Guns and Grammar: the Linguistics of the Second Amendment
The Second Amendment to the U.S. Constitution reads,
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.
Manuscript and early printed versions of the amendment
Originally the fourth of twelve constitutional amendments proposed in 1789, it was
ratified by the states in 1791, along with the nine other amendments we call the Bill of
English common law had long acknowledged the importance of effective arms
control, and the meaning of the Second Amendment seemed clear to the framers and their
contemporaries: that the people have a right to possess arms when serving in the militia.
Over the years, this “collective rights” interpretation of the Second Amendment was
upheld in three Supreme Court decisions, in 1876, 1886, and most recently, in 1939
(Bogus 2000). The meaning of the Second Amendment remained uncontroversial until
1960, when a law review article using sources like American Rifleman asserted an
additional, individual, right to bear arms for the purposes of self-defense (Hays 1960).
Since that time, a growing bloc of constitutional scholars and historians has asserted that
only the individual rights interpretation of the right to bear arms is correct, even calling
this new reading the “standard model,” as if the original, collective rights interpretation
hadn’t prevailed for more than a century (Bogus 2000b). And the majority of Americans
now believe that the Second Amendment guarantees their right to tote a gun.
Over the past twenty years, the individual rights model has been used to block
passage of gun control laws, or to undercut them – for example, the assault weapons ban
of 1994 was allowed to expire ten years later because of pressure from gun-rights
Despite the gun lobby’s insistence on a long common law tradition supporting the
individual’s right to weapons, gun regulation has been a feature of English law since the
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14th century, when a series of Game Laws expressly restricted weapons ownership to
members of the gentry who met thresholds of income and land ownership – guns were for
the wealthy, not the peasants or the lower middle class (Schwoerer 2000). Even the
English Bill of Rights, presented by the House of Commons to the new monarchs
William and Mary in 1689, the very statute that is often cited by gun lobbyists as
guaranteeing everyone’s right to own weapons, limited such ownership to Protestants,
provided they were of the right social class, and acknowledged the role of the law in
further regulating weapons: “that the subjects which are Protestants may have arms for
their defence suitable to their conditions and as allowed by law” (English Bill 1689,
emphasis added; Blackstone, whose opinions are frequently considered by the justices of
the U.S. Supreme Court, echoes this qualification of weapons ownership in his
detail from the English Bill of Rights
The British have continued their long tradition of relatively strict gun control, but
in the United States resistance to gun regulation is on the increase. Most recently, in
March, 2007, the U.S. Circuit Court of Appeals for the District of Columbia embraced
the new individual rights model and ruled that Washington, D.C.’s, ban on handguns, in
effect since 1976, violated the Second Amendment’s guarantee of the right to keep and
bear arms (Parker v. District of Columbia 2007). As the court saw it, the Second
Amendment did not explicitly connect gun ownership with militia service. Writing the
majority opinion in the case, Judge Charles Silberman ruled that the first clause of the
Second Amendment, called the “militia clause,” was merely prefatory, a bit of
constitutional throat-clearing that had no bearing on the amendment’s “operative” second
clause. And that operative clause prevented the city of Washington from banning
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Early printed version of the first two amendments
Washington, D.C., promptly appealed this decision to the U.S. Supreme Court,
which granted certiorari and heard oral arguments in the case, renamed District of
Columbia v. Heller, on March 18 (07-290). The court will issue its decision by the end of
the current term, in June.
In support of its appeal, the District solicited amicus briefs from groups
supporting its position, including concerned historians, the American Academy of
Pediatrics, the Brady Center to Prevent Gun Violence, the City of Chicago, groups of
mayors, legislators, and district attorneys, the NAACP Legal Defense Fund, and the
American Bar Association.
Because I had written an op ed essay in the Los Angeles Times questioning the
historicity of the Appeals Court’s interpretation (Baron 2007), the District’s attorney
general asked me to prepare an amicus brief on the linguistics of the Second Amendment,
explaining the amendment’s grammatical structure and tracing the meaning of its key
words from the eighteenth century to the present. Toward the end of the process I finally
managed to persuade two colleagues, Dick Bailey, of the Univ. of Michigan, and Jeff
Kaplan, of San Diego State, to join me in the group which I then renamed amici
linguarum, the friends of language, as we refined and submitted the brief whose final
version was actually drafted by our counsel, Charles Dyke, and titled “Brief for
Professors of Linguistics and English” (Baron et al 2008).
Briefs for the gun rights side dismiss our claims as incorrect or overly-fussy
grammar lessons. But from the questions and discussion during oral arguments in Heller,
it was clear that at least Justice Souter had read our brief and found it convincing. This is
certainly the closest I have managed to come, in my career, to using linguistic evidence to
influence public policy.
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The linguists’ amicus brief
Opponents of gun control have argued that there are linguistic reasons for
dismissing the first part of the Second Amendment as merely “prefatory” or
“preambulatory,” even though18th-century readers would never have seen it that way. In
addition, they reinterpret the meanings of the phrase bear arms and the word militia in
ways that support their cause but go against the sense those words had in the federal
period, and continue to have today. In support of the District of Columbia’s appeal to
reverse that lower court ruling, we presented linguistic evidence arguing,
1. that the Second Amendment was intended to be read in its entirety;
2. that the first part of the amendment is both syntactically and semantically tied to
3. that the first part of the amendment specifies the reason for the second, that the
right to keep and bear arms is tied directly to the need for a well-regulated militia;
4. that the ordinary and customary meaning of the phrase bear arms in the 18th
century is tied to military contexts, not to contexts involving hunting or self
5. and that the word militia refers in the federal period to an organized and trained
body of citizen-soldiers, or to those eligible to serve in such a body, not to any
and all Americans, most of whom were actually barred from militia service.
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Syntax of the Second Amendment
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).
But even without that landmark ruling, it would have been clear to 18th-century readers
that the first part of the Second Amendment was bound to the second part in a cause-and-
effect relationship, that the right to bear arms was tied by the framers directly to the need
for a well-regulated militia.
In his Appeals Court opinion, Judge Silberman pays particular attention to the
punctuation of the Second Amendment: “The provision’s second comma divides the
Amendment into two clauses; the first is prefatory, and the second operative” (Parker et
al. v. District of Columbia 2007). While it is true that the second comma divides the
sentence syntactically, it is certainly not the case that such punctuation is necessarily used
to divide the unimportant from the significant parts of a sentence, either in the 18th
century or today.
Because modern punctuation practice is well regulated, we as 21st-century readers
may be tempted to ascribe more to the Second Amendment’s punctuation than is
warranted. Punctuation was not an important part of 18th-century writing instruction. The
most popular grammars in the framers’ day were written by Robert Lowth and Lindley
Murray. Though both are concerned with correcting writing mistakes, and both give a
number of rules for comma use, what Lowth tells us is not very encouraging to those who
look to punctuation as an exact science: “The doctrine of punctuation must needs be very
imperfect: few precise rules can be given, which will hold without exception in all cases;
but much must be left to the judgment and taste of the writer” (Lowth 1762, 155).
In addition to signaling syntactic breaks, eighteenth-century punctuation allowed
for commas to be inserted as needed for breathing. Here is an example of such a pause,
from Article III, section 1 of the U.S. Constitution: “The judicial power of the United
States, shall be vested in one Supreme Court.”
Article III of the Constitution
The comma in that sentence does not separate prefatory material from substance.
Instead, it marks a pause for breath. But times have changed. If a student put that comma
in a paper today, it would be marked wrong.
The Constitution has other punctuation practices we would also consider
irregular. For example, in Art. I, sec. 10, the framers write the possessive it’s (modern
practice would require its): “No state shall, without the consent of the Congress, lay any
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imposts or duties on imports or exports, except what may be absolutely necessary for
executing it’s inspection laws” (emphasis added).
Even 20th-century constitutional amendments show irregular comma use. The 18th
Amendment contains commas, normally used today to set off nonrestrictive clauses, to
mark instead what must be read as a restrictive relative clause: “The right of citizens of
the United States, who are 18 years of age or older, to vote, shall not be denied or
abridged by the United States or any state on account of age” (emphasis added). So does
the even more recent 27th Amendment (one of the original 12 amendments, but not
ratified until 1992): “No law, varying the compensation for the services of the Senators
and Representatives, shall take effect, until an election of Representatives shall have
intervened” (emphasis added).
While it is popularly held that the presence or absence of a comma can have a
critical impact on the interpretation of a contract or a law, these examples demonstrate
that, even today, punctuation in such carefully-drafted documents as constitutions and
their amendments does not always reinforce meaning.
But that’s not all. Apparently, some copies of the Second Amendment sent to
some of the states for ratification had a different number of commas from the “official”
version as printed by the federal government (Van Alstyne 2007). Even the text of the
Second Amendment quoted in the Silberman decision contains only the first two
commas, not the third. But that should not pose a problem, even for a strict
constructionist. Punctuation only loosely correlated with meaning in the 18th century, and
it would not be an exaggeration to claim that the Second Amendment would mean the
same thing – not just when it was written but today as well – whether it had one, two, or
three commas, or none at all.
Although Judge Silberman reads it otherwise, the Second Amendment’s second
comma tells us that the subsequent clause, “the right of the people to keep and bear Arms,
shall not be infringed,” is the logical result of what preceded that comma, “A well
regulated Militia, being necessary to the security of a free State.” That is because absolute
phrases like the one at the start of the Second Amendment are commonly set off by
commas and signal a cause-and-effect logical relationship.
Judge Silberman doesn’t call the “prefatory” phrase an absolute, but his argument
that prefatory material is not pertinent draws on the conclusion that Nelson Lund reaches
in his own discussion of the Second Amendment’s “preambulatory” absolute (Lund
2007). Lund, whose expertise is law, not language, insists that an absolute is
grammatically independent from a sentence’s main clause, and so can have no impact on
the meaning of that sentence. Commenting during oral arguments, Justice Kennedy, who
clearly preferred an individual rights interpretation of the Second Amendment, similarly
disconnected the two halves of the amendment, though without dismissing the
importance of a militia: “[T]here is an interpretation of the Second Amendment . . . that
conforms the two clauses and in effect delinks them. . . . The amendment says we reaffirm
the right to have a militia, we’ve established it, but in addition, there is a right to bear
arms” (Supreme Court 2008, 5-6).
But an examination of absolutes in English shows that they should not be
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So what’s an absolute when it’s at home?
The phrase a well regulated militia being necessary to the security of a free State is
known in grammar as an absolute construction.
Quirk et al. (1985) specify that “ABSOLUTE clauses [are] so termed because
they are not explicitly bound to the matrix clause [i.e., the main clause] syntactically,”
adding, “the logical connection between the clauses is primarily one of reason” and
“logical relationships . . . are generally clear from the context. . . . In –ing clauses, verbs
used dynamically tend to suggest a temporal link, and stative verbs a causal link”:
Reaching the river, we pitched camp for the night. [‘When we reached the
river, . . .’ ]
Being a farmer, he is suspicious of all governmental interference. [‘Since
he is a farmer, . . .’ ]
[Quirk, et al., 1124]
This latter example is much like the absolute in the Second Amendment, which
accordingly can be read, ‘Since 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.’
C. T. Onions noted the apparent separation of the absolute clause, while also
affirming its function as “equivalent in meaning to Adverb Clauses of Time, Reason,
Condition, or Concession, or to an Adverbial Phrase expressing Attendant
Circumstance.” Onions further writes, “Such a group is called ‘Absolute’ [Lat., absolutus
= free], because in construction it seems to be free of the rest of the sentence” (Onions
1904, 66; emphasis added).
The absolute seems to be free or independent, in part, because, as Murray notes, it
is “separated by commas from the body of the sentence” (1795, 162-63). But
grammatical independence is not semantic independence. It simply means that the noun
in the absolute phrase occurs in the nominative or “common” case. The opposite of
independence is governance, the situation in which the case of a noun is “governed” by
another structure or by its syntactic function.
Bishop Lowth on ‘regimen, or government’
As Lowth put it, “Regimen, or government, is when a word causeth a following
word to be in some case, or mode” (Lowth 1762, 95). In Lowth’s day, English absolutes
took the nominative, the unmarked, ungoverned cased, and so appeared to be
grammatically independent, so far as case assignment was concerned. But this
independence is an illusion resulting from the loss of case in English. In Old English, the
nouns in absolute constructions appeared in the dative (in imitation, most likely, of the
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Latin ablative absolute), with the dative case marking the subordination of the absolute to
the main clause of the sentence.
Onions gives this example,
OE: ēow slǣpendum forstǣlon thone lichaman ‘[with] you sleeping,
they stole away the body’
which he compares to the Latin ablative absolute: urbe captā, rediit domum, ‘with the
city taken, he returned home.’
William Ward on the absolute
Some early grammarians acknowledged the true connection between absolutes
and the rest of the sentence. William Ward (1767, 145-46)) recognizes both the
grammatical and the semantic dependence of the absolute construction and explains that
the absolute implies “a whole Sentence” which 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,” and Goold Brown (1880, 536) says,
“The nominative put absolute with a participle, is often equivalent to a dependent clause
commencing with when, while, if, since, or because.”
Onions finds that although absolutes were relatively rare in earlier periods of
English, by the 17th century the absolute had become thoroughly naturalized, offering “an
important adjunct to style, to which it imparts variety and compactness. It gives life and
movement to the sentence, and is the ready resource of all writers of narration and
description for the purpose of expressing subordinate conceptions” (Onions 1904, 69).
He gives the following examples of modern absolutes:
• condition: I will come, weather permitting.
• time: This done, we went home.
• reason: The signal being (or having been) given, we set off.
• It being very cold, we made a fire.
• attendant circumstance: She failing in her promise, I have been
diverting my chagrin. (Sheridan)
• Away go the two vehicles, horses galloping, boys cheering, horns
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Jespersen (1949, V, 46) attributes the nativization of the absolute in the 17th
century to the influence of classical prose as a model for English writers, and Evans and
Evans (1957, s.v. participles) further note that while absolutes are often associated with
written rather than spoken English, absolutes occur naturally in English and some have
even become common idioms: “Phrases such as that settled, everything considered, that
being the case, are in frequent use.” Other common and idiomatic absolutes include all
things considered, all things being equal and present company excluded.
George Curme connects the English absolute to the Latin structure on which it is
modeled, and demonstrates that English absolutes were marked as grammatically
dependent both in older forms of English, and in Latin:
the words in the dative and ablative formed an adverbial clause in which
the noun was subject, the accompanying participle, adjective or noun was
predicate, and the dative or ablative was the sign of subordination to the
principal verb. . . . Later, when the inflections lost their distinctive case
forms, the dative, no longer distinguishable as such, was construed as a
nominative, an absolute nominative, since its form does not indicate any
relation to the principal proposition.
[Curme 1931, v. 3, 152-53; emphasis added]
While the “form” of the absolute no longer reflects its relation to the principal
proposition, speakers of English still understand the semantic relationship between the
absolute and the rest of the sentence, and English writers still separate the absolute from
the main clause with a comma in the same way that they would separate a dependent
clause functioning as a sentence adverbial. Even though the form of the absolute no
longer signals its connection to the rest of the sentence by case marking, that connection
Curme gives these examples of cause-and-effect absolutes:
He being absent, nothing could be done.
My task being completed, I shall go to bed.
Mr. Smith being the toastmaster, I think we may expect an enjoyable time.
[Curme 1931, 153]
Although some grammarians have called it rare, the absolute construction is far
from absent in prose of the federal period, and even without formal grammar study, 18th-
century Americans would have had no trouble understanding Article 3 of the Northwest
Ordinance of 1787:
Religion, morality, and knowledge, being necessary to good government and the
happiness of mankind, schools and the means of education shall forever be
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But Nelson Lund argues that if the framers really wanted to make this cause-and-
effect relationship explicit, they should have modeled the Second Amendment on the
Patent and Copyright clause of the Constitution (2007, 14-15). That clause reads,
The Congress shall have Power . . . To promote the Progress of Science
and the useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and Discoveries.
[Art. 1, sec. 8]
It is almost always possible to point out a better way for the authors of a
proposition to have worded it. But one could respond to Lund that if the framers had
wanted to secure an individual right to gun ownership, they would have written, “Private
possession of arms being necessary to individual freedom” or even, simply, “The right of
the people to keep and bear arms shall not be infringed,” without any conditioning
absolute at all. It is worth pointing out, too, that the Second Amendment is the only one
with a conditioning causal phrase, a fact which suggests that the absolute is important,
not just decorative. Lund is aware that the absolute of the Second Amendment is marked;
he actually calls the absolute the amendment’s most significant grammatical feature, and
then proceeds to tell us how insignificant it really is (2007, 12).
The absolute was certainly both familiar and significant to James Madison, who
drafted the Second Amendment: an examination of Madison’s letters and papers shows
that in addition to the Second Amendment’s “militia clause,” he often used absolute
constructions in his correspondence and other writings. A thoughtful writer like Madison
would not have used the construction if he suspected that his readers might find it odd or
The framers and their contemporaries had probably seen their share of absolutes
long before they read the Second Amendment, and it’s also likely that they first
encountered the absolute construction when they studied English or Latin grammar in
school. They might even have been tested on it in some federal version of “No Child Left
Behind.” But even without formal schooling, given normal assumptions about rational
communication, it is safe to assume that readers would have found the absolute phrase in
the Second Amendment noticeable and understandable, as well as intentional and
To keep and bear arms
In addition to the question of the syntax and function of the absolute, the discussion of
the meaning of the Second Amendment focuses on the interpretation of the word militia
and the phrase bear arms.
Bear arms (analogous to, and perhaps initially a translation of, the Latin arma
fero, or arma ferre) typically refers to the act of soldiering and the use of military
weapons. Perhaps the most pertinent American reference to bearing arms before the
Second Amendment is its use in the Declaration of Independence:
The present King of Great Britain . . . has constrained our fellow citizens
. . . to bear arms against their country.
Arms themselves are weapons, and in older uses, armor as well.