The Simplified blog

According to a recent article in the New York Times, enviably entitled ‘Clause and Effect’ (Adam Freedman, 16 December, 2007):

Why? At first glance, it’s the fault of the following three little commas:

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 comma clash is complicated. To simplify it, we can ask whether the second comma completely (syntactically and semantically) divides the sentence into two. If it does, ‘the right of the people to keep and bear Arms shall not be infringed’, and therefore an anti-gun ordinance would be contrary to this Amendment.

And, from the other corner, is the view that the clauses are more closely related, so that the right of the people to keep and bear Arms relates only to a well-regulated Militia and not to the rights of each citizen.

A recent post on Language Log (Liberman, 2007) poses the question more precisely (and technically): ‘The question is, to what extent does the meaning of the adjunctive clause contextually restrict the interpretation of the words right and people in the main clause? (And perhaps the meaning of the phrase bear arms as well.)’

There is even one interpretation given by a group of ‘anti-gun academics’ (Freedman, 2007) in a 2001 case who claimed a meaning of: “a well-regulated militia ... shall not be infringed”.

The commas don’t shed much light. For one thing, so chaotic was punctuation usage in the day when this sentence was written that punctuation was not included in interpretation of law. So the commas are out. Freedman therefore removes them to parse the sentence grammatically.

He finds that ‘the founders — most of whom were classically educated — would have recognized this rhetorical device as the “ablative absolute” of Latin prose, which would point to a close link between the two parts of the sentence'. Therefore, ‘a well-regulated militia’ is to be interpreted as part of the subject of what shall not be infringed.

But, according to a Liberman, things are far fuzzier: most interpretations (except for the last one) agree that the full clause is an ‘absolute clause’ that’s similar to a clause that begins with ‘because’. Liberman gives a recast of:

Because (or since, or in view of the fact that) 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.

He concludes that ‘the syntax doesn't decide [the meaning] either’. The syntax is the same, just the interpretation is different.

So.. rather than interpretation according to modern grammar or punctuation or even interpretation according to historical language usage, we are left with one option: historical intention. In the context in which they drafted the second amendment, did the drafters intend to give a right to bear arms for purposes other than state-run militias?

Sources:

Mark Liberman, The right to keep and bear adjuncts, Language Log, 17 December, 2007

Adam Freedman, ‘Clause and effect’, New York Times, December 16, 2007