The New Yorker finds the U.S. Constitution ungrammatical

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Jeffrey Toobin, "So you think you know the second amendment?", The New Yorker 12/18/2012:

The text of the amendment is divided into two clauses and is, as a whole, ungrammatical: “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.”

Coming from The New Yorker's house legal analyst, this is shocking.

John McIntyre explains ("Give up on the Second Amendment's grammar", The Baltimore Sun 12/19/2012):

The New Yorker may not be the best place to go for instruction on grammar and usage. The Founders (it's a little vexing to have to keep explaining this) loved Latinate constructions, one of which is the absolute, a phrase modifying a whole clause, often consisting of a noun and a participle. The Second Amendment opens with just such an absolute: "A well regulated militia being necessary to the security of a free state." Modifying the succeeding clause, "the right of the people to keep and bear arms shall not be infringed," it puts the right in the context of the establishment and operation of a militia.

The grammar and punctuation of the second amendment are discussed at greater length in "Once is cool, twice is queer", 11/27/2004, and "The right to keep and bear adjuncts", 12/17/2007. The second post notes that the obvious grammatical analysis of the second amendment is part of the standard legal discussion of its meaning, quoting Nelson Lund, "A Primer on the Constitutional Right to Keep and Bear Arms", (Virginia Institute for Public Policy, 2002):

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."

As Prof. Lund's example indicates, absolute constructions remain part of the grammar of standard written English. Some particular instances remain common enough to be considered cliches: "this being the case", "other things being equal", "all things considered", "that said". It's New-Yorker normal that Jeffrey Toobin is ignorant of elementary grammatical analysis, but it's surprising that his ear for ordinary English usage is so bad, and that he's apparently unaware of the standard legal discussion of the constitutional issue on which he's providing an allegedly expert opinion.

For more on the language of the second amendment, see "What did it mean to 'bear arms' in 1791?", 6/18/2008.

Update — Note that Toobin's citation of the text omits two commas that are present in the official transcript 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.

These commas are discussed at length in one of the posts linked above, which observes that commas between subject and predicate were common in the 18th century, though they are outside the norms of contemporary standard punctuation. Since Toobin doesn't mention them, and omits them from his citation, we can assume that the commas are not the locus of his reason for concluding that the amendment "is, as a whole, ungrammatical".

So why DOES Toobin think that the amendment "is, on the whole, ungrammatical"? He doesn't say. I assume that he believes that absolute constructions are Not Allowed —  presumably by a vague analogy to "dangling modifiers", though the two constructions are clearly different.

Update #2 — Eugene Volokh, "The Commonplace Second Amendment", 73 NYU L. Rev. 793 (1998), observes that "Many contemporaneous state constitutional provisions are structured similarly". He means that they contain "a statement of purpose" preparatory to stating a right or other point of law.

In many of his examples, the "statement of purpose" is a separate tensed clause, e.g. "The Liberty of the Press is essential to the security of freedom in a state; it ought, therefore, to be inviolably preserved", or "The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint". But he cites other cases where the "statement of purpose" is expressed as a NP+ParticipialPhrase adjunct,e .g. "The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty…", or " Economy being a most essential virtue in all states, especially in a young one; no pension shall be granted, but in consideration of actual services…"

There are quite a few currently-common idioms with the same (NP+Participle) structure, e.g. "That being said", or "Other things being equal" — these are common even in the pages of the New Yorker.

(link) That being said, someone recently told me that I could have written a story about killing babies and it would probably offend fewer people.
(link) A law degree is probably a helpful credential, all other things being equal, for a trial judge or an appeals-court judge.

And less cliched examples also occur, though perhaps not as commonly today as in the 18th century. The searching features of the COCA interface make it easy to find examples:

From The Atlantic: This being Silicon Valley, however, Obama was quickly embraced.
From Art Bulletin: The prints having been acquired, she then wanted him to have the famous antiquarian Ridolfino Venuti arrange them…
From Skiing magazine: A beer being a terrible thing to waste, I spent a good 45 minutes with one right then and there.
From the Raritan Review: A badgeless MLA being inconceivable (since much of the representational foundation would then collapse, and even drifting would become impossible since there would be no structure from which such an activity could veer), I had to get a badge in order to fit in.
From the Smithsonian magazine: No world-championship event being scheduled this year, this smaller get-together provided a good glimpse of what harmonica people are like, and what they like to do.
From the Christian Science Monitor: Our lesson having been learned back at the hotel, we slipped him $3 and asked him to try harder.

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57 Comments »

  1. Jason said,

    December 18, 2012 @ 7:30 pm

    Two issues here:

    First of all, if descriptive linguistics is about non-judgementally discovering the principles of language use from actual usage, how does this approach apply to examples of actual usage of the word "ungrammatical?"

    What we find is that people apply the word "ungrammatical" to describe a whole range of phenomena found in bad writing run on sentences, like, unnecessary hedging, informal language in bloody formal contexts, vague wording about stuff, and other things like such as. Dangling adjuncts, also.

    I think Toobin is simply articulating his belief that the second amendment is prefixed with a rather dangerously dangling adjunct whose implications for the main clause are not at all clear. While a linguist might decry this usage, the referent of "ungrammatical" clearly extends, in the minds of Toobin, to such things. Perhaps we should relax and accept that the ordinary, non-technical meaning of "ungrammatical" extends to things that are just in some way semantically anomolous or poorly expressed.

    Surely the methodology of descriptive linguistics must respect Toobin's priveliges as a native speaker and merely attempt to describe the context of use, not prescribe some normative standard of "syntacticality" based on the linguistists nerdview of same? I mean, what basis do you have for describing this as an error of application as opposed to a legitimate difference as to the range of denotation of a word in a nontechnical context?

    Second:

    Without wanting to wade into the briar patch, I feel that constitutional interpretation is more like Talmudic scholarship than linguistic scholarship, ie, it's less about the best way to interpret a text linguistically, than it is about discovering the possibilities and limits of interpretation and selecting one that meets one's own theological agenda. If so, the "correct" interpretation of "a well regulated militia…" is pretty much meaningless, the issue is, who will be doing the construeing and to what ends?

    [(myl) See below for why your arguments about the linguistic analysis involved are confused and silly. As for the question of constitutional interpretation, the linguistic analysis of the amendment's clausal structure is relevant but not determinative. The text of the 2nd amendment clearly consists of an initial NP+Participle adjunct of the type sometimes called "absolute", followed by a tensed clause. The meaning of such adjuncts can be quite varied, as discussed here, and so this analysis is consistent with quite different conclusions about how the initial clause affects the interpretation of the clause "the right of the people to keep and bear arms, shall not be infringed".]

  2. Giles said,

    December 18, 2012 @ 7:31 pm

    Interesting. I noticed on the TV news the other night that the Amendment was misquoted on-screen as “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” — NB the extra comma after "militia". I wonder if that was because the person doing the graphics for the news show also misunderstood the construction and tried to correct it? If so, I'm not quite sure what he/she was trying to correct it to.

  3. Jason said,

    December 18, 2012 @ 7:35 pm

    I posted and missed the last sentence: what I mean to say is, I don't think there's any methodologically sound way of discovering whether "a well regulated militia" is an "ablative absolute" or not. Such questions are ultimately theological, not linguistic, and will be determined, as they always have, by power relations and perhaps by where we want to go as a society.

    [(myl) With respect, your argument is both confused and silly.

    Your argument is confused because:
    (1) The phrase at issue is not "a well regulated militia" but rather "a well regulated militia being being necessary to the security of a free state".
    (2) This phrase could not possibly be an "ablative absolute", because English has no ablative case. Rather, the phrase is clearly an adjunct of the form "NP+Participle". These are sometimes called "absolute constructions", but the issue in any case is not one of terminology but of the norms of formal English prose, in which such constructions have been common for hundreds of years, and continue in regular use today.

    Your argument is silly because:
    (1) There is no sense in which the discussion is "theological". The question is what the norms of standard English prose are, and whether the text of the 2nd amendment is in violation of them or not. This is an empirical question that can be addressed by looking at facts.
    (2) "Power relations" may have been involved in determining the emergent properties of standard written English, but they are not involved in assessing what those norms are, nor how they apply to the text under discussion.
    (3) "Where we want to go as a society" is an interesting question, but it's completely irrelevant to the issue of what the norms of standard English prose are, and whether the text in question violates them.

    The answer to the question under discussion is clear. There are two extra commas (which Toobin omits), used to separate subjects from predicates in a way that was normal for the late 18th century but is a violation of contemporary punctuation practices. This irrelevant cosmetic issue aside, the text of the 2nd amendment consists of an initial "absolute" clause of the form NP+Participle, followed by a tensed clause. This structure was and remains fully within the norms of standard English prose -- to call it "ungrammatical" is ignorant at best.

    You write (in your earlier comment) that "Surely the methodology of descriptive linguistics must respect Toobin's priveliges [sic] as a native speaker and merely attempt to describe the context of use, not prescribe some normative standard of "syntacticality" based on the linguistists nerdview of same?"

    Again, this is confused and silly. Toobin is entitled to his grammaticality judgments, but that's not what's at issue here. He didn't say "and is, at least in my opinion, ungrammatical" — he made a general claim about the English language, not about his individual psychological reactions. And the nature of the English language is not determined by what Toobin thinks it should be, nor by what linguists think it should be, but by what users of the language say and write. In this case, we're interested in the norms of the standard written language, and again, those can be determined empirically by examination of the facts.]

  4. Chris C. said,

    December 18, 2012 @ 7:53 pm

    Some years ago I read an article in a right-wing publication where the author asserted with an apparently straight face that "well-regulated" meant "well-equipped" in the 18th century. While that may make the question of the first clause's grammatical function more or less moot, and the constitutional question much easier to argue for one side (in that the amendment can no longer necessarily be said to contemplate organized militias) I've had reason to question the philological soundness of this assertion.

  5. Bob Moore said,

    December 18, 2012 @ 8:02 pm

    @Giles: The extra comma is in fact in the actual text of the second amendment. As has previously been noted on Language Log, eighteenth century comma usage can appear odd to modern readers.

  6. Vicki said,

    December 18, 2012 @ 8:06 pm

    The error, if there is one, isn't the comma after militia–it's the lack of one after "arms." As Bob Moore notes, comma usage has changed over time: even late nineteenth century texts look over-comma'd to the modern American eye.

  7. Giles said,

    December 18, 2012 @ 9:19 pm

    That is interesting! Thanks for the correction — I should have gone to the source. I've only read a small amount of stuff from the period (mostly Defoe) and hadn't noticed anything quite like that. Is there a simple explanation as to why they'd put a comma there?

    As an aside, and relatedly, I think the reason it looked so much like a modern hypercorrection to me is that one imagines someone trying to force the sentence into the mould of "A well regulated militia, being necessary to the security of a free state, is a jolly good thing."

  8. Jeffrey Toobin said,

    December 18, 2012 @ 10:08 pm

    Hi all. This is fascinating stuff, and I stand corrected — sort of. To my modern ear (and I suppose that is part of the problem), the militia clause sounds like a misplaced modifier. I still am unclear what it is modifying. But this was a very educational exchange, and I will no longer refer to the second amendment as ungrammatical. Confusing — yes; controversial — yes. But not ungrammatical.

    [(myl) Welcome, and thanks for being so gracious about this long reaction to an off-hand comment. ]

  9. Chris C. said,

    December 18, 2012 @ 10:24 pm

    It's not hard to find other examples. Consider the famous opening of Pride and Prejudice: "It is a truth universally acknowledged, that a single man in possession of a good fortune, must be in want of a wife." Neither comma is called for by modern conventions.

  10. D.O. said,

    December 19, 2012 @ 1:13 am

    Legislative language in general tends to be somewhat awkward. Part of it stems from the desire to reference some previous legislation by copying exact collocations even if they sound sort of weird in new circumstances, or so I've heard. But insistence to preface any new law with interminable WHEREASes just looks little silly.

  11. Aaron Toivo said,

    December 19, 2012 @ 1:24 am

    Mr. Toobin, I would suggest that the militia clause modifies the entire main clause that follows. I would take the following reformulation to have exactly equivalent meaning and purpose:
    Because a well regulated militia is necessary to the security of a free state, …

  12. Bill Walderman said,

    December 19, 2012 @ 9:04 am

    @ D.O. This is off-topic, but . . .

    "insistence to preface any new law with interminable WHEREASes just looks little silly."

    The "whereas" clauses are generally not merely decorative. They typically (1) state a purpose and justification for the legislation within the framework of constitutional limitations on legislative power in the event the legislation is challenged in court, and (2) provide a context for the legislation that can serve as a basis for interpretation by courts should litigation over the meaning of the substantive provisions arise.

  13. Bill Walderman said,

    December 19, 2012 @ 9:09 am

    Actually, my previous comment is not entirely off-topic. The absolutive construction at the beginning of the Second Amendment and similar absolutive constructions at the beginning of other constitutional provisions serve the same function as a "whereas" clause at the beginning of contemporary legislation: to explain why the provision is necessary and appropriate, and to provide context for interpretation.

  14. Cameron said,

    December 19, 2012 @ 9:47 am

    I suspect that people who judge absolute constructions as "ungrammatical" do so because they have been trained since childhood to fear "dangling participles", and the NP+participle construction can look perilously unattached.

  15. Jeff Carney said,

    December 19, 2012 @ 11:31 am

    @Cameron

    You are probably correct. But that is the irony as well. It takes a pretty bright even to recognize a dangling participle; with a few minutes additional work, that same student could easily recognize the "absolute" as something similar but different. For the great majority of students, instruction about participles is completely lost.

  16. Ted said,

    December 19, 2012 @ 11:47 am

    This issue isn't limited to constitutions and legislation. Contracts (in common-law jurisdictions, anyway) are traditionally structured with prefaces consisting of a series of recitals structured as a single long sentence, in a form more or less like the following (simplified) example:

    WHEREAS, Landlord and Tenant entered into the Lease on July 15, 2009;

    WHEREAS, the Lease was amended on January 19, 2010, to increase the amount of space over which Tenant has an option; and

    WHEREAS, Landlord and Tenant desire to amend the Lease again to reflect their agreement with respect to reserved parking spaces;

    NOW, THEREFORE, Landlord and Tenant hereby agree as follows:

    Perhaps the apotheosis of this style is found in public international law documents, which often consist entirely of a single run-on sentence. (A typical example is the UN Security Council resolution on children and armed conflict, which can be found here.)

    This drafting style seems to have gone pretty thoroughly out of fashion in the UK and the antipodes, but it remains alive and well in the US.

  17. Ted said,

    December 19, 2012 @ 11:51 am

    Sorry about the bad link. That and other resolutions can be accessed from this page. (Hope this link works.)

  18. J.W. Brewer said,

    December 19, 2012 @ 12:27 pm

    Another point is that the norms of standard written English (bracketing the question of legalese as a distinct variety) do change over time. For example, the Constitution uses the spelling "chuse" instead of "choose." That makes it read a bit oddly to the modern eye, but it's provincial for us to impose our own later-standardized norms on an earlier text (and for whatever reasons we have in most instances not decided to just silently modernize the orthography, as we do in e.g. most editions of Shakespeare). Even if the syntactic structure of the Second Amendment had become so archaic as to be ungrammatical in 21st century English (which as shown above is not the case), the resultant problem would be a problem for the reader, not a fault of the author(s).

  19. Bloix said,

    December 19, 2012 @ 6:27 pm

    1) The Constitution itself is full of commas between subject and predicate. One doesn't need to go to Jane Austen for examples. E.g.,

    The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; …

    [N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

    No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; …

    Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

    2) The problem with the 2nd Amendment is not grammatical. The problem is that the Amendment doesn't make sense. If the right to bear arms "shall not be infringed," how can a state "regulate" it? The problem is exacerbated by the Amendment's use of the – wait for it – passive voice. The right "shall not be infringed." By whom?

    And there, in my humble opinion, is where the answer to the conundrum lies. When the Bill of Rights was adopted, it was conceived as applying only to the federal government, and was not intended to restrict the powers of the states. So, for example, many states had established churches well into the 19th century, in spite of the First Amendment's ban on "an establishment of religion" (New York, Maryland, Virginia, N Carolina, S. Carolina: Anglican; Massachusetts, Connecticut, New Hampshire: Congregational.)

    In fact, the Bill of Rights as a whole has never been held to apply to the states. Beginning in the 1930's, , the Supreme Court began to consider each clause of each Amendment separately before deciding whether to "incorporate" a right into the due process clause of the Fourteenth Amendment, and thereby to extend its reach to the States. The rights granted by the First Amendment have been "incorporated" in this fashion. The Second Amendment had not been until the Supreme Court's 2010 decision in MacDonald v Chicago, which in my humble opinion is wrongly decided.

    In my opinion, the Second Amendment means only that the right of the people to bear arms shall not be infringed by the federal government, but the States may "infringe" it, by regulating it, as much as they please. Federal regulation is limited to things that do not 'infringe' – that is, cross over – the boundaries of the right, which are certainly not infinite. State regulation, on the other hand, can do whatever it wants.

    That's the only way I can read the Amendment so that it makes sense. And because the Amendment contemplates that States may "regulate" the bearing of arms, the Supreme Court's decision in MacDonald that the right applies to the States makes the Amendment nonsensical. Grammatical, but self-contradictory.

  20. Marja Erwin said,

    December 19, 2012 @ 6:39 pm

    Has English ever had an ablative? If we are going to define these by case, which seems unhelpful, shouldn't they be dative absolutes?

  21. Nelson said,

    December 19, 2012 @ 7:24 pm

    Marja, 'English' as we usually mean it has never had an ablative; there was an ablative long ago in Proto-Indo-European, but this was lost by the time of Proto-Germanic.

    But the clauses should simply be called 'absolutives', since English doesn't have a dative either. It would be a bit pointless to try and name this feature after a case in a language with a case system as sparse as English's.

  22. Catherine said,

    December 19, 2012 @ 7:42 pm

    I am nowhere near as intelligent as any of you who've commented thus far, so it's in a humble spirit that I ask the following: Wouldn't the degree of ambiguity have been lessened dramatically with (simply!) the inclusion of the word 'therein'?

    “A well regulated militia being necessary to the security of a free state, the right of the people [therein] to keep and bear arms shall not be infringed.”

    (I'm thinking most would agree, even centuries later, that a 'therein' so placed would be modifying 'militia' and not 'free state', secure or otherwise.)

    If I can't wish that they'd put the whole thing together differently, or seen even more miraculously clearly into the future as they did, can I at least wish for a 'therein'?

  23. marie-lucie said,

    December 19, 2012 @ 7:52 pm

    Besides the linguistic difficulties, relatively early texts such as the Bill of Rights and the Constitution need to be understood not only in what they were for but what they were against, in the context of the times.

    Next to the structure of the sentence, the abundance of commas, and the meaning of "bear arms", there is also a potential ambiguity in "the people". I think that given the historical context, "the people" here is not a plural but a collective noun, as in French "le peuple" and Latin "populus": the mass of the people, as opposed to the government or an elite of some kind. In Europe at the time, in still feudal societies, members of the nobility were not only allowed but required to "keep and bear arms", and often to levy and equip their own armies. The French contingent which came to the help of the American revolutionaries was such a private army, raised by the Marquis de La Fayette, a wealthy nobleman. The common people of Europe (neither noble nor members of the clergy) had no right to weapons (they were also usually barred from hunting), unless they became soldiers in the service of the nobility or the monarch. Since in America there would be no privileged class, members of "the people" would be guaranteed the right to "keep and bear arms" themselves, not only to hunt (as individuals) but (as organized groups) to form militias, probably under elected leaders. The result would be that, as in (very) ancient Rome, citizens would be able to have their own weapons in case the state or the country needed to rally them to fight enemies, but they would normally spend their time in peaceful civilian occupations.

  24. Eugene said,

    December 19, 2012 @ 8:50 pm

    Based on the evidence presented by McIntyre and supported by Language Log posts, the following conclusions are warranted.
    1) For nearly 200 years, legal scholars read the absolute participial as providing a limiting context for the main clause of the Second Amendment.
    2) Linguists and students of the language read the absolute participial as a limiting context on the Second Amendment.
    3) Judges and legal scholars who ignore the limiting effect of the absolute clause are not in accord with the amendment's traditional interpretation or with the best analyses of the amendment's meaning. They do not seem to be real Originalists. They appear to have a bias.
    4) Jeffrey Toobin really is a good sport.

  25. Bloix said,

    December 19, 2012 @ 9:58 pm

    I wish marie-lucie were correct but I don't think she is. The Constitution uses the phrase "the people" twice; the Bill of Rights five times; and the usages are both collective and plural – but more often plural, and sometimes ambigous. Here's my breakdown:

    Collective:

    Preamble: "We, the People of the United States, …"

    10 Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

    Plural:

    Art I Sec 2: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, …"

    1st Amendment: "Congress shall make no law … abridging … the right of the people peaceably to assemble …"

    2nd Amendment: "the right of the people to keep and bear Arms"

    4th Amendment: "The right of the people to be secure in their persons, houses, papers, and effects … shall not be violated"

    9th Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

  26. Polyspaston said,

    December 19, 2012 @ 10:20 pm

    WHEREAS it is the opinion pompous and immediate of the person of this poster, that the commentary given here below by the person of this poster shall be considered both obvious and trite, it is for this reason in and sentiment silly that the person of this poster has, the above discussion in consideration, adopted this speech register legal for the purpose of this missive.

    WHEREAS the question here considered must needs encompass that variance in praxis punctuational at which we, consisting of those living at the moment present, with our forebears, subsisting in times previous to a period not less than two-hundred years, so it is the opinion unconsidered of the writer here writing (viz. Polyspaston), that such variances above examined may be as much exacerbated by variance of style literary between ourselves and our forebears of the 18th Century, and the preference of writers of that time for sentences more lengthy, which is much at odds with the fashions of the present moment, as by change of diacritic convention.

    (Or in plain English: This may be an obvious point, but perhaps part of the reason for the different rules of 18th Century punctuation is that people, on the whole, wrote much, much more elaborate, and much lengthier, sentences.)

  27. Phil said,

    December 19, 2012 @ 10:40 pm

    @ Bloix

    "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."

    Clearly it is the militia that is meant to be regulated, and not the right of the people to keep and bear arms. That's why it says "well regulated Militia" instead of "well regulated right of the people…". As far as the passive voice goes, the argument could be made that because the focus is taken away from the agent, it is irrelevant who is doing the infringing- that is, no one shall infringe upon the right to bear arms.

  28. Orlandus said,

    December 19, 2012 @ 11:36 pm

    Another reason why it shouldn't be called a dative absolute is that it doesn't employ what's left of the dative in English (i.e. the objective case of pronouns). We don't say *Him being absent…; we say "He being absent…". (At least I do!)

    When we studied this construction in elementary school English class, we called it the "nominative absolute".

  29. Michael Watts said,

    December 19, 2012 @ 11:50 pm

    The second comma in the quote from Jane Austen ("a single man in possession of a good fortune, must be in want of a wife") reminds me strongly of a reason that I sometimes add nonstandard commas to my sentences — it very nicely indicates which words belong in the subject, and which don't. The more complicated the subject gets, the more helpful that can be.

  30. bloix said,

    December 20, 2012 @ 12:57 am

    Phil – you appear to want to make the right guaranteed by the second clause independent of the first clause. That would make the first clause what we in the legal biz call "mere surplusage," which is frowned upon. Under the traditional "canons of statutory construction" well-known to the Framers, one tries to avoid construing a provision in a manner that gives no effect to some of its words. If you do give the first clause some meaning, what it must mean is that the right to bear arms is guaranteed only to the extent that it is necessary to the existence of a well-regulated militia.

    In early America, militiamen owned their own weapons. If the federal government presumed to ban their right to do so, it would have interfered with the state's ability to maintain a well-regulated militia. To prevent the federal government from interfering with the militia, it was barred from infringing on the right of the people to carry the weapons they needed for their militia duty.

    That reading gives all the words in the sentence meaning, and it comports with the 18th and 19th century understanding that the rights guaranteed by the Bill of Rights were vis-a-vis the federal government only, and were not binding on the states.

  31. Michael P said,

    December 20, 2012 @ 7:52 am

    bloix- I suppose that the same argument against "mere surplusage" holds with respect to the General Welfare Clause, but that the Ninth and Tenth Amendments really are mere surplusage in their entirety?

    The Due Process Clause of the Fourteenth Amendment incorporated the Bill of Rights against the states, so it is a bit late — not to mention poorly founded — to argue that Americans of the 19th Century did not intend or expect that.

  32. Michael Cargal said,

    December 20, 2012 @ 7:52 am

    So to put it in modern form, "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."

  33. Bob Lieblich said,

    December 20, 2012 @ 9:30 am

    @Michael P – The Supreme Court has gradually incorporated many of the rights in the Constitution's Bill of Rights into the Fourteenth Amendment and thereby made them applicable to the states. But it has done so piecemeal, and there has never been a wholesale incorporation of the entire first ten amendments into the Fourteenth. The incorporation issue was open as to the Second Amendment until the Heller decision. My opinion is that Heller was wrongly decided, but the Supreme Court rarely consults me on such questions.

    Treatises have been written about the Ninth and Tenth Amendments, and LL (much as I love it) is hardly the best forum for resolving the many lingering questions about them.

  34. Ted said,

    December 20, 2012 @ 10:05 am

    @Bloix: And cannons, whether of statutory construction or otherwise, are arms and thus our right to use them cannot be infringed.

    (Sorry.)

  35. Rod Johnson said,

    December 20, 2012 @ 10:50 am

    @Michael C.: So to put it in modern form, "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."

    But see, that's starting from a preferred interpretation and finding the syntax to support it. Here are some alternatives:

    If a well-regulated militia is necessary…
    Assuming a well-regulated militia is necessary…
    Whereas a well-regulated militia is necessary…

    I think, as do others, that "whereas" captures the nuance best, and brings with it all the interpretive strategies, mysterious to lay people, associated with legal language and proclamations, the WHEREASes and THEREFOREs and whatnot.

  36. Cy said,

    December 20, 2012 @ 11:42 am

    I'm sure you're not reading any of this anymore @Jeffrey Toobin, but since your ears sound unconvinced about the source and target of the modification, might I suggest – [granting or considering 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.” – OR ["the right of the people to keep and bear arms shall not be infringed,” [since we obviously know that] “A well regulated militia" [is] "necessary to the security of a free state[.]"

  37. Coby Lubliner said,

    December 20, 2012 @ 11:48 am

    Bloix: Of the examples you give of "people" as plural, I don't see any of them as anything but collective. Wherever the plural of "person" is meant, the Constitution uses "persons" (starting with "the whole Number of free Persons…" in Article I, Section 2). This is why, just because a corporation is a "person" in a very narrow legal sense, it is idiotic to say (as a Harvard Law graduate recently did) that "corporations are people."

  38. marie-lucie said,

    December 20, 2012 @ 1:05 pm

    @Ted: And cannons … are arms and thus our right to use them cannot be infringed.

    They are arms, but not arms that anyone can bear, even if they had the means to keep them.

    But in this case, would "a well-regulated militia", made up of citizens bearing their own arms, be able to use cannons or not, against an enemy power? perhaps that is a reason why the US decided it needed a standing army after all.

    @Coby Lubliner: I think it is relevant that all those examples have "the people", never just "people" used as the plural of "person". Even in We, the people of the United States …, it is a collective. It does not mean the same as We, the inhabitants of the US: inhabitants refers to individuals who happen to share a particular life circumstance but may have little else in common, while the people of the US refers to a group linked by much stronger, multiple ties including those of history, and perceived by themselves and others as a unit.

    In my previous comment I emphasized the (now older) class meaning of French le peuple, but the word also refers to the people as a unit: le peuple français (still invoked in political discourse) includes all those who feel themselves to be French, regardless of class. I think that references to the people (of the US) in the Constitution and other documents dating from the same period had the same connotation, even if that connotation is now obscured by the use of people as the plural of "person".

  39. Mr Punch said,

    December 20, 2012 @ 2:17 pm

    None of this actually matters today (unfortunately, in my view) since the 14th Amendment essentially blew away whatever intent and meaning was behind the "militia" portions of the 2nd Amendment. All that matters now is whether or not there is an individual right to "keep arms."

  40. Bloix said,

    December 20, 2012 @ 3:21 pm

    Michael P – you write that "The Due Process Clause of the Fourteenth Amendment incorporated the Bill of Rights against the states." That's not so. Hugo Black argued that it did, but the Court has never accepted that argument. So, for example, the Seventh Amendment, protecting the right to trial by jury in civil cases, has never been extended to the states, but the Sixth Amendment right to trial by jury in criminal cases, has been "incorporated" into the due process clause.

    Marie-lucie: the rights of the people to peaceably assemble, or to be secure in their houses, are not collective rights.

  41. marie-lucie said,

    December 20, 2012 @ 4:36 pm

    Bloix, I guess there is a leakage between the collective and plural meaning of "people" in some of these cases.

    I am not trained in law and don't want to argue about which rights are collective or individual, but how can a person "assemble", peaceably or not, without others?

  42. Cameron said,

    December 20, 2012 @ 6:04 pm

    @marie-lucie: with regard to your point about the collective nature of the phrase "the people", while it is very much the case that the notion of democracy that developed in France was based on the idea of a singular collective entity referred to as le peuple, American democracy has always been quite different, based instead on a conception of the demos as an aggregation of individuals.

    At the risk of sounding pedantic by waxing bibliographical, I should like to point out that the contrast between American and French notions of democracy was discussed at some length in Dick Howard's 2002 book The Specter of Democracy. Dick Howard is one of the few American political philosophers who have a deep knowledge of French political thought.

  43. marie-lucie said,

    December 20, 2012 @ 10:15 pm

    Thank you for the information and reference, Cameron.

  44. Andy Averill said,

    December 21, 2012 @ 7:57 am

    Keep in mind that in 1789, bearing arms wasn't seen as just an abstract right, but a practical necessity. And it wasn't just about resisting tyranny — people who lived on the frontier worried about attacks by Indians, and white people in the South worried about slave rebellions. There were laws in some of the states requiring householders to own firearms, which they would keep in their own homes. Able-bodied men were also typically required to belong to a militia, which could be called up in an emergency.

    So clearly that's the background of the amendment. But what's interesting is that the writers of the amendment felt called upon to justify it — something they didn't do anywhere else in the Bill of Rights. They could have just left out the opening clause. Were they already thinking about the consequences of an unrestricted right to bear arms?

  45. This Week’s Language Blog Roundup: Words of the Year, Grimm’s Fairy Tales, movies | Wordnik said,

    December 21, 2012 @ 10:02 am

    [...] a problematic BBC piece, as well as the origins of the word bork. At Language Log, Mark Liberman took down The New Yorker for claiming that the Constitution is ungrammatical, and Geoff Pullum ranted about [...]

  46. David Walker said,

    December 21, 2012 @ 3:17 pm

    That UN link was fascinating: A single run-on sentence, broken into paragraphs, no less, with some of them marked with numbers and letters (in outline form); and then the whole thing ends with "Invites… Reiterates… Requests… Decides to remain actively seized of this matter."

    I'm glad to hear they are actively seized. I wonder if anyone has tallied how many matters the UN is actively siezed by (or with) at present.

  47. marie-lucie said,

    December 21, 2012 @ 7:45 pm

    Andy A: Some people interpret the 2nd Amendment as being intended to allow individuals to mount armed rebellions against the potential tyranny of their government, but the phrasing does not seem to suggest that at all. On the contrary, a "free state", composed of free citizens, needs to be able to defend itself from enemies by constituting a militia to which every citizen should be able (and even required) to participate. A militia composed of trained arm-bearing citizens (as in the heyday of the Roman republic) was the opposite of a standing army composed of professional soldiers, which in those days often included mercenaries (the opposite of soldier-citizens since they are fighting for pay, not for the sake of their country). There does not seem to be anything in the wording that suggests that people should be arming themselves individually against the potential criminality of their duly elected government, let alone that of their fellow citizens.

  48. marie-lucie said,

    December 21, 2012 @ 8:09 pm

    David W: … to remain actively seized of this matter

    I am not very familiar with legal language, but the phrase "to be seized of …" seems to be the exact equivalent of the French "être saisi de …", a legal term applying to an administration, judicial body, etc. This is the passive form of the transitive "saisir … de …" meaning approximately "to inform (a body) of (a contentious matter) and enjoin it to deal with it". So some department of the UN has been thus informed and enjoined at some point, and since the matter in question has not yet been resolved, the department decides to continue to consider itself enjoined to actively work on resolving it. (Of course, this does not mean that the matter will come to a speedy resolution, but it is not being put aside).

  49. Ted said,

    December 21, 2012 @ 8:28 pm

    @marie-lucie: Yes, that usage in English is derived from the French and has the same meaning. The department in question is the Security Council, and while I haven't taken the time to check, I have no doubt that if you look at the French text of the resolution you will find the construction you describe.

  50. DNEvans said,

    December 22, 2012 @ 5:33 am

    “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.” Does the infinitive "to keep and bear arms" modify "right" or "people"? Is the main clause saying that the people's right to keep and bear arms shall not be infringed, or that the (unspecified) right of the people (who are) to keep and bear arms shall not be infringed? The latter interpretation seems grammatically possible to me. On that interpretation, the opening absolute construction, though broadly modifying the main clause as a whole, might be said to relate specifically to "the people (who are) to keep and bear arms," i.e., militia members. This yields: "A well regulated militia being necessary to the security of the state, the right of militia members shall not be infringed."

  51. Andrew said,

    December 23, 2012 @ 2:41 am

    I would just like to add that a well-regulated militia is NOT necessary to the security of a free state, as we have not relied on them for nearly 200 years. We now use regular police (which didn't exist in 1789) and the strongest standing armed forces ever assembled. Some countries have no army at all, and are secure and free. The clause is objectively false. If the second clause depends on the truth of the first one, it can't be true either.

    We've focused on the syntax, but the semantics might end up being the most important part.

  52. Tom said,

    December 23, 2012 @ 5:12 am

    You mention "that said" as an example of an absolute phrase as a cliché; it is interesting that the Latin ablative absolute construction to which you refer has a similar cliché, "his dictis", meaning "these things having been said".

  53. marie-lucie said,

    December 23, 2012 @ 9:43 am

    Of course, since two thousand years separate Latin from modern English, there is no way that English "that said" could have been influenced by Latin "his dictis", or even by the French "ceci dit"! But written Latin continued to be used in high level discourse (government, diplomacy, religion, philosophy, science, etc) for many centuries after its low level oral registers gave rise to the various Romance languages, and this formal use influenced the written registers of modern Western European languages. Latin structure had a considerable influence on the development of formal English at one time: blame this continuing influence for the prohibition of split infinitives and of ending a sentence with a preposition (the first thing impossible in Latin and its descendants such as French, the second ungrammatical in those languages)(with a few French exceptions). "Ceci dit", the "absolute" is used a lot more in French than in English, including in colloquial speech, so it does not attract special attention.

  54. Coby Lubliner said,

    December 23, 2012 @ 12:37 pm

    I hope it isn't too late to go back to the original point of this post, which is the fatuousness of New Yorker writers' pronouncements on language. In the current issue, apart from a long article about a conlanger under "Annals of Linguistics" (!), I found two instances worthy of note.
    (1) Elizabeth Kolbert describes an artificial wilderness in Holland "[k]nown as Oostvaardersplassen, a name that is pretty much unpronounceable for English-speakers…" But of course none of the sounds in that name are particularly difficult to pronounce; the difficulty is only in the Dutch (and German) tendency to write compounds without breaks.
    (2) Elif Batuman, reporting on a women's theatre group in Turkey, writes, "Only Shakespeare's name couldn't be changed, which was unfortunate, because the women couldn't pronounce it. Ümmiye wrote the Turkish transliteration, Şekspir, on their hands…" Once again, pronunciation is confused with reading.

  55. Andrew Main said,

    December 28, 2012 @ 6:24 pm

    @Chris C.:

    "Some years ago I read an article in a right-wing publication where the author asserted with an apparently straight face that 'well-regulated' meant 'well-equipped' in the 18th century."

    From Noah Webster's 1828 Dictionary of the American English Language:

    "REGULATE, v. t. To adjust by rule, method or established mode; as, to regulate weights and measures; to regulate the assize of bread; to regulate our moral conduct by the laws of God and of society; to regulate our manners by the customary forms.
    "2. To put in good order; as, to regulate the disordered state of a nation or its finances.
    "3. To subject to rules or restrictions; as, to regulate trade ; to regulate diet.
    "REGULATED, pp. Adjusted by rule, method or forms; put in good order; subjected to rules or restrictions."

    See the second item under each heading; it does not seem to me that "to put in good order" could be said to exclude "well-equipped". Dunno what good a militia (which consists of the armed citizenry, experienced in the use of their arms, called together in time of need) would be without working weapons in good repair, oiled, etc.

  56. James S. said,

    December 30, 2012 @ 4:14 pm

    "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."

    Reading the Second Amendment as a statement in which every word counts follows from the opinion articulated by Chief Justice John Marshall: “It cannot be presumed that any clause in the constitution is intended to be without effect” (Marbury v. Madison, 1803).

    Some insist that the first clause is absolute, therefore non-operative; a throwaway.

    In that case, it could just as easily be read to say "A well regulated militia shall not be infringed", with the two central phrases simply supportive of a WELL regulated militia. Unregulated non-militia gun ownership is not thereby protected. The "right of the People to keep and bear arms" is the throwaway absolute then, as a simple descriptive, supporting of the guarantee of a militia and a free, secure country, not the other way around:

    When large loud groups go to DC packing assault rifles and promise a "Second Amendment Solution" to the outcome of the electoral and legislative process I consider them terrorists and traitors to democracy itself. I begin to understand the "being necessary to the security of a free State" part real well. I respect those serving in our well regulated militias. I also support well regulated private gun ownership, since the Amendment supports our right to a militia, security, and freedom, but does not prohibit private gun ownership nor its regulation.

  57. Oliver said,

    July 6, 2014 @ 6:58 am

    Hm. Has somebody considered the option that it is an enumeration
    a) the union cannot forbid a state a well regulated militia
    b) nobody can infringe the right to keep and bear arms

    Or alternatively, the second amendment applies only in free states, that is not in Washington D.C., Puerto Rico and Guam?

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