Posted on 03/29/2008 9:33:11 AM PDT by kiriath_jearim
The Second Amendment to the Constitution, now under consideration by the U.S. Supreme Court in the District of Columbia v. Heller case, raises a grammatical question as well as a legal question.
The grammatical structure of this one sentence Amendment creates two arguable meanings. Did it created a collective right of the people "to keep and bear arms" as members of a "well regulated militia?" Or did it created and individual right for each American "to keep and bear arms?" The First Amendment affirmatively and clearly states that "Congress shall make no law" respecting religion, or abridging the freedoms of speech, the press, assembly and petition. It seems reasonable to expect that if a similar affirmative and clear intent was to be asserted by the Second Amendment it would have been written in a similar, clear grammatical manner. For example, one would have expected a provision like: Congress shall make no law infringing on the right of the people to keep and bear arms.
But, the Second Amendment was not so worded. Instead it states: "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." This particular wording, according to Professor Clara Park who taught English at Berkshire Community College and Williams College, is significant regarding the grammatical meaning of this amendment. She said that it was an example of what she called "historical grammar" that was used by the Founding Fathers. This type of sentence structure, she said, was called an ablative absolute.
This Latin grammar rule was known and used by educated Americans, like the Founders, to express a concept (e.g., the amendment's first part of a "well regulated militia, being necessary to the security of a free state") grammatically separated from the rest of a sentence but modifying that remaining part of the sentence (e.g., the amendment's second part, "the right of the people to keep and bear arms"). In other words, the people in each state have a collective right "to keep and bear arms" as members of a regulated militia which was necessary for the security of each state.
This interpretation was one of the points made by the attorneys representing the District of Columbia before the Supreme Court. They argued that the Second Amendment was not intended to create an armed American populace, but to allow an armed, regulated state militia. The attorneys for Dick Heller, the plaintiff in the case who carried a fire arm on the job as an employee of a private security company, argued to the contrary. They contended that the refusal by District officials to permit Heller "to keep and bear" that fire arm at home after work under the District's strict gun control law violated his individual right "to keep and bear arms."
The Supreme Court in the 1939 case of U.S. v. Miller, the last time it considered the issue of Second Amendment gun rights, made a connection between a militia and keeping and bearing arms. It decided that the federal National Firearms Act, which among other things prohibited the transport in interstate commerce of shotguns with barrels less than 18 inches in length, did not violate a person's right under the Second Amendment "to keep and bear arms."
The court in its reasoning made the point that it could not on its own say that such a shotgun was an ordinary military fire arm, or that its use could contribute to the common defense. The court further noted that the debate at the constitutional convention, colonial and state history and laws, and commentators — all showed the Founders expectation that a militia when called upon would appear with its members bearing arms of a kind in common use supplied by themselves.
And regarding the other legal factors in this case, the Supreme Court created a rule to interpret the Constitution known as the doctrine of incorporation. The 10 amendments constituting the Bill of Rights were adopted to placate the concerns of the people that the original Constitution did not contain any safeguards for them against the actions of the federal government. For example, the First Amendment states "Congress" shall not make any laws abridging the five freedoms mentioned therein.
Later, when the Fourteenth Amendment was adopted prohibiting states from depriving people of "life, liberty or property, without due process," the Supreme Court decided to incorporate parts of the Bill of Rights through that Amendment against state governments. So far, some five of Bill of Rights amendments, the First (the well known five freedoms), the Fourth (unreasonable searches and seizures), the Fifth (double jeopardy, self-incrimination, etc.), the Sixth (jury trials), and the Eighth (excessive bail, cruel and unusual punishment) have been incorporated. It remains to be seen if the Supreme Court in this case will now incorporate the Second Amendment and apply it to the District of Columbia and the states.
Finally the Court will look at the history of practically unregulated gun ownership under colonial and early federal and state laws before and after the adoption of the Second Amendment, and what is happening today regarding this issue. The court must now consider all of the above factors to decide this controversial case because of the grammar used by the drafters of the Amendment which underscores the importance of the use of grammar in our society.
[Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.]
Be all that as it may, the two “ideas” before the two commas are sentence fragments referring to nothing. The third “idea” — the one about the right to bear arms — is a complete sentence with a subject and a verb and it is not modified in any way by the two sentence fragments that precede it.
That’s the plain English of it, folks.
Methinks the author needs grammar classes.
Robert “Frank” Jakubowicz, a Pittsfield lawyer, doesn’t even know that “firearm” is all one word.
Clearly, most of the above is written in the plural sense, therefore, 'individuals' have no right to free speech, only when they gather into focus groups may they speak freely! The bill of rights can no longer keep you out of jail, just because you think you're 'speaking freely' using your 'free speech' get out of jail free card! Our supremes will show us the way!
the peopleas the state. For the informed....there is no such instance. Her definitions out of whole cloth are a figment of her imagination.
this 21st century linguistic scholar
is trotted out to ‘prove’
a meaning found in a couple phrases in the constitution
and she finds a meaning
that somehow escaped legislatures and judges
both state and federal
until very late in the 20th century.
how is it that the earliest judges, the judges closest in time to the founders, and for a century and a half afterwards, missed what she says the founders placed there?
because it wasn’t there
“This Latin grammar rule was known and used by educated Americans, like the Founders, to express a concept (e.g., the amendment’s first part of a “well regulated militia, being necessary to the security of a free state”) grammatically separated from the rest of a sentence but modifying that remaining part of the sentence (e.g., the amendment’s second part, “the right of the people to keep and bear arms”). “
His Latin is wrong, too. Why cite an example from a singular set? Instead of “e.g.”, he should have used, “i.e.”, id est, that is. Pun intended.
> Typical liberal word gymnastics.
There seems to be an odd movement in the US that is determined to take away your firearms. They seem willing to use whatever casuistry it takes to re-interpret your Second Amendment to make it happen.
This in a time of war, of all things. And during a time when your borders are not secure.
To this foreigner, this makes no sense at all.
A better use of your country’s time would be a grammatical re-write of your Second Amendment to remove all doubt.
The main thing to remember about guns and grammar is that a pistol has a magazine, not a clip. ;-)
The meaning is clear, there are massive amounts of discussion from the founding fathers that support the individual right to keep and bear arms.
This has been the understanding for 230 some odd years. What power have we given to the courts to reinterpret this sentence into a meaning that has clearly not been the understanding of the citizens for over 200 years?
None.
Her definitions are presupposed by intent. The intentions of the anti-gun lobby are ostensibly to reduce crime. (Yes, I know a faction here believe the motivation is to reduce individual power in relation to the state.) So, in order to achieve that goal, the plain meaning of the 2A must be corrupted.
If we ever get to the point where the 1A becomes a barrier to achieving a "more perfect socialist state", don't be surprised that terms like "assembly", et al will be construed as defining a collective right.
By these actions will our enemies be know.
Hmmmm...looking at the First Amendment, it declares “Congress”
shall make no law...
It does not specifically prohibit the states from making laws on religion, speech, press, et al. Maybe those are collective rights too, subject to regulation by states.
“The Islamic State of Massachusetts” has a nice ring, doesn’t it?
You don’t have to hit Enter twice after each line. The forum software will automatically wrap the lines for you.
It’s amazing that they can be such grammatical nit-pickers and completely ignore the semantic boulders that refute their argument. To understand what a “well-regulated militia” is we must understand what those terms meant to the late 18th Century mind. “Militia” did not then refer to an organized military force, but to the entire free male population between the ages of 16-18 and 45-55 (depending on whose comments you read—it wasn’t a sharply defined age cohort). “Well-regulated” had nothing to do with government control of anything. Instead, it was understood to mean well versed in the use of and capable of using effectively whatever was well-regulated. This is also clear from many commentaries of the day. So a “well-regulated militia” meant a male populace trained and experienced in the use of firearms. This isn’t even arguable. The writers of the Constitution said so, in very plain terms.
The Moon being made of green cheese and necessary for light at night, the right of the people to keep and bear Arms shall not be infringed
That would be very difficult to do. The existing amendment is very clear in meaning to anyone who isn't delusional or irredeemably ignorant (being stated in more absolute terms than the first, which instead of merely prohibiting Congress from passing laws asserts that the right "shall not be infringed").
The founders even added the reason for the absolute necessity (if you lack the tools to form a militia, any freedom you have isn't secure), which they didn't bother to clarify in the other amendments.
If the text actually did state what the author desires ("Congress shall pass no law") instead of the more strict actual phrasing ("shall not be infringed"), the result would almost certainly be people arguing that "Congress can't do it, but there is no restriction from the President issuing an executive order", or some similar mischief.
The sad truth is that there is no English text that could be employed that would not be distorted by the depraved miscreants who oppose liberty. If it simply said "the right to keep and bear arms shall not be infringed", they would assert that "keep" means in a government armory and "bear" means in the service of the state. No doubt within a decade schools would teach that the amendment was passed to guarantee the right of homosexuals to serve in the military.
Those of us who have taken Latin are well familiar with the ablative absolute. Modern English has such expressions as well (”As you are in the kitchen, could you get me a beer?”) There is nothing “historical” about it, which is why the translation of the Latin ablative absolute is usually straight-forward.
Eighteenth century English was no more an inflected language than modern English. Since there is no ablative case in English, it is erroneous to call a word or phrase “ablative” except by analogy. It would be as if I stated that some passage must be treated differently, as the author is using the historical dative construct. That would be a fancy way of stating that there is an indirect object in the construction.
Justice Thomas knows Latin better than anyone else in the room, and he will not be fooled by such a disingenuous argument.
To me, the meaning of “the right of the people to keep and bear arms shall not be infringed” is very plain and beyond reasonable argument. It is a complete sentence with a subject and a verb.
It would require a bizarre casuistry — like what you have suggested — to twist and wrest these simple words to mean anything other than what it says at face value.
Where this sentence isn’t helped is by the first bits that precede it: they are sentence fragments, each of them, separated by a comma. Neither in any way point to the sentence no, not even as a reasonable reason for having the right to bear arms.
Dropping the first comma, replacing the word “being” with “is”, replacing the second comma with a semicolon and inserting the word “therefore” would remove all ambiguity and provide the same interpretation as the one you have suggested (which I agree with).
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