Guns and Grammar
Though awkward and antiquated, the Second Amendment’s syntax and grammar unambiguously protect gun rights.
For several weeks gun enthusiasts have been nervously watching the U.S. Supreme Court. The highest court has flirted with granting certiorari and agreeing to hear two noteworthy gun-related cases: Snope v. Brown and Ocean State Tactical v. Rhode Island. Both cases involve statewide bans on semiautomatics and ammunition. So far, the courts have only relisted the cases, keeping the dockets—and those nervously refreshing the court's website—in a suspenseful procedural limbo.
If the Court accepts these cases, the justices will undoubtedly revisit the current precedent established in 2008 by District of Colombia v. Heller. This landmark decision not only acknowledged and affirmed the individual right to firearms protected by the Second Amendment but also resurrected an age-old debate about the amendment's curious grammatical structure.
The Second Amendment's stilted syntax often inspires critics to wax grammatical. "The text of the amendment…is, as a whole, ungrammatical," writes Jeffrey Toobin, CNN's chief legal analyst. Some even argue that corpus linguistics—the study of language by analyzing vast collections of historical texts—safely rejects the current jurisprudence affirming an individual right to firearm ownership. (Spoiler alert: It doesn't, as David Kopel and Will Baude of The Volokh Conspiracy can confirm.)
Though seemingly ambiguous, the Second Amendment makes sense once dissected grammatically.
Clause for Concern
Scholars divide the Second Amendment into two clauses: the prefatory and the operative clauses. Each serves a different purpose. The prefatory clause—the subordinate opening about a well-regulated militia being necessary for security—provides the amendment's historical and cultural context. Meanwhile, the operative clause—the final half prohibiting infringement—unequivocally asserts the natural right of gun ownership. If the Second Amendment were a meal, the prefatory clause would be the appetizer, and the operative clause the main course.
From a grammatical standpoint, the prefatory clause is nonrestrictive. This introductory throat-clearing provides additional details unessential to the sentence's core meaning. Justice Antonin Scalia affirmed this interpretation in District of Columbia v. Heller, the 2008 landmark legal precedent that secured the individual right to firearms. The prefatory clause, Scalia argued, "does not limit the latter grammatically, but rather announces a purpose."
Gun control advocates tend to elevate the prefatory clause's militia reference, suggesting it's a precondition for the right to firearms. Some even claim that the Second Amendment preserves the right to maintain a militia.
Yet many linguistic scholars reject this interpretation. Kari Sullivan, a senior lecturer in linguistics at the University of Queensland, argues that the prefatory clause is neither internal nor conditional; instead, it's temporal and external, meaning the opening words introduce its context and purpose.
The amendment's bifurcated construction mirrors other famous documents of the era. The Virginia Declaration of Rights, often considered the foundation of the Bill of Rights, also used the prefatory/operative structure. Regarding free speech, section 12 of the declaration stated: "That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments." Prefacing a free press as "one of the great bulwarks of liberty" serves a similar prefatory purpose, adding colorful prose to the right articulated in the operative clause (i.e., can never be restrained but by despotic governments).
The arguments don't stop with grammatical construction. The Second Amendment's punctuation also provokes heated debate.
Plain Comma Sense
In a fictional exchange between Thomas Jefferson and James Madison, John Quaintance satirized the amendment's questionable punctuation, especially the amendment's last comma between arms and shall. "Also, not to be a grammar redcoat here, but the use and placement of the comma isn't helping," writes an apocryphal Jefferson. "Can we change it? It will take two seconds." This comma even inspired an Atlantic essay to ask if it is the "most consequential comma in U.S. history."
Comma usage at the time of the Constitution's signing was far from precise. "In the 18th century, punctuation marks were as common as medicinal leeches and just about as scientific," writes Adam Freedman of The New York Times.
Back then, commas mimicked speech patterns. Commas once represented natural pauses for speakers to catch their breath between intonational units. Writing has always been an extension of oral communication, but this was especially true during the Constitution's formulation.
This outmoded writing style includes commas that separate subjects from predicates. The Western canon brims with examples from literary classics, including Charles Dickens's Hard Times ("The objects he had lately pursued, turned worthless beside her") and Herman Melville's Moby Dick ("But this august dignity I treat of, is not the dignity of kings and robes"). By modern standards, William Shakespeare's excessive use of punctuation is ungrammatical.
Though antiquated, similarly punctuated sentences appear throughout the Constitution. Note the commas in Article III, Section 1 ("The judicial power of the United States, shall be vested in one Supreme Court") and Section 3 ("Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort"). Despite their punctuation, these constitutional clauses unambiguously codified the Supreme Court as the ultimate judicial authority and established the constitutional definition of treason, respectively.
The comma, among its many uses, can denote nonrestrictive apposition. An appositive phrase links a noun with a modifying phrase or clause. Thus, the prefatory clause involves the primary noun phrase (i.e., a well-regulated militia) and its modifying nonrestrictive appositive (i.e., being necessary to the security of a free state). To avoid grammarians labeling the modifier "misplaced" or "dangling," these two phases must adjoin, and the comma demarcates their symbiotic relationship.
Consequently, the operative clause must also abide by the same parallel structure. Considering their proximity, the clause's first half (i.e., the right of the people to keep and bear Arms) and second (i.e., shall not be infringed) must work together. Thus, with these adjoining phrases, the operative clause—though interrupted by a comma splitting the subject and predicate—explicitly and solely prohibits government infringement of the right to keep and bear arms. Moreover, this clause isn't grammatically dependent on the militia reference, given the distance between the two.
The exact quantity of commas in the amendment is also complicated. Though the final version of the text contains three, several states ratified the amendment with fewer. Maryland, New York, Pennsylvania, and South Carolina used only one comma. New Jersey's version had none.
But most speculation about the amendment's "consequential" commas is exaggerated. Historically, punctuation lacks legal standing. A long-standing British tradition minimized punctuation's effect on laws. American jurisprudence has also followed this standard, especially in Supreme Court decisions like Hammock v. Loan and Trust Company, Simpson v. United States, and Stephens v. Cherokee Nation—all cases involving justices ignoring punctuation.
Undoubtedly, the Second Amendment's punctuation is clunky at best, ahistorically ungrammatical at worst. But given the era's writing style and the parallel relationship of its various phases, the Second Amendment intuitively accomplishes its main goal: enumerating the right to own a firearm.
Passive Voice Shall Not Be Infringed
Some critics suggest the amendment's passive voice compels its ambiguity. "Given the regrettable use of the passive voice, just who is it that is bound by the Amendment?" asks Richard A. Epstein, a law professor at the University of Chicago.
Understanding the difference between active and passive voice sheds light on the Second Amendment.
With active voice, a subject acts, and this action occasionally affects an object. For example: "The Second Amendment protects the right to bear arms." In this sentence, the subject (i.e., the Second Amendment) acts (i.e., protects) upon an object (i.e., the right to bear arms).
Passive voice flips the script and emphasizes the object. The passive predicate is usually a past participle accompanied by an additional "to be" verb (e.g., is, are, was, were, etc.). For example: "The right to bear arms is protected by the Second Amendment."
Any discussion of passive voice would be remiss if it didn't mention its capacity for deception. From Watergate to Iran-Contra, public officials regularly use the age-old dodge "mistakes were made" to weasel out of responsibility.
But like a firearm, grammatical construction is bad only when wielded by the wrong people. Passive voice is neither inherently wrong nor ungrammatical. Indeed, its usage is sometimes warranted.
The passive voice is helpful when 1) the object is more important than the subject or 2) the subject is innumerable. Consider the following sentence: "Martin Luther King Jr. was arrested 30 times throughout his civil rights career." Does it make sense to name every officer involved in those arrests? Of course not. Rather than undergo the painstaking process of identifying each and every subject, passive voice empowers writers to obscure or omit the no-named subject and promote the more significant object.
Passive voice wasn't limited to the Second Amendment; the Framers used it liberally throughout the Bill of Rights. The Fourth Amendment asserts that the right against unlawful search and seizure "shall not be violated." The Fifth Amendment states, "No person shall be held to answer for a capital, or otherwise infamous crime." Only the First Amendment uses active voice ("Congress shall make no law").
The Bill of Rights' passive voice consistently elevates one object: individual rights. As for the subject, the Framers could neither specify nor predict what or who could infringe upon said rights. Thus, the Constitution, especially following the 14th Amendment's ratification, safeguards these rights from an exhaustive catalog of unscrupulous subjects—namely, state actors (e.g., cops, Congress, presidents, judges, city councils, etc.) that could violate these freedoms.
Unfortunately, rights haven't always been universal. Life, liberty, and the pursuit of happiness didn't always apply to marginalized communities. Any high-level conversation about American history would be remiss if it didn't mention chattel slavery, the genocide of Indigenous people, or the disenfranchisement of women.
Though pockmarked with violence and repression, the arc of American history, to paraphrase King, bends toward justice. Over time, civil liberties have expanded rather than contracted. Assuredly, more work remains to advance the causes of liberty and dignity. And though imperfect, the Constitution's linguistic architecture has endured historical tumult, exalting and articulating our natural rights to speech, religion, assembly, due process, and—yes—gun ownership.
