1. Guns and Grammar: Determining what the Second ... - English

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Baron, Language and Law, 1. Guns and grammar, 8Reading the Second Amendment’s absolute as a reduced cause-and-effectsentence, we can express the interdependence of the Amendment’s two parts thisway: ‘Because a well-regulated militia is necessary to the security of a free State, theright of the people to keep and bear Arms shall not be infringed.’Onions (1904, 69) finds that although absolutes were relatively rare in earlierperiods of English, by the seventeenth century the absolute had become thoroughlynaturalized, offering “an important . . . resource [to] all writers . . . for the purpose ofexpressing subordinate conceptions.”Americans had probably seen their share of absolutes long before they readthe Second Amendment. They might even have been tested on it in grammar schoolin some federalist version of “No Child Left Behind.” But even without formalschooling, eighteenth-century Americans would have had no trouble understandingthe absolute that specifies the reason for establishing land-grant public colleges inArticle 3 of the Northwest Ordinance of 1787:Religion, morality, and knowledge, being necessary to goodgovernment and the happiness of mankind, schools and the means ofeducation shall forever be encouraged.Article 3 of the Northwest Ordinance of 1787 opens with an absolute: “Religion,morality, and knowledge, being necessary to good government and the happiness ofmankind, schools and the means of education shall forever be encourage.The absolute was certainly familiar to James Madison, who drafted theSecond Amendment and who used absolute constructions elsewhere in his writings.Here are but two of many Madisonian absolutes:[T]he Executive power being in general terms vested in the President,all power of an Executive nature, not particularly taken away mustbelong to that department, that the power of appointment only beingexpressly taken away, the power of Removal, so far as it is of anExecutive nature must be reserved.[Letter to Edmund Pendleton, New York, June 21, 1789.]That, being a compact among the States in their highest sovereigncapacity, and constituting the people thereof one people for certainpurposes, it is not revocable or alterable at the will of the States
Baron, Language and Law, 1. Guns and grammar, 9individually, as the constitution of a State is revocable & alterable atits individual will.[Letter to M. L. Hurlbert, Mad. Mss., Montpr. May 1830.]Madison would not have used absolutes in his essays, in his correspondence,in the Second Amendment, if he suspected that his readers might find theconstruction odd, ambiguous, or unimportant.But even if absolutes are not to be isolated from the rest of a sentence in formor meaning, Nelson Lund further argues that purpose clauses of any kind are legallyirrelevant, that only operative clauses have any effect. Scalia and Garner (2012, 217)similarly acknowledge that “a preamble, purpose clause, or recital is a permissibleindicator of meaning,” though they qualify this by adding that such prologues areasides, “not part of the congressionally legislated or privately created set of rightsand duties.” Although the Constitution is not “congressionaly legislated,” in hisopinion in Heller Scalia affirms that “a prefatory clause does not limit or expand thescope of the operative clause” (Heller, 4). But to other readers, the fact that theSecond Amendment is the only one of the first ten with a causal phrase suggests themilitia clause is important, not just decorative. Eighteenth-century readers wouldhave noticed it, not ignored it. Until Heller, the Supreme Court did the same. EvenNelson Lund acknowledges as much when he calls the Second Amendment’sabsolute the amendment’s most significant grammatical feature, although he thenproceeds to tell us how insignificant it really is (2007, 12).Defining the Second Amendment’s words Along with questions about the Second Amendment’s grammatical structure, Hellerraised the issue of what, exactly, do some of its key words mean:• What did the framers mean by a militia?• What does it mean for a militia to be “well-regulated”?• Does the phrase “the people” refer to individuals or the collective polity?• What is the meaning of keep in the phrase to keep and bear arms?• What does bear mean?• What does arms refer to?• What is the meaning of bear arms?• Do the words ‘to keep arms’ and ‘to bear arms’—refer to two separateactivities? Or is keep and bear arms to be read as one single phrase?What is a well-‐regulated militia? Interpreters of the Second Amendment have skirmished over what exactly a militiais. Does it refer to an organized and trained fighting force, or does it refer to any andall individual citizens, from whom the militia is drawn? Gun rights advocates,
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