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Posts Tagged ‘Grammar’
The Supreme Court of the United States has made it clear: Americans unaffiliated with any militia possess a constitutional right to keep and bear arms. More than 36,000 fire-arm related deaths befall the U.S. each year. Handguns account for more than 80%. Half are suicides. Because suicide is an impulsive act, many probably would not happen if guns were not so easily available. More male teenagers die from gunshot wounds than from all other causes combined. In addition to the deaths, more than 86,000 people a year are wounded by fire-arms, again mostly by handguns. In spite of those horrific facts and for what it is worth, here is my judgment on the case: The Court got to the right political and institutional result, but for the wrong legal reason. (I would not have voted to accept the case in the first place, but the Court did.)
Guns are too much a part of our current culture in the U.S. for the Supreme Court to pronounce them illegal. Institutionally and politically, the Court trimmed its sails. Even with the best captain and crew in the world, no sailing ship can sail directly into the wind, even if it needs to.
Enough Americans are not yet fed up with the audit of gun death and destruction. An opinion of the Supreme Court outlawing handguns would do nothing to speed the day when we are sufficiently fed up and might actually slow the process.
But purely as a matter of law, especially if you are — as Justice Scalia loudly and often proclaims himself — a “textualist,” you should conclude that the words and grammar of the Second Amendment protect only a collective right to bear arms for service in a militia. Otherwise, the entire first clause and all those commas are meaningless. Only a self-deluding textualist, hell-bent on achieving the result he desired would read the first clause of the 2nd Amendment out of the Constitution.
Frankly, the Framers never thought about gun control. Back then everybody had guns and all the states had militias. It never occurred to anyone that private ownership of handguns would ever be a serious societal problem in parts of the country. Nor did it occur to them that regulating handguns might solve such a problem. Moreover, Justice Scalia notwithstanding, gun control never crossed the minds of the white male property-owners over 21 who voted to ratify the Constitution. Guns, like limited suffrage, were taken for granted. As Newton could not have imagined a regime where his formulae do not work (Quantum Mechanics), neither could those men have imagined one without private guns or one where women voted.
It is silly to answer a modern question by imagining thoughts that dead people never thought. The Framers had no intention about gun control because they never thought about it. Neither did the people who voted to ratify the Constitution.
Ironically that is why, if you accept a theory of constitutional interpretation which includes modern understandings, it is reasonable to conclude that the ambiguous text of the 2nd Amendment protects an individual right to handguns and single-shot hunting rifles. The 5-4 decision probably tracks current opinion polls faithfully. That is where our culture is at the moment.
And make no mistake, that is exactly how the majority decided this case. That is what Justice Scalia labored mightily to hide in his opinion for the Court. After all, a real textualist would never ignore three lowly commas.
This ends, for awhile anyway, the series of posts about the Second Amendment. Disappointed that the Court skipped the commas and the “ablative absolute” issue, I subside now to wait for a more literate Court.
While I complain about the Court’s sins of omission, here is Ross Guberman on the Court’s grammatical sins of commission.
47 amicus briefs against the D.C. ban on handguns were filed in the Heller v. D.C. case before the Monday deadline. Of necessity, the summaries here and in the next post in the series, represent only the tip of that iceberg. All the briefs are here.
One thing all these briefs for Heller proclaim is the need we all supposedly have to keep guns in our homes for self-defense. This is largely an urban myth. The odds of being attacked in our homes are about the same as winning the lottery. However, even if it were possible to dismantle that emotionally-based myth, the legal question would remain. Just because a man does not need a gun does not mean he has no right to have one. Nor does it address his right — or lack of one — to keep guns for hunting or target shooting.
A moment of disclosure here: As far as I am able to discern, I don’t have an emotional dog in this gun control fight. I grew up in a home fathered by an avid hunter and lifetime member of the NRA. I share with many hunters a love of the outdoors but am not a hunter myself. I have slept many nights in homes with guns and many nights in homes without guns and slept soundly in both. In addition, I believe that the Court’s eventual decision, no matter what it is, will have no practical real-world impact. More on that in a subsequent post when I assay my own prediction about what the Court will do.
Another common thread in the briefs is the assumption that the first clause is only a “preamble.” So far, I’ve read only two of the Heller briefs that dig deeper. Of those, only the brief of Professor Lund on behalf of an organization called The Second Amendment Foundation, devotes any time to the grammar of the Amendment. (Professor Lund has written before about the 2nd Amendment and he frequently cites himself as the authority for the propositions he asserts. However, his immodesty does not mean his arguments are wrong.)
But before he wades into the grammar wars, he too begins by declaring the first clause a preamble and then wastes no time telling the Court that we need to have guns to protect ourselves from violent criminals.
The principal reason for including a preamble praising the militia – a preamble that does not substantively alter the operative prohibition on federal overreaching – was to endorse the traditional citizen militia, which many Americans preferred as an alternative to standing armies. The language, grammar, and history of the Amendment show both that its protection is not limited to militia related activities, and that the protected right does extend to having arms for self defense against violent criminals.
But after that “preamble,” to his brief, Professor Lund meets directly the arguments of the English professors which I summarized here.
Still referring to the first clause as a “preamble,” he agrees that the clause is an “absolute phrase” grammatically independent of the second clause but then asserts, “Such constructions are grammatically independent of the rest of the sentence, and do not qualify any word in the operative clause to which they are appended.” It is “self-evident” that the “preambular phrase” is just one reason for guaranteeing the right to keep and bear arms. Because the clause is independent, it modifies nothing in the second clause. The English professors are wrong. The absolute clause does not affect the “operative” clause. Their “self-evident” interpretation is wrong while Professor Lund’s “self-evident” interpretation is right.
Professor Lund continues:
Another very significant grammatical feature of
the Second Amendment is that the operative clause is
a command. Because no word in that command is
grammatically qualified by the prefatory assertion,
the operative clause has the same meaning that it
would have had if the preamble had been omitted, or
even if the preamble is demonstrably false.
Even if it could be proved that disarming the people is necessary to maintain the Republic, the government could not do it constitutionally.
The other brief that I have read — thus far — which discusses the grammar is that of an Alabama organization named Foundation for Moral Law, a foundation dedicated to “defending the Godly principles of law upon which this country was founded.” “Our God-given freedom starts with the natural right of self-defense,” according to the Foundation.
The Foundation has a slightly different take on the first clause and discusses the commas specifically. According to the Foundation’s brief, “The clause containing the militia language is a dependent clause, while the arms-bearing anguage is located in the independent clause. . . .” Thus the second clause can stand on its own, but the first clause, “. . .only forms a complete thought if coupled with the main focus of the compound sentence—the “right to keep and bear arms.” The function of the first and subordinate clause is to explain why the right must be protected; not to qualify it.
Of most interest, the Foundation discovered that the first and third commas were omitted when the 2nd Amendment was actually printed in the Statutes at Large of the United States indicating:
. . . that the second comma was grammatically necessary to set off the two major parts of the amendment, while the other commas represented grammatical quirks of the time.
Everyone agrees it is just simpler to ignore the first and third commas.
The briefs opposing the District of Columbia’s ban on handguns are due in the Supreme Court today. Before being deluged in those, I thought it time to summarize the brief of the English professors in support of the ban. The opponents will no doubt bring in their own grammarians and I will summarize those before the argument, scheduled for March 18.
You can read the proponent English professors’ brief here and I recommend it. The quality of briefing in this case is high and likely to remain so.
Although it takes them 15 pages of argument to get there, the English professors who weighed in on the side of the D.C. handgun ban conclude — expressed in the abstract language of mathematics — that the 2nd Amendment says: “Because X is necessary, Y shall not be infringed.” Because we need a well-regulated militia, the people shall be allowed to have the weapons necessary for service in such a militia.
Here is what the professors have to say about those three commas:
The Amendment’s first and third commas signal a pause
for breath and can be omitted without affecting the
meaning. The second comma, however, marks the customary separation of an adverbial clause from a main clause.
Inserting commas for breathing, not for grammatical meaning was common in the eighteenth century. For an example the professors give us Article III, Section 1 of the Constitution. “The judicial power of the United States, shall be vested in one Supreme court.” Some English punctuation was still in its Petri-dish stage at the time the Constitution and Bill of Rights were penned.
With the first and third commas demoted to breathers what remains is an absolute clause modifying the main clause in much the same way adverbial clauses modify main clauses. Finally, we get to the Latin:
Historically, the nouns in absolute constructions appeared in the dative case in English or the ablative in Latin, on which the English absolute was modeled. Those cases overtly marked the absolute phrase as subordinate to the main clause of the sentence.. . . .Alexander Adam, The Principles of Latin and English Grammar 213 (4th ed. 1793) (stating in connection with the Latin ablative, from which the English absolute construction derives: “The ablative called absolute is governed by some preposition understood; as, a, ab, cum, sub or in.”).
To argue that the first clause does not modify the second and is grammatically completely independent; modifying nothing, as some English professors have argued, reduces the Amendment to the nonsense statement:
“Because X is necessary, Y shall not be infringed; but the fact that X is necessary is not the reason that Y shall not be infringed.”
In other words, the professors assert, the D.C. Circuit Court of Appeals was grammatically wrong when it ignored the first clause. Grammar rules, like words, have meanings and judges attempting to discern those meanings may not ignore words or the rules of grammar.
Additionally, they argue that the words “bear arms” always meant “military arms,” an argument to which we will return after all the briefs are filed.
For now, my ship having arrived, it is time for me to depart.