Commas and the Law, Part II – The Second Amendment

At the conclusion of our last exciting episode we learned that any purported right to own private guns depends on the “ablative absolute” Latinate grammatical construction of the 2nd Amendment. I’m sure you’ve been kept on the edge of your seats waiting for today’s exciting installment. This is almost as stirring as those old weekly black and white serials in the movie theaters where the hero is cast down into a pit of poisonous snakes at the end of the episode or the heroine is tied to railroad tracks just minutes before the west-bound is due.

royal-navy-flintlock.jpg

But what is the ablative absolute?

From Wikipedia I learn:

In Latin grammar, the ablative absolute (Latin: ablativus absolutus) is a noun phrase cast in the ablative case. More specifically it consists of a noun or pronoun and some participle (in the case of sum [“to be”] a zero morpheme often has to be used as the past and present participle do not exist, only the future participle), all in the ablative absolute.

There. Now that we have that clear . . . .

It indicates the time, condition, or attending circumstances of an action being described in the main sentence. It takes the place of, and translates, many phrases that would require a subordinate clause in English. . . .The closest English equivalent is the nominative absolute.

Good. Now all I need is a couple of examples, please. (Are you paying attention here, Justice Scalia?)

Ovidio exule, Musae planguntur.

* Ovid having been exiled, the Muses weep. (literal)
* With Ovid having been exiled, the Muses weep.
* The Muses weep because Ovid has been exiled.

Ira calefacta, sapientia dormit.

* With anger having been kindled, wisdom sleeps.
* Wisdom sleeps because anger is kindled.

Here is one more example, this time from Adam Freedman writing in the New York Times of December 16, 2007:

Caesar, being in command of the earth, I fear neither civil war nor death by violence” (ego nec tumultum nec mori per vim metuam, tenente Caesare terras). The main clause flows logically from the absolute clause: “Because Caesar commands the earth, I fear neither civil war nor death by violence.

Perfectly clear, sir.

If we are dealing with this Latinate construction, the 2nd Amendment reads, “Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed.”

That means it is the right to a well-regulated militia that is being protected, not an individual’s private right to possess firearms. (There is no doubt that the Amendment provides a right to possess firearms to individuals serving in a militia. The unanswered question is whether individuals not serving in a militia also have the right.)

Will the Supreme Court rule that there is no private right to bear arms in the United States? To find out the answer, tune in to our next installment of this series: A Snowball Travels to Hell or Global Warming: Myth or Fiction?

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8 Responses to “Commas and the Law, Part II – The Second Amendment”

  1. scandal17 Says:

    The phrase is an absolute phrase whether it’s understood as a translation from the Latin, where it would be in the ablative case, or from the Greek, where it would be in the Genitive case. An absolute phrase is a substantive phrase in no direct syntactical relation with any other element of the sentence. Nevertheless, the phrase is taken as standing for one of several different types of subordinate clause. Could be an if-clause, a temporal clause, a clause of accompaniment, etc.

    You tell me what kind of clause you want it to be.

  2. goldenstate Says:

    Thank you. That helped and I stand in awe of your knowledge of Latin and Greek. I’ve practiced law for more than 30 years and have concluded that judges reach decisions the way we all do; through a mixture of reason and emotion. The question isn’t what kind of clause I want it to be, the question is what kind of clause do they want it to be. I’ll incorporate your knowledge into the next post and thanks for your help.

  3. scandal17 Says:

    It’s the same thing, what kind of clause you want it to be, what kind of clause your judge wants it to be. It’s up for grabs in an absolute phrase, whether that phrase be in plain English, Latin, or Greek. The phrase, a sentence element not containing a verb, is made to stand for a form of subordinate clause. I’ll try to find an online reference grammar for you with a list of all the possibilities, which can seem endless when none of the choices does the job.

    This is nothing. Thucydides write long strings of narrative prose in the genitive absolute. So it is the case the an absolute clause can be made to stand for a main clause the sentence. Hobbes has a translation which conveys some of the agonizing effect.

  4. Mike Hansberry Says:

    In terms of grammar, the introductory clause of the Second Amendment is Absolute Construction and as such it can not be said to modify the subject of the main clause, instead it acts as justification as did similarly constructed provisions in early state constitutions.

    http://www.bartleby.com/64/C001/001.html

    http://www.constitution.org/2ll/schol/2amd_grammar.htm

    http://www.law.ucla.edu/volokh/common.htm

  5. Mike Hansberry Says:

    In the example from the OP, one readily sees that the Absolute clause does not modify the subject of the main clause.

    “Caesar, being in command of the earth, I fear neither civil war nor death by violence”

    “Ovid having been exiled, the Muses weep”

    Caesar’s being in command does not modify “I”, nor does “Ovid being exiled” modify “muses”,
    nor is “the right” qualified by the prefatory clause of the Second Amendment.

    The only argument remaining for those who want to read the prefatory clause as restricting the RKBA is to claim that the introductory language is meant to give guidance as to under what circumstances “the right,,,shall not be infringed” -as if one could read a provision of the Bill of Rights in such as restrictive manner and consider oneself intellectually honest.

    Moreover the text of the amendment does not lend itself to temporal limitations such as in the examples provided in the OP. Caesar is mortal and will not live forever, and Ovid was exiled at a particular time, but the prefatory language of the Second Amendment does not contain such time bound references. Nor is there an “if” or a “when” that would make a conditional.

  6. J. Neil Schulman Says:

    Only you’re wrong.

    The first part of the Second Amendment is not
    only not an absolute clause, it isn’t a clause at all.

    It’s a present participle phrase used as an adjective,
    modifying not “the people” but modifying “militia.”

    Roy Copperud was a newspaper writer on major dailies for
    over three decades before embarking on a distinguished seventeen-
    year career teaching journalism at USC. From 1952 until his death in 1992,
    Copperud wrote a column dealing with the professional aspects of
    journalism for Editor and Publisher, a weekly magazine focusing
    on the journalism field.

    He was on the usage panel of the American Heritage Dictionary,
    and Merriam Webster’s Usage Dictionary frequently cites him as
    an expert. Copperud’s fifth book on usage, American Usage and
    Style: The Consensus, has been in continuous print from Van
    Nostrand Reinhold since 1981, and is the winner of the Association
    of American Publishers’ Humanities Award.

    I interviewed Roy Copperud in 1991, asking him for a full grammatical
    analysis of the text of the Second Amendment.

    Here’s his analysis, available in my book Stopping Power: Why 70
    Million Americans Own Guns.

    [Copperud:] The words “A well-regulated militia, being necessary
    to the security of a free state,” contrary to the interpretation
    cited in your letter of July 26, 1991, constitute a present participle,
    rather than a clause. It is used as an adjective, modifying “militia,”
    which is followed by the main clause of the sentence (subject “the
    right,” verb “shall”). The right to keep and bear arms is asserted as
    essential for maintaining a militia.
    In reply to your numbered questions:

    [Schulman: (1) Can the sentence be interpreted to grant the right
    to keep and bear arms solely to “a well-regulated militia”?;]

    [Copperud:] (1) The sentence does not restrict the right to keep
    and bear arms, nor does it state or imply possession of the right
    elsewhere or by others than the people; it simply makes a positive
    statement with respect to a right of the people.

    [Schulman: (2) Is “the right of the people to keep and bear arms”
    granted by the words of the Second Amendment, or does the Second
    Amendment assume a preexisting right of the people to keep
    and bear arms, and merely state that such right “shall not be infringed”?;]

    [Copperud:] (2) The right is not granted by the amendment; its
    existence is assumed. The thrust of the sentence is that the right
    shall be preserved inviolate for the sake of ensuring a militia.

    [Schulman: (3) Is the right of the people to keep and bear arms
    conditioned upon whether or not a well-regulated militia is, in fact,
    necessary to the security of a free State, and if that condition is not
    existing, is the statement “the right of the people to keep and bear
    Arms, shall not be infringed” null and void?;]
    The Second Amendment and the Right…

    [Copperud:] (3) No such condition is expressed or implied. The
    right to keep and bear arms is not said by the amendment to depend
    on the existence of a militia. No condition is stated or implied
    as to the relation of the right to keep and bear arms and to the
    necessity of a well-regulated militia as requisite to the security of
    a free state. The right to keep and bear arms is deemed unconditional
    by the entire sentence.

    [Schulman: (4) Does the clause “A well-regulated Militia, being
    necessary to the security of a free State,” grant a right to the government
    to place conditions on the “right of the people to keep and
    bear arms,” or is such right deemed unconditional by the meaning
    of the entire sentence?;]

    [Copperud:] (4) The right is assumed to exist and to be unconditional,
    as previously stated. It is invoked here specifically for the
    sake of the militia.

    [Schulman: (5) Which of the following does the phrase “wellregulated
    militia” mean: “well-equipped,” “well-organized,” “welldrilled,”
    “well-educated,” or “subject to regulations of a superior
    authority”?]

    [Copperud:] (5) The phrase means “subject to regulations of a
    superior authority”; this accords with the desire of the writers for
    civilian control over the military.

    [Schulman: If at all possible, I would ask you to take into account
    the changed meanings of words, or usage, since that sentence was
    written two-hundred years ago, but not to take into account historical
    interpretations of the intents of the authors, unless those
    issues can be clearly separated.]

    [Copperud:] To the best of my knowledge, there has been no
    change in the meaning of words or in usage that would affect the
    meaning of the amendment. If it were written today, it might be
    put: “Since a well-regulated militia is necessary to the security of
    a free state, the right of the people to keep and bear arms shall not
    be abridged.”

    [Schulman:] As a “scientific control” on this analysis, I would
    also appreciate it if you could compare your analysis of the text of
    the Second Amendment to the following sentence,
    157
    “A well-schooled electorate, being necessary to the security of
    a free State, the right of the people to keep and read Books, shall
    not be infringed.”
    My questions for the usage analysis of this sentence would be,
    (1) Is the grammatical structure and usage of this sentence,
    and the way the words modify each other, identical to the Second
    Amendment’s sentence?; and
    (2) Could this sentence be interpreted to restrict “the right of
    the people to keep and read Books” only to “a well-educated electorate”
    — for example, registered voters with a high-school diploma?]

    [Copperud:] (1) Your “scientific control” sentence precisely
    parallels the amendment in grammatical structure.
    (2) There is nothing in your sentence that either indicates or
    implies the possibility of a restricted interpretation.

  7. Puppydaddy Says:

    A late addition, but I can’t resist, because the author left out the part where his/her interpretation crumbles.

    An absolute clause–yes, it really is a clause–admits of four possibilities, which are listed in any ninth-grade textbook. The author is correct that one is the ‘causal’ relationship (the right is protected because a militia is necessary). However, there is also the temporal and conditional relationships (the right is protected when or if a militia is necessary). And finally there is a concessive relationship (the right shall not be infringed *even though* a militia is necessary).

    This is in any textbook for online grammar guide. The question cannot be solved by a grammatical analysis, because the grammar is systematically ambiguous.

  8. Ruth Matheny Says:

    The grammatical construction of the Amendment is clear: The right to bear arms is related to and contingent only on the necessity of having a well-regulated militia.

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