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 (that's me) explains why.

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 (note the difference in comma usage compared to the Amendment as rendered by Newman - more on that later):
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…”
    “Since…”                            >       “…a well regulated military is necessary…”
    “Due to the fact that…”
    “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.


An interesting conclusion by the authors of an anonymous blog (yeah, i know, bad scholar, BAD scholar...) 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: ; 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: