The Grammar of the 2nd Amendment

by Steven Krulick

SK@Krulick.com
PO Box 467, Ellenville NY 12428
© 2005, 2008, Kryolux Inc

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A repeated claim of the hoplophile flaks, when they even BOTHER to cite the whole of the 2nd 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." -- is that the first half is optional, subordinate, explanatory, extraneous, etc. They point to it as if it were a case study in a modern grammar lesson, and try to minimize, if not vaporize, the essential relationship of the second half with the militia reference of the first half. Now, even though this is NOT merely about the grammar...

Because there ARE three commas, four clauses/phrases, it could just as clearly be written: "A well regulated militia, ... , shall not be infringed."

Further to this grammatical analysis, from http://www.potowmack.org/yass.html:

At the same time the congressional drafters switched the order of the clauses, they inserted two unusual commas that further emphasize the framersí intention to prevent federal interference with the militia. Under ordinary usage, the first and third commas in the Amendment are unnecessary. If these commas had not been inserted, it would be possible to understand the Well Regulated Militia Clause as simply explaining the rationale for the Bear Arms Clause (the Amendment would then read: "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."). But the commas are in fact in the text proposed by Congress and ratified by the states, and they prevent this reading. The first unusual comma -- between "Militia" and "being" -- forces the reader to search for a verb for which "Militia" is the subject. That verb does not appear until "shall not be infringed" near the end of the Amendment.

The second unusual comma -- between "Arms" and "shall" -- sets off the verb phrase "shall not be infringed" from the preceding language; it suggests that the subject for this verb phrase is not simply "the right of the people to keep and bear Arms." The grammatical effect of these two unusual commas is to link "A well regulated Militia" to "shall not be infringed" to emphasize, in other words, that the goal of the Amendment is to protect the militia against federal interference. The Constitution was drafted with great care, and (unlike much legal writing from the Founding period) its use of punctuation generally conforms to modern conventions, suggesting that the commas in the Second Amendment are not haphazard but rather deserve scrupulous attention.

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Even further, to this, http://www.saf.org/LawReviews/UvillerAndMerkelChicago.htm:

"In the instance of the Second Amendment, the unadorned linguistics are themselves informative. The right to arms is declared by the verbs, "keep and bear," a phrase selected in preference to alternatives such as "have," "own," "carry," or "possess." Scholars have informed us that the chosen terms have a distinctly military connotation, especially the verb "to bear," which would not have been used in the eighteenth century -- as it would not be today -- to connote purely private use of arms. You do not bear a shotgun to go duck hunting. But we need not rely entirely on that language in the announcement of the right in the main clause. We have, as we have emphasized throughout this paper, a clear and unequivocal expression of the linguistic context of the primary right in the introductory phrase that accompanies it. The mere presence of the militia phrase sharing a single sentence with the arms clause has, as we have argued throughout, inescapable significance.

In addition, the way the two parts of the provision are expressed amplifies the significance of their conjunction. The critical introductory language does not aver the relationship of the militia to a free state in a simple declarative clause -- a form that might have established two severable propositions: the importance of a militia and the right to arms. Rather, in the first part, the verbal vehicle elected for the verb "to be" is a participle, yielding a phrase known to grammarians as an "ablative absolute construction." This construction characterizes a phrase modifying the substance of the main clause as an adjective would modify a noun, often expressing the condition or circumstances of the assertion of the main clause.

It creates an indissoluble link between the two parts of the sentence and grammatically subjects the right to arms to the rule of the militia modifier. As a simple matter of grammar, the participle modifier is essential for the declarative clause to occur. Had the two statements - regarding the importance of a militia and the right to arms - not been linked in this manner, it might have been possible to argue that even if the first declaration ceases to be true, the second is undiminished. And it seems to us significant that the drafters chose the structure they did. The linguistics were certainly understood to the framing generation (who were more likely to know the niceties of Latinate grammar than we are). Taken together then -- as they must be -- these two components of the provision grant the people such right to arms as will preserve or empower the militia to assure the security of the community."

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Here, thereís even THIS from a PRO-GUN site!: http://patriot.net/~tlj/xplaindp.htm

The Second Amendment is split by commas into four phrases, the last of which is a verbal phrase starting with the verb "shall":

"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 first two phrases are related to each other. The fact that the third phrase is separated from the verbal phrase by a comma indicates that the verbal phrase has more than the third phrase as its subject. The abbreviated grammatical construction actually renders the meaning of the Second Amendment as: "Neither a well regulated Militia, being necessary to the security of a free state, nor the right of the people to keep and bear Arms shall be infringed."

Note also that the term "arms" then and now implies military weapons.

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The 2nd Amen is unique... the ONLY BoR amendment that SPELLS OUT the reason for its existence!

And that is why one canít ignore it! In LAW, specifically in Constitutional interpretation, there ARE NO subordinate clauses! Chief Justice John Marshall, in Marbury v. Madison, stated that there IS NO "surplusage" in the Constitution! This "debate" is ONLY being promulgated by those who CANíT or WONíT accept that the 2nd Amen MUST be read and understood IN ITS ENTIRETY!

Had they wanted to be more broad and inclusive, the framers could have "clearly" written something as simple as "The right of individuals to own and carry guns shall not be infringed." That they didnít write that, in itself speaks volumes. The first two phrases are not window dressing, or "subordinate" clauses, in the legal sense, rather than the grammatical sense. IF they were not writing a narrowly focussed MILITIA AMENDMENT, they could have simply left OUT the first half!

Yet even so, based on what Madison MEANT by "bear arms," even the ABSENCE of the first half leaves no doubt that it is strictly a militia amendment!:

"Main" clause is a grammatical, NOT a legal term; there ARE NO subordinate "clauses" in Constitutional interpretation... the law MUST be interpreted in its entirety. The ENTIRE 2nd Amen is rightly seen as a militia amendment, not a gun amendment, particularly when the phrase "bear arms" is properly understood as MEANING "serve as soldier," or "render military service" which is the RIGHT the particular individuals who qualify to serve have -- to serve in the STATE-RUN militias -- and it is THAT one of the rights the feds canít infringe upon, along with the others.

Though the commas DO make a difference in structural interpretation, the mere existence of the well-regulated-militia and security-of-a-free-state phrases show the focus and purpose of the 2nd Amen constitutionally, as there is NO surplusage in the Constitution.

The functional sentence IS and ALWAYS WAS "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 its entirety.

The argument does not hang exclusively on the number of commas, but on the presence of the militia clause itself, as the courts have confirmed, and on the meaning of the term "bear arms" as Madisonís draft confirms.

First, the comma between "arms" and "shall" makes the second half of the Amen unable to stand alone; it is necessary to go back to MILITIA to find the subject for "shall not be infringed"!

Second, this isnít a grammatical exercise, but LAW!

The 2nd Amen is NOT a piece of "literature" that can be analyzed in a literary vacuum; it is a legal and historical document, written by politically-minded 18th Century members of an American "aristocracy" with particular political and legal purposes in mind -- NOT to craft some piece of literature fit solely for grammatical parsing.

There is NO SURPLUSAGE in the Constitution, as Justice Marshall said. If itís there, it MEANS something!

As the 2nd Amen is the ONLY amendment in the BoR that spells out the PRECISE reason for itís being, one canít simply ignore it or treat it as optional. This isnít a grammatical exercise, but "a constitution we are expounding!" (Marshall)