Grammar and History in the Second Amendment

How Did the Supreme Court Get Both of Them So Wrong?

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I’ve written elsewhere about the 1787 political context that rendered the Second Amendment vacuous at its birth, and I know it gets a bit queasy to think about the Constitution that way. Once you’ve taken a cold-eyed look at the mess that is the Second, all of the first ten amendments that we like to call the Bill of Rights can start to waver. As can the whole document.

But it can be liberating, too, to look at the Constitution as a result of, how should I put this, politics. And the Second really is unique among the amendments, unique in the Constitution in the ways I’ve already discussed. Looking at the Second in context doesn’t mean you have to start knocking down the whole Constitution as a set of bad political compromises.

I also know that many gun-control advocates will remain sure, no matter what I say, that if the amendment were only read properly, with the protected right located solely in the collective action of militia, as referred to in the opening, then gun control would prevail.

The Supreme Court of the United States also disagrees with me on this matter, as of 2008, anyway, in District of Columbia v. Heller, for reasons pretty much the opposite of those espoused by gun-control people. According to the Court, and contra me, the amendment is fully meaningful; read properly, the Court says, the protected right is clearly an individual one that while not absolute—no right is—is unlimited by any militia requirement.

What’s fascinating, in a horrible way, is what happens in the Heller opinion, as written by the late Justice Antonin Scalia, which is what so often happens in the upper reaches of constitutional law. The opinion relies not on abstruse legal reasoning, beyond my and most of our scope, but on authoritative pronouncements about founding-era American history and also, in this case, about English grammar. Those fields can get a bit abstruse too, but unlike the law, I have a decent grasp on both of them, which suggests to me that neither can be all that hard to understand, at least for our purposes here.

Scalia, however, evidently taking himself for a born authority in both fields—maybe because he wears a robe?—must not have bothered to study up, or have his clerks study up. In Heller he gets both the grammar and the history relevant to the Second Amendment unambiguously wrong.

I’m pretty sure more people like history than like grammar, but I’m sorry to say that today we have to take a quick look at grammar anyway, because fights over the Second Amendment keep coming down to what the thing merely says, what the words are supposed to just mean. Fights over other amendments don’t come down to that, and nobody knows what this one says—that’s my main point—but Scalia said he did, and so the Court now says it does, and that matters, a lot, to our current horrific gun-violence nightmare.

Much of the weak Heller rationale on meaning has to do with how well the two parts of that simple declarative sentence go together. Or don’t. Regarding the first part, the famous opening “A well-regulated militia, being necessary to the security of a free state,” Scalia calls it a purposive clause, grammatically. But it’s not.

It’s not a clause at all, grammatically. And this very basic error matters immensely to the validity of his rationale, as we’ll see.

(Scalia’s mis-identifying the opening as a clause is sometimes defended on the basis of legal jargon, which uses “clause” in ways grammarians don’t, but that’s irrelevant here: when introducing the concept, Scalia says “grammatically.” Also, the purposive clause exists in structural grammar, though not in the way he seems to think it does. His argument is avowedly about grammar, and he’s using “clause” as a term of art in that discipline, not in the law.)

The reason a grammatical parsing is so important, both to Scalia and to his opponents on the gun-rights issue, is that the whole fight over the most basic meaning of the amendment keeps coming down to whether that opening thingy, which Scalia mistakes for a clause, and mistakes for a purposive clause at that, places a limit on the main part of the sentence, “the right of the people to keep and bear arms shall not be infringed.” Both sides think that by clarifying that issue, they can determine the amendment’s meaning and convince others that it means what they want it to mean.

That is: Does the opening mean that the right protected by the founders can only be exercised in the context of service in a well-regulated militia? Or not?

And that question finally does come down to grammar and syntax. For believe it or not, in written language, meaning emerges only from grammar and syntax. (I don’t like revealing this trick of my trade, but there it is.) The only way we can ever think we know what the opening of the Second Amendment does or doesn’t do to the meaning of the main part of the sentence is to think we know what the opening part does to the main part grammatically, syntactically. And that requires understanding the sentence structure.

So if the opening is not a clause (and if it’s not a “thingy”), then what is it?

It’s a phrase.

Just as a quick refresher (!?), let us recall that the difference between phrases and clauses is one of the most important distinctions in prescriptive structural grammar. Scalia, when blithely opining authoritatively about grammar, totally blows the definitional fact that a clause is a group of words built around a verb and its subject. Some clauses can stand on their own as full sentences; others can’t. But “a well-regulated militia being necessary to the security of a free state,” despite its length, and despite the presence of the word “being,” doesn’t have a verb and subject. (The verb “to be” is used there as a participle, which, for those who care, like me, is a kind of adjective made out of a verb.)

This would be a clause: “Because a well-regulated militia is necessary to the security of a free state” (the clause would be built on “militia. . . is”), but the founders didn’t write that. Even if they had, the clause wouldn’t be a purposive clause. That term is reserved for very broad, general, oratorical remarks, like “lest we forget,” which refer to the overarching purpose of making any statement at all, not to a granular purpose as dire as the context for limiting or not limiting a right.

Anyway, they didn’t use any kind of clause to open the Second. They used a phrase—a group of words lacking a verb and its subject—and they used a weird, often annoying kind of phrase, a kind most writers would avoid, especially in this context, and which the founders themselves avoided almost everywhere else. What makes this kind of phrase weird is that it refuses to do what almost all other kinds of phrases in English do: modify—i.e., limit or describe—a specific word in the sentence.

In “the rooster on the left,” a prepositional phrase (beginning with the preposition “on”) is telling us which rooster; because it modifies a noun, it’s called an adjective phrase. “Some blowhard writing at excessive length about grammar” has two phrases: a participial phrase, introduced by the participle “writing,” telling us which blowhard, thus making it an adjective phrase; and a prepositional phrase telling us what he’s writing about, and that’s an adverb phrase, because it modifies, not actually a verb in this case, though that’s close, but an adjective: the participle “writing,” which is an adjective made from a verb, and one thing adverbs do is modify adjectives.

Now, another cool thing about participles—.

Wait! Sorry.

I actually like this stuff. But I do know this isn’t one of those grammar blogs.

Back to the point. It's this. Most of the phrases that we can easily think of modify one specific word. Clauses usually do too. You can usually draw a line connecting the modifying phrase or clause to the one word it modifies.

But the kind of phrase that opens the Second Amendment doesn’t modify anything specific. You can’t draw a line between it and a word in the main part of the sentence, the way you can with “on the left” and “rooster,” say. That oddball fact has made some people call the whole of the Second Amendment ungrammatical. I think the law journalist Jeffrey Toobin is among them, and while I know what he means, it’s not quite right. English grammar does have a place for this awful, awkward, confusing type of phrase.

It’s called an absolute phrase.

Abuse of the absolute phrase in the Second Amendment has wrought a full-on disaster, going way beyond the grammatical. For one thing, the phrase’s real function has either so bewildered the majority of the Supreme Court of the United States, or offered the majority such an easy excuse for pushing its own views about gun control, that Heller amounts not only to a decision with very bad real-world effects on life in this country but also to a big, steaming affront to logic, which should undermine confidence in the Court as an institution.

But now I find I really am writing at excessive length.

So I have to leave you hanging there on that cliff, until next time, when I’ll reveal why most absolute phrases, especially those relying on the word “being,” as in the Second Amendment, are toxic to clarity; why I think the founders used it anyway in this case; and why Scalia’s grammar errors undermine his entire landmark opinion in Heller. I have a feeling you subscribed to BAD HISTORY for the bad history, not the bad grammar—so please note that I’ll also be posting on the egregious history failings in Heller, and on other matters, too, of course . . .  

“Stick with me, baby. Stick with me anyhow./Things should start to get interesting, right about now.”

— Dylan (a grammarian in his own way)

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Further Reading

While I think the Second defeats all efforts to make sense of it, here’s the best effort ever, from Garry Wills (its walled, but I think you can read it free with a signup).

District of Columbia v. Heller.

The oral argument in Heller features some embarrassingly bad history from justices across the political spectrum.