The U.S. Supreme Court will hear oral arguments this week in a case that could decide whether the Second Amendment – the one about the right to bear arms – permits or prohibits gun control.
In 2003, Dick Heller and five other plaintiffs challenged Washington, D.C.’s, tough gun control law, claiming that its ban on handguns violated their Second Amendment right to tote a gun. Last Spring, the U.S. Circuit Court of Appeals for the District of Columbia upheld Heller’s claim. The Supreme Court then agreed to hear D.C’s appeal of the Heller case.
The Second Amendment to the U.S. Constitution 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.
One of the points at issue in the Heller case is whether the right to bear arms is related directly to service in a militia, or whether it’s an individual right conferred on every American. Opponents of gun control favor an individual rights reading, ignoring or minimizing the militia’s presence in the Second Amendment.
But according to the grammar lessons that the Framers would have learned, the sentence structure of the Second Amendment binds the right to bear arms to service in the militia.
James Madison originally drafted 12 amendments to the Constitution; the present 2nd Amendment was originally the fourth
In its decision, the Court of Appeals agreed with the pro-gun lobby that the first half of the Second Amendment – the part about the militia – is merely prefatory, while the amendment’s operative main clause guarantees every American the right to gun ownership (Parker v. District of Columbia, at 13).
Nelson Lund, in an amicus brief supporting Heller, argues that the amendment’s preamble has no force because it’s an absolute phrase, and “such constructions are grammatically independent of the rest of the sentence” (Lund, at 7). In Lund’s view, the “preamble” is nothing more than a bit of constitutional throat-clearing to be discounted when considering the meat of the amendment.
Absolutes are grammatically independent, no doubt about it. But grammatical independence has always been narrowly defined, and it never excludes the clear semantic connection between an absolute and the rest of the sentence.
In his Rudiments of English Grammar (1790), Noah Webster writes that “a nominative case or word, joined with a participle, often stands independently of the sentence. This is called the case absolute.” Webster gives several examples, including, “They all consenting, the vote was passed.” He explains, “The words in italics are not connected with the other part of the sentence, either by agreement or government; they are therefore in the case absolute, which, in English, is always the nominative.” Grammatical independence, to Webster, is not about political self-determination, it's all about the nominative case. But he would acknowledge without hesitation that the vote would not have passed without the consent of the voters.
Noah Webster, a staunch and pious federalist who suggested that English in America be called Federal Language, explains the absolute construction to the young nation in his 1790 grammar
Webster’s readers would have had no difficulty recognizing that the Second Amendment also begins with an absolute. They would have studied the absolute in school, and they had probably been tested on it in a federalist-era version of No Child Left Behind.
Any educated federalist also would have learned in school that government, in grammar, merely refers to the case of a noun – its inflection as a nominative, dative, genitive, accusative (or, in the case of Latin, an ablative). As Robert Lowth, the author of the most widely-studied school grammar of the time, put it, “Regimen, or government, is when a word causeth a following word to be in some case, or mode.” For example, prepositions cause the following noun or pronoun to take the dative case. Or as the schoolbooks liked to say, prepositions govern the dative. That’s why we say, “Give the gun to me,” not, “Give it to I.”
Bishop Lowth explains that government, in grammar, is all about case
In addition, grammarians from the 18th century down to the present affirm that the absolute construction invariably establishes a semantic dependence in a sentence. William Ward, in his Grammar of the English Language (1767), explains that the absolute construction implies “a whole Sentence” that has a logical relationship -- if-then or cause-and-effect – to the rest of the utterance: “The most common Kind of absolute Construction . . . appears when a Series of Words, containing a Participle in dependence on a Substantive in the Nominative Case, is made equivalent to a whole Sentence depending on Conjunction or Relative Adverb.”
William Ward (1767, p. 145) on the absolute as the equivalent of a whole sentence
Lindley Murray illustrates this as well in his very popular school grammar first published in 1795: “His father dying, he succeeded to the estate.” Because the father dies, the son inherits. The second event can’t happen without the first.
Lindley Murray, in his 1795 school textbook,
English Grammar, adapted to the different classes of learners, gave this example of a cause-and-effect absolute that is set off by commas, as it is in the Second Amendment, but is semantically integral to the sentence.
In the case of the Second Amendment, the absolute also shows a clear cause-and-effect relationship: because a well-regulated militia is necessary, the right to bear arms shall not be infringed. Add to this the fact that the expression “to bear arms” overwhelmingly occurs in military contexts, not civilian ones, both in the 18th century and today: as the historian Garry Wills
(1995) has put it, one does not bear arms against a rabbit. It would thus be hard to discount the militia when interpreting the Second Amendment.
In deciding the Heller case, the Supreme Court may wind up parsing the Second Amendment differently, but if it does, it risks calling down the wrath of Robert Lowth, Bishop of London, the royalist sympathizer Lindley Murray, and the rabid federalist Noah Webster, whose political opinions may have differed, but whose grammatical analysis informed the eighteenth century and the documents, like the Constitution and the Bill of Rights, that it generated.