Guns and Grammar, or How to Diagram the Second Amendment
FIRST IN 2008 and again in 2022, Supreme Court justices assured us that their close textual reading of the Second Amendment revealed its original meaning: Americans have nearly an unlimited right to carry any kind of gun anywhere they please. Former justice John Paul Stevens said this recognition of an individual right to gun ownership was the worst decision of his 34 years on the court. Conservatives countered that Stevens was an extreme left-wing liberal who would naturally say such a thing. And yet Chief Justice Warren Burger, a conservative, agreed with Stevens, saying that the reinvention of the Second Amendment as an individual right to own guns was one of the greatest frauds on the American people. Who is right here?
The Second Amendment has been debated endlessly. There are numerous textual interpretations of the amendment that spring from myriad legal, historical, cultural, and linguistic perspectives. Ample historical arguments exist about what “Militia” and “well regulated” mean today and also meant in colonial times. In terms of linguistic analysis of the 27-word amendment, the challenge before judges and us is this: how do we read a colonial English sentence? The court’s 21st-century decisions in District of Columbia et al. v. Heller (2007) and New York State Rifle & Pistol Association v. Bruen (2021) are both based on a textual analysis that supports the “originalist” interpretation that justices Stevens and Burger found fraudulent. Justices in the minority offered dissents to these decisions, as did professors of English and linguistics who filed amici curiae briefs. These justices and professors offered strong counterarguments to the majority opinion, but they didn’t carry the day.
How could they have been made even stronger? What was missing? Absent from both the dissenting justices’ and the professors’ arguments was a clear critique of the court’s grammatical reading of the amendment that served as the basis for its textual interpretation and reinvention of the Second Amendment.
Let’s examine the words of the Second Amendment in terms of the court’s analysis that became the starting point and grammatical foundation for its majority rulings: “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.” The reason for confusion, as many liberals and conservatives agree, is that the wording of the amendment seems ambiguous. But it actually isn’t. The Second Amendment is a crystal-clear, perfectly formed sentence. We just need to understand its grammatical construction.
The majority justices’ approach to the basic grammar of the amendment’s 27 words was led by Justice Antonin Scalia’s implementation of the New Critical theory of close textual reading championed by his professor father. To establish the original understanding of the words on the page as written in 1791, Justice Scalia followed the principle that “only the written word is the law.” For the meaning of words, he consulted both the 1773 edition of Samuel Johnson’s Dictionary of the English Language: In Which the Words Are Deduced from Their Originals and Noah Webster’s 1828 American Dictionary of the English Language.
As far as grammar is concerned, Justice Scalia correctly notes that the Second Amendment is a single sentence in two parts. So far so good. He says the two parts divide naturally into a “prefatory clause” and an “operative clause.” He slips here because he’s now inventing his own grammatical language. He goes on to say that the “prefatory clause” about the militia is just a clarifying “preamble” or “prologue.” In a paraphrase of the amendment, he concludes that the “operative clause” gives Americans the right to “keep and bear arms for self-defense.” That’s when he completely misunderstands the organic connection between the two parts of the sentence.
And he isn’t alone. Misunderstanding ballooned as other judges repeated Scalia’s reference to the first part of the amendment as a “prefatory clause,” spawning a chain of grammatical errors. They have no excuse for it. It isn’t a prefatory clause. It isn’t a clause at all.
Since as early as the sixth grade, I had banged into my head by the Sisters of St. Joseph of Carondelet the rule that a clause requires a subject and a verb. As a result, I am quite dismayed that not one of the six justices who attended a Catholic elementary school or high school (or both) offered a correct grammatical reading of the Second Amendment. Surely, some must have spent as many hours as I did at the chalkboard diagramming sentences into nouns, verbs, participial phrases, indirect objects, dependent clauses, adverbial modifiers, and other parts of speech. I would’ve loved to see Justice Scalia try to wriggle his way out of a stern injunction from Sister Kathleen Mary that he wasn’t permitted to fabricate his own grammatical terminology.
The point here isn’t a neglected technicality. Rather, it goes to the heart—the linchpin—of the majority justices’ decision. The decision rests solidly on Justice Scalia’s grammatical analysis of the way the two parts of the 27-word amendment are grammatically linked. To Scalia’s claim that his prefatory clause about a well-regulated militia doesn’t limit “grammatically” the operative clause concerning the right of Americans to bear arms, Sister Kathleen Mary would have responded, “Wrong! The exact opposite is true grammatically.”
While diagramming sentences has grown less fashionable as a way of teaching writing, it remains an effective tool for revealing how the construction of a sentence determines its meaning. So, let’s look at a diagram of the Second Amendment.
The top line of the diagram illustrates how the first part of the sentence can’t be a clause because the isolated noun (militia) isn’t followed by a verb. Instead, it’s modified by a participial phrase. For justices to say otherwise isn’t a small error unworthy of a fuss. This initial mistake begins a string of grammatical errors and mistaken readings that distort the meaning of the sentence while failing what might be a sixth-grade grammar test. The court’s entire interpretation rests on Justice Scalia’s mistaken grammatical analysis that the concurring judges follow to justify their decision. They fail to recognize how the grammatical linkage between the two parts of the sentence makes the amendment restrictive. Rather than saying anything about the positive right to bear arms, the linkage only specifies a condition under which the right may not be infringed.
The first part of the sentence is a form borrowed from Latin called an ablative absolute, a grammatical construction widely used in that language to define the time or cause for an action. It’s linked in meaning to the rest of the sentence but is otherwise grammatically independent or free-floating. A translated example of such a Latin sentence might be: “The enemy being exposed, Caesar led the charge.”
The diagrammed sentence looks like two separate statements, but the first gives the reason for Caesar’s charge. It’s called absolute (absolūtum, free or separate) because it stands apart from the rest of the sentence. But it expresses the cause or occasion for the main action of the sentence: “Caesar led the charge.”
The absolute is a powerful construction that can simultaneously combine the reason and time for an action. A study of Latin is a help here but is not strictly necessary. We can see how temporal and causal meanings overlap in an English sentence like “The day being rainy, we stayed home” to offer a dual understanding of when and why we stayed home (because and when the day was rainy).
To keep to the heart of this grammar lesson and avoid a shouting match between the justices and the Sisters of St. Joseph of Carondelet, let’s accept for the moment Scalia’s use of “prefatory clause” in a general lawyerly way. Even if he labels it incorrectly, he seems to acknowledge its grammatical function in saying it “announces a purpose.” He concedes that the right to “bear arms” must serve the “stated purpose” (at least in part) of having a “well regulated Militia.” His point is that the clause announces a purpose—but not the sole purpose—of the right to bear arms.
But here’s where he makes a grammatical error regarding the way the two parts of the sentence are linked. The grammar of the sentence doesn’t announce a purpose for the right to bear arms. It announces when and why the right shall not be infringed. The diagrams above show that absolute constructions never modify the subject of the sentence but always the predicate. The Second Amendment doesn’t say we can’t own guns to go hunting or maybe even to defend ourselves when necessary, but the right for such purposes can be infringed, as already happens with the constriction of times of year and kinds of guns we can own to shoot elk. The Second Amendment uses the absolute borrowed from Latin to give us the reason and occasion for the main command of the sentence—when and why the right to keep and bear arms for a well-regulated militia shall not be infringed.
To those textualists and originalists who complain that what’s pertinent here is the “plain meaning of the text as understood when written in English, not Latin,” we have to point out that many Founding Fathers had a classical education and frequently wrote with absolute constructions. James Madison, who wrote the Second Amendment, was a master Latinist who learned the language at 12 and later translated many Latin orators. In a memorandum, Madison opened with an absolute (as shown by my added emphasis), “The conversation being at an end, he took his leave with a cold formality, and I did not see him afterwards.” John Hancock followed suit more elaborately in a letter: “The enclosed Resolves of Congress being necessary for your Information, & Direction, & relative to the Department immediately under your Command, I do myself the Honor of transmitting the same.” The grammatical form was commonplace at the time, and most readers, even without formal training, would understand its use.
Absolute constructions also aren’t grammatical fossils irrelevant to current English. We still use sentences today that contain free-floating absolutes to modify verbs in the same way as in the Second Amendment, through phrases such as “all things being equal,” “everything being considered,” “weather permitting,” “God willing,” “that being the case.” Here’s another example of an absolute construction defining the reason and occasion for an action: “The first draft of the Second Amendment being repetitive and clunky, James Madison revised it.”
Here’s Madison’s first draft: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” In his revision, Madison created a more precise, elegant sentence, comprised of an absolute construction and an independent clause, to become the Second Amendment as we now know it. The grammar of the amendment is clear in both its original and current meaning. What becomes unclear are multiple legal and historical interpretations spawned by rephrasing the amendment.
In his literary analysis, Scalia failed to recognize the grammatical construction of the amendment. The words on the page don’t guarantee citizens an individual right to gun ownership. They say nothing about a protected right to keep guns at home or in the street for self-defense. In 1791, the grammar of the amendment would be understood to declare the limited circumstance for when and why the right to bear arms can’t be infringed. (I’ll add here an originalist historical note to buttress this textualist reading: in colonial times, members of state militias were expected to supply their own weapons.)
Chief Justice Roberts’s oft-repeated proverb that “the want of a horseshoe nail leads to loss of the kingdom” indicates the process by which an initial mistake can create a disastrous chain of causation. Unfortunately, the want of a correct textual reading of the Second Amendment leads to the disastrous loss of its originalist meaning. As Sister Kathleen Mary might say: the Supreme Court has many powers, but alteration of English grammar isn’t one of them.
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Featured image: Vasily Kandinsky. Painting with Troika, 1911. The Art Institute of Chicago, Arthur Jerome Eddy Memorial Collection. www.artic.edu, CC0. Accessed June 8, 2023.
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