Thursday, April 18, 2013

One, linguist's, thoughts, on, the, Second, Amendment,

My undergraduate microeconomics professor used to express market dynamics in terms of “guns and butter.”  (Butter doesn’t kill people, bad diets kill people.)  Most conversations about guns outside the classroom, however, focus on meatier real-world issues.  Gun owners are afraid that someone is going to come and take their guns away.  And maybe they should be, since, properly analyzed, there is NO Constitutional protection of an individual’s “right” to own a gun. This does not mean that gun ownership is or should be illegal.  Just don’t look to the Constitution for help.  This linguist explains why.

THE TEXT OF THE SECOND AMENDMENT
“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.”
SECTION I:  APPOSITIVE ANALYSIS:  OVERSIMPLIFIED, BUT SUGGESTIVE.

First, let’s review what an appositive is.  An appositive is a phrase or clause, set aside from the main sentence by commas, that serves to define, clarify, describe/modify, or rename the noun, noun phrase or pronoun directly preceding it.

For example:
1.    “My sister, who lives nearby, is coming for a visit.” 
(The relative clause “who lives nearby” is in apposition.  Note that the removal of the appositive does not change the sentence's meaning ; it merely removes some clarifying information about “my sister.”  Refer here for more info on appositive relative clauses.)

2.    “My sister, a heck of a cook, is going to make Thanksgiving dinner this year.” 
(In this case, the noun phrase “a heck of a cook” is in apposition, and clarifies/modifies the noun phrase “my sister.” Again, the appositive’s removal does not change the force or meaning of the sentence.)

3.    “Have you had a chance to meet the guest of honor, my sister?”  
(Note that the appositive in this case has a single comma due to its sentence-final position.  The noun phrase in apposition, “my sister,” names/specifies/identifies the noun phrase it follows, “the guest of honor.”)

4.    “Have you met the guest of honor, my sister, Umfufu King?” 
(Two sentence-final appositives.  This is a trickier case.  Appositive #1, “my sister,” clearly names/identifies its preceding noun phrase, as in the previous example.  However, appositive #2 could be considered to either ALSO  name/identify “the guest of honor,” in which case the dual appositives would be parallel in their naming function; or, appositive #2 could be seen as a FURTHER clarification, its scope restricted to the “my sister,” the noun phrase immediately preceding it. See below.)
Represented structurally, the two look something like this:
4a.  Have you met [the guest of honor [my sister] [Umfufu King]]? 
4b.  Have you met [the guest of honor [my sister [Umfufu King]]]?
What all of these have in common is that commas are used to set aside the clarifying information in such a way as its removal does not change the force of the sentence; i.e. removing the appositive(s) leaves the sentence intact:
5a.  “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.”
“Being necessary to the security of a free state” seems to be, in this analysis, expanding on the noun phrase “a well regulated militia.” 

“The right of the people to keep and bear arms,” then, must be a second “parallel” appositive, also reflexing back to the noun phrase “a well regulated militia.”  (It couldn’t be a nested appositive of the type diagrammed in 4b, since its preceding element is not a noun or pronoun phrase.)  Plus, this would make historical sense, since the Continental armies’ “minutemen” possessed their own weapons, which they would bring with them when called to service.  An anonymous blog post speaks to this; normally, I would not cite something so otherwise dubious, but it’s such a common-knowledge fact as to render the source, in this case, pretty much moot. I just like the writer’s phrasing:  “[T]he idea of a standing federal army was not a reality at the time. Armies held during times of peace was actually one of the complaints in the Declaration of Independence. Standing armies were State militias comprised of state residents, not Federal armies.”  Besides, we all learned this back in the 70s when we were kids, watching Schoolhouse Rock: “Take your blanket, take your gun, report to General Washington…”  
It is also conceivably possible to interpret the 2nd Amendment thus, using an appositive-based analysis:
5b.  “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.”
In this case, “the right of the people to keep and bear arms” is in apposition for the purposes of clarifying or exemplifying the noun phrase “a free state.” This is an interesting argument, but it is still problematic, in that there is a lack of parallelism between “state” and “right” that makes it seem an unlikely and awkward structural option for a skilled wordsmith such as Madison.

It is in fact not a problem that such an analysis leaves the base or core sentence as “A well regulated militia shall not be infringed.” This seems awkward at first, as we do not typically use a verb like “infringe” with concretes (you can infringe upon rights or freedom or enjoyment, but not “a militia”) but we must look to common usage in colonial times.  The Oxford English Dictionary is replete with colonial-era exemplars of the verb “infringe” that do, however, make sense: “To break the force or diminish the strength of; to weaken, enfeeble, impair; to mitigate,” “to break, shatter...; to break down, crush, destroy; to foil, defeat, frustrate; to cancel, invalidate.” All were in use through at least the end of the 1600s.  While the sense of “infringe” as “to encroach on or upon [a law, a right]” first saw light in 1769 (OED), and was in use at the time of the penning of the nation’s foundational documents, there is no evidence that the aforementioned use was out of fashion or that the 1769 usage displaced any other usage.

However, even were one to make the argument that “infringe” was intended to have its 1769 meaning, and therefore not apply to “a well regulated militia” but rather to “the right of the people to keep and bear arms” (which would require ignoring the comma after the word “arms,” an issue discussed later), that still does not definitively establish a Constitutional right to individual firearm possession due the semantic forces on the sentence, as I shall explain further on.

A grammarian’s conclusion from this first, tentative, analysis?  There is no Constitutional right for individuals to own guns.  So let’s dig deeper.

SECTION II:  ABSOLUTE ANALYSIS:  A CLOSER LOOK, WITH THE SAME CONCLUSION

Truly hard-core grammarians and linguists would take a different approach.  (Appositives are so very “intermediate school.”  And besides, even though the clause starting with "being" is in apposition, most would not technically call it an "appositive.")  The true linguistic geekarati whip out the big guns.  No pun intended.

Barbara Newman writes:
The Latinate framers of the US constitution employed an ablative absolute in the Second Amendment: ‘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.’ An interpreter who favoured regimen would argue that the ablative clause determines the sense of the main clause; hence, the state has the right to maintain an army. Those who favour the absolute, as American courts have done, bracket the militia clause and take the main clause to mean that citizens may own as many firearms as they choose. The difference between constructions amounts to roughly 12,000 murders a year
Setting aside Ms. Newman’s editorial digression, what is an ablative absolute?  An English absolute is a construction formed by a noun or pronoun, and a participle; it is an English reinvention of a classical bit of stylized Latin rhetoric, the “ablative absolute,” many examples of which can be found, with simple explanations, here.

What seems to be clear is that while an ablative absolute construction does not have any grammatical or syntactic force over the main clause of the sentence, it has strong causal  or semantic  force.  Read retired English teacher Mark Moe’s recent article on this idea here.

This logic even made its way to the Supreme Court. Here is a passage from the introductory section of the amici curiae brief, a Brief of Interest, submitted to the United States Supreme Court by a team of linguistics professors specializing in the history of English grammar and the linguistics of English in legal contexts:
The Second Amendment reads: “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.” Under longstanding linguistic principles that were well understood and recognized at the time the Second Amendment was adopted, the “well regulated Militia” clause necessarily adds meaning to the “keep and bear Arms “clause by furnishing the reason for the latter’s existence. The first clause is what linguists call an “absolute construction” or “absolute clause.” It functions by melding the sentence “A well regulated Militia is necessary to the security of a free State “together with the sentence “The right of the people to keep and bear Arms shall not be infringed” to express this thought: “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.” On its face, the language of the Amendment tells us that the reason why the right of the people to keep and bear arms shall not be infringed is because a well regulated militia is necessary to the security of a free State. The purpose of the Second Amendment, therefore, is to perpetuate “a well regulated Militia.”
Dr. Denis Baron, an English linguistic historian and professor at the University of Illinois, one of the authors of the amicus brief, writes in his blog, “Absolutes are grammatically independent, no doubt about it. But grammatical independence has always been narrowly defined, and it never excludes the clear semantic connection between an absolute and the rest of the sentence.”

So now let’s look at the Second Amendment again:
5c.  “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.”
Sentence 5c illustrates the absolute construction in bold:  “a well regulated militia” is the noun phrase, and “being” is the participle.  But what about that dratted comma?  Adam Freedman offers a sensible observation:
[T]here could scarcely be a worse place to search for the framers’ original intent than their use of commas. In the 18th century, punctuation marks were as common as medicinal leeches and just about as scientific. Commas and other marks evolved from a variety of symbols meant to denote pauses in speaking. For centuries, punctuation was as chaotic as individual speech patterns.  
The situation was even worse in the law, where a long English tradition held that punctuation marks were not actually part of statutes (and, therefore, courts could not consider punctuation when interpreting them). Not surprisingly, lawmakers took a devil-may-care approach to punctuation. Often, the whole business of punctuation was left to the discretion of scriveners, who liked to show their chops by inserting as many varied marks as possible.  
Another problem with trying to find meaning in the Second Amendment’s commas is that nobody is certain how many commas it is supposed to have. The version that ended up in the National Archives has three, but that may be a fluke. Legal historians note that some states ratified a two-comma version. At least one recent law journal article refers to a four-comma version.
James Madison was classically educated, and it is more than fair to say that he would have known the classical ablative absolute style.  If the sentence is rendered in such a fashion, and the last comma, for which there seems to be no earthly grammatical reason (in Madison’s century or ours) for its existence, eliminated, this much clearer Second Amendment redux (also alluded to in the SCOTUS amicus brief) is yielded:
5d.  “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 gun lobby’s collective urge to say “A-ha!” at the now unified “the right of the people to keep and bear arms shall not be infringed” must be stifled (or perhaps, “infringed?”) by the semantic force of the absolute phrase, which clearly subordinates the truth-value of the main sentence to the conditionality established by the prefatory content, similar to:
    “Inasmuch as…”
    “Because…”
    “Since…”                            >  “…a well regulated military is necessary…”
    “Due to the fact that…”
    “As…”
    “As long as…”
In other words, the right to possess a gun is predicated on the existence of a State-backed civilian militia; in the absence thereof, the sentence’s main clause becomes vacuous, moot.

One does not need to even refer back to history, that American law is rooted in British Common Law (an article in the Huffington Post looks into this a little bit with regards to the Second Amendment specifically), to recognize that a purely linguistic analysis of the Second Amendment fails utterly to confer upon Americans a Constitutional right to possess guns.

SECTION III: BUT WHAT ABOUT NATURAL RIGHTS?

An interesting conclusion by the authors of the anonymous blog I referenced earlier offers these as food for thought:
…owning guns was an everyday reality for virtually everyone at the time the amendment was written. The idea that a hunting rifle could be banned would have been as outrageous as banning cars today. It was some people's means of food and money -- and I don't mean shootists, I mean hunting.[ … ]

As Patrick Henry said, "Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined...." This is the attitude of the Second Amendment. The People have the right to maintain the ability to keep the Federal government in check against tyranny. The right to own weapons privately is assumed in this, as is the right to self-defense (another item already a part of British common law before the Constitution was drafted). Early commentary on the amendment confirms this view. The Boston Journal of the Times printed in 1769, commenting on the British Bill of Rights and the King's attempt to disarm the colonists, that "It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence." The right to own a gun was viewed as a NATURAL RIGHT. One of the self-evident, unalienable rights that the people had, and commissioned government to protect .
There are two issues here. The first is survival.  The idea of guns for survival is vestigial, like a useless organ or withered limb, and has little or no force in the calculus of determining so-called “gun rights” in our time.  The second is defense, and specifically, defense against one’s own country.  The Declaration of Independence does call for rights-respecting and freedom-loving people to rise up and revolt when it proves necessary:
“But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” 
Certainly it is not possible to do so against a government that has a standing army, without arms oneself?

These issues, while worth debating, are outside the extant question, however.  Neither finds purchase in the wording of the Second Amendment, under any of the interpretations, phrasings or punctuation arrangements listed in this treatment, anyway.  And to take the conditions of the then and apply carelessly them to the now, is to be guilty of a version of the fallacy of false etymology or false definition.  (Though it might well tickle one who was opposed to the proliferation of guns to suggest to overzealous gun advocates that, okay, sure, the Second Amendment means exactly what you think it means, but the definition of “arms” is frozen to only include technologies available at the time of the document’s writing.)

If there is a natural right to gun possession, then it must be an argument based on principles, not on the wording or the grammar of the Second Amendment, or whether the Second Amendments is properly rendered with one, two, three or four commas; it is an argument for philosophers.  If there is a blanket right to own a gun, it exists outside the Constitution, definitively.  [Comment:  With regard to principle, I will say that I believe that implicit in the rights to life, liberty and property is the right to defend that life, liberty and property.  But that's not the issue of this piece; that's an issue of philosophical principle, not linguistics.]

About those philosophical principles, I have said, and will say nothing (else).  I’m not calling for the abolition of all personal firearms (as some will surely accuse). Nor, in fact, am I even calling for the abolition of ANY firearms.  As a linguist, simply put, the “right to bear Arms,” as the phrase is used (wielded?) nowadays, is NOT extant in the Constitution.  

Now, put that in your musket and fire it.  (Now, put that in your musket, and fire it?) 

Dratted commas

1 comment:

  1. More on the linguistics here: http://linglaw.blogspot.com/2008/03/linguists-on-dc-v-heller.html ; and an EXCELLENT brief on the actual period meaning of "bear Arms," circa 1700-1800, here (if you're a scholar, this will blow your mind: http://www.potowmack.org/emerappa.html

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