Now that the U.S. Supreme Court has taken on District of Columbia v. Heller, commas and clauses are in the news. Adam Freedman explains why ("Clause and effect", New York Times, 12/16/2007):
The outcome of the case is difficult to handicap, mainly because so little is known about the justices’ views on the lethal device at the center of the controversy: the comma. ... The official version of the Second Amendment has three of the little blighters:
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.
Freedman observes that "there could scarcely be a worse place to search for the framers’ original intent than their use of commas", because "in the 18th century, punctuation marks were as common as medicinal leeches and just about as scientific". Instead, he argues,
The best way to make sense of the Second Amendment is to take away all the commas (which, I know, means that only outlaws will have commas). Without the distracting commas, one can focus on the grammar of the sentence.
Three years ago in Language Log, Geoff Pullum applied the OICTIQ principle to those same second-amendment commas, taking the distracting first and third commas out of play and leaving the second one intact, consistent with modern punctuation standards. And in passing, Geoff also offered a brief analysis of the crucial grammatical issue:
The sentence begins with what is traditionally known as an absolutive clausal adjunct — a gerund-participial clause functioning as an adjunct in clause structure. It is understood as if it began with since or because or in view of the fact that (notice that Our situation being hopeless, we surrendered means "Since our situation was hopeless, we surrendered).
Freedman suggests that the decision that the Supreme Court is reviewing is based on a different grammatical analysis:
The decision invalidating the district’s gun ban, written by Judge Laurence H. Silberman of the United States Court of Appeals for the District of Columbia Circuit, cites the second comma (the one after “state”) as proof that the Second Amendment does not merely protect the “collective” right of states to maintain their militias, but endows each citizen with an “individual” right to carry a gun, regardless of membership in the local militia.
How does a mere comma do that? According to the court, the second comma divides the amendment into two clauses: one “prefatory” and the other “operative.” On this reading, the bit about a well-regulated militia is just preliminary throat clearing; the framers don’t really get down to business until they start talking about “the right of the people ... shall not be infringed.”
Freedman associates this analysis with work by Nelson Lund:
Nelson Lund, a professor of law at George Mason University, argues that everything before the second comma is an “absolute phrase” and, therefore, does not modify anything in the main clause. Professor Lund states that the Second Amendment “has exactly the same meaning that it would have if the preamble had been omitted.”
And Freedman strongly disagrees:
The best way to make sense of the Second Amendment is to take away all the commas (which, I know, means that only outlaws will have commas). Without the distracting commas, one can focus on the grammar of the sentence. Professor Lund is correct that the clause about a well-regulated militia is “absolute,” but only in the sense that it is grammatically independent of the main clause, not that it is logically unrelated. To the contrary, absolute clauses typically provide a causal or temporal context for the main clause.
The founders — most of whom were classically educated — would have recognized this rhetorical device as the “ablative absolute” of Latin prose. To take an example from Horace likely to have been familiar to them: “Caesar, being in command of the earth, I fear neither civil war nor death by violence” (ego nec tumultum nec mori per vim metuam, tenente Caesare terras). The main clause flows logically from the absolute clause: “Because Caesar commands the earth, I fear neither civil war nor death by violence.”
Likewise, when the justices finish diagramming the Second Amendment, they should end up with something that expresses a causal link, like: “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.” In other words, the amendment is really about protecting militias, notwithstanding the originalist arguments to the contrary.
Prof. Lund's analysis seems to be developed at greatest length in "A Primer on the Constitutional Right to Keep and Bear Arms", (Virginia Institute for Public Policy, 2002). But in this document, at least, Lund offers essentially the same grammatical analysis as Freedman, though with a different rhetorical emphasis:
... the grammar of the Second Amendment emphasizes the indefiniteness of the relation between the introductory participial phrase and the main clause. If you parse the Amendment, it quickly becomes obvious that the first half of the sentence is an absolute phrase (or ablative absolute) that does not modify or limit any word in the main clause. The usual function of absolute phrases is to convey information about the circumstances surrounding the statement in the main clause, such as its cause. For example: "The teacher being ill, class was cancelled."
Although Lund's grammatical analysis is the same as Freedman's, his conclusion is different:
The importance of this can be illustrated with a simple example. Suppose the Constitution provided:
A well educated Electorate, being necessary to self-governance in a free State, the right of the people to keep and read Books, shall not be infringed.
This provision, which is grammatically identical to the Second Amendment, obviously means the following: because a well educated electorate is necessary to the health of a free state, the right of the people to keep and read books shall not be infringed. The sentence does not say, imply, or even suggest that only registered voters have a right to books. Nor does the sentence say, imply, or even suggest that the right to books may be exercised only by state employees. Nor does the lack of identity between the electorate and the people create some kind of grammatical or linguistic tension within the sentence. It is perfectly reasonable for a constitution to give everyone a right to books as a means of fostering a well educated electorate. The goal might or might not be reached, and it could have been pursued by numerous other means. The creation of a general individual right, moreover, would certainly have other effects besides its impact on the electorate's educational level. And lots of legitimate questions could be raised about the scope of the right to books. But none of this offers the slightest reason to be mystified by the basic meaning of the sentence.
In fact, Lund, Pullum and Freedman are all in agreement about the grammar of the crucial sentence, and even about some aspects of its interpretation. All three see the first clause as an absolute phrase (Lund) or an absolutive clausal adjunct (Pullum) or an absolute clause (Freedman). Both Lund and Freedman cite the relationship to the rhetorical effect of the Latin ablative absolute. All three indicate that the meaning of the participial first clause is similar to that of a tensed clause introduced by because.
Could anyone possibly disagree with this analysis? Apparently so -- Freedman suggests that "a group of anti-gun academics" once argued that the subject of the main clause is actually "a well-regulated militia":
In a 2001 Fifth Circuit case, a group of anti-gun academics submitted an amicus curiae (friend of the court) brief arguing that the “unusual” commas of the Second Amendment support the collective rights interpretation. According to these amici, the founders’ use of commas reveals that what they really meant to say was “a well-regulated militia ... shall not be infringed.”
This would be an extraordinary example of analytic incompetence, if true, worthy of its own Language Log post. But given Freedman's somewhat unfair representation of Lund's argument, it needs to be checked. Unfortunately, his description of the case and the brief is too vague to allow me to find it during what little remains of my breakfast hour. If you can provide a more specific citation, please tell me.
Aside from this bizarre possibility, all parties to the argument seem to agree about the syntax and basic semantics of the amendment. Everyone agrees that the crucial sentence might as well be recast as
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.
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.) The commas certainly don't decide this. And as far as I can tell, the syntax doesn't decide it either.
[Update -- a footnote in this brief does seem to make the argument that Freedman cites, more or less, via the rather vague assertion that
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 author's preferred grammatical analysis is not clear to me, and I don't have time for further investigation this morning. In any case, this document is dated 1999, so presumably Freedman had something else in mind.]
[Jon Weinberg writes:
The brief you identified in your update is indeed the one; it was filed in 1999 and signed by some of the biggest names in the Con Law teaching biz, in connection with a case that the Fifth Circuit didn't end up deciding until 2001. Be aware that the footnote you found continues onto the next page, so that the rest of it reads:
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.
It should be clear from looking at the brief that the authors' focus wasn't grammatical (orthographical?) or linguistic analysis: the reasoning in the footnote looks like a stray thought, not necessarily well-developed, that was in a footnote precisely because the authors didn't think it was powerful enough to include in text. The main thrust of the brief is an argument from historical evidence (like the drafting history of the amendment) that the folks who drafted and enacted the second amendment didn't in fact understand it to convey a right to bear arms except for the purpose of service in state-run militias.
(Jon is certainly right that the focus of the brief is historical rather than grammatical. But the footnote is indeed making a grammatical claim along the lines that Freedman suggested, namely that "a well-regulated militia" is part of the subject of "shall not be infringed".)
Several others have sent useful information as well, which alas I won't have time to summarize until this evening.]
Posted by Mark Liberman at December 17, 2007 06:39 AM