changed. If a student put that comma in a paper today, it would be marked wrong.

The Constitution has other punctuation practices we would also consider irregular. For example, in Art. I, sec. 10, the framers write the possessive it’s (modern practice would require its): “No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it’s inspection laws” (emphasis added).

Even 20th-century constitutional amendments show irregular comma use. The 18th Amendment contains commas, normally used today to set off nonrestrictive clauses, to mark instead what must be read as a restrictive relative clause: “The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age” (emphasis added). So does the even more recent 27th Amendment (one of the original 12 amendments, but not ratified until 1992): “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened” (emphasis added).

While it is popularly held that the presence or absence of a comma can have a critical impact on the interpretation of a contract or a law, these examples demonstrate that, even today, punctuation in such carefully-drafted documents as constitutions and their amendments does not always reinforce meaning.

But that’s not all. Apparently, some copies of the Second Amendment sent to some of the states for ratification had a different number of commas from the “official” version as printed by the federal government (Van Alstyne 2007). Even the text of the Second Amendment quoted in the Silberman decision contains only the first two commas, not the third. But that should not pose a problem, even for a strict constructionist. Punctuation only loosely correlated with meaning in the 18th century, and it would not be an exaggeration to claim that the Second Amendment would mean the same thing – not just when it was written but today as well – whether it had one, two, or three commas, or none at all.

Although Judge Silberman reads it otherwise, the Second Amendment’s second comma tells us that the subsequent clause, “the right of the people to keep and bear Arms, shall not be infringed,” is the logical result of what preceded that comma, “A well regulated Militia, being necessary to the security of a free State.” That is because absolute phrases like the one at the start of the Second Amendment are commonly set off by commas and signal a cause-and-effect logical relationship.

Judge Silberman doesn’t call the “prefatory” phrase an absolute, but his argument that prefatory material is not pertinent draws on the conclusion that Nelson Lund reaches in his own discussion of the Second Amendment’s “preambulatory” absolute (Lund 2007). Lund, whose expertise is law, not language, insists that an absolute is grammatically independent from a sentence’s main clause, and so can have no impact on the meaning of that sentence. Commenting during oral arguments, Justice Kennedy, who clearly preferred an individual rights interpretation of the Second Amendment, similarly disconnected the two halves of the amendment, though without dismissing the importance of a militia:

“[T]here is an interpretation of the Second Amendment . . . that conforms the two clauses and in effect delinks them. . . . The amendment says we reaffirm the right to have a militia, we’ve established it, but in addition, there is a right to bear arms” (Supreme Court 2008, 5-6)

But an examination of absolutes in English shows that they should not be delinked.

{long discussion of 18th century grammar follows, plus descriptions of the meaning of “to bear arms” and “militia”}