Every election cycle, and every time there’s a mass shooting in the U.S., rightists and leftists alike are quick to debate the pros and cons of gun control. But for whatever reason, the talking points that saturate the media, social media, and the blogosphere seldom address the Constitutional underpinnings of gun rights, namely the Second Amendment. So here, I figured I’d address what the Second Amendment actually protects. It’s a fascinating subject in both law and linguistics, and I hope you’re ultimately inspired to learn more.
For the sake of simplicity, I am going to approach this issue from a strictly textualist perspective. That is, I will assume that the Second Amendment’s text is the only source of its meaning. While many would argue (correctly, perhaps) that textualism isn’t entirely viable as a means of statutory interpretation, getting bogged down in deciphering original intent and cobbling together abstract utilitarian calculations makes a relatively straightforward analysis like this needlessly complicated. So bear that in mind.
In 2012, Jeffrey Kaplan, a San Diego State University linguistics professor, published an article entitled “Unfaithful to Originalism” in the Georgetown Journal of Law and Public Policy, an analysis of the Second Amendment and a critique of the verdict reached in D.C. v Heller. For the uninitiated, Heller is a 2008 Supreme Court decision that overturned a District of Columbia gun-control statute and established a right to private gun ownership on a national level. In other words, the federal government is now expressly prohibited from banning private gun ownership.
Kaplan begins by separating the Amendment into two parts: a conditioning absolute, followed by an independent operative clause. For the sake of clarity:
“A well-regulated Militia, being necessary for the security of a free State” is the conditioning absolute, and “the right of the people to keep and bear Arms, shall not be infringed” is the operative clause.
In linguistics, a conditioning absolute is a tenseless clause that justifies the action(s) that occurs in its affiliated main clause. In other words, what happens—or, in the case of the Second Amendment, is proposed—in the main clause is a result what’s stated in the absolute clause. A sentence follows this construction if its absolute clause both modifies and occurs before the main clause (as described) and is, according to Kaplan, “appropriately presupposed,” meaning that it is “in, or can be easily added to the common ground, the set of propositions shared by speaker and addressee.”
An example of a conditioning absolute is: “The crowd being angry, the stand-up comedian was booed off stage.” The first clause clearly modifies the second clause; the comedian was booed because the crowd was angry—and a hypothetical addressee would have no issue imagining an angry crowd at a comedy club, which puts that detail firmly in the common ground.
In the case of the Second Amendment, both the syntax and content of its absolute clause make it a conditioning absolute. Its use of “being” almost guarantees modification, and widespread support amongst Federalists and Anti-Federalists alike for a citizen militia composed of 18-45 year-old men put the first clause in the nation’s common ground at the time.
In order for a clause conditioned by an absolute to maintain its illocutionary force (read: legitimacy), the justification set forth in the absolute clause must be largely accepted by the public at large. In other words, if an offer, legislative pronouncement, or some other sort of command is contingent on a premise in the absolute clause that’s demonstrably false, it no longer stands. Kaplan essentially claims that this is a basic, non-negotiable linguistic principle, but he uses a few thought experiments to demonstrate its legitimacy.
One of the examples he uses is a bar patron who offers to order a round of drinks for everyone at a bar, mistakenly believing that it’s St. Patrick’s Day. Because it’s known to the other bar patrons—and it becomes known to the speaker—that it’s not actually St. Patty’s Day, he shouldn’t be held to his initial offer. Reasonable enough.
Another, more relevant example is a hypothetical city ordinance adopted a century ago that permits city residents unrestricted access to the local water supply: “Water being an abundant resource, property owners shall have an unrestricted right to irrigate their property as they see fit.” If it becomes widely known in the present day that population growth and drought make unrestricted water access impractical, such a right should no longer exist because the justification in the absolute clause no longer possesses its initial truth value.
So when it comes to the Second Amendment, “the right of the people to keep and bear Arms” depends on whether or not society as a whole regards a citizen militia as “being necessary to the security of a free state.” Because the general public clearly doesn’t, the right to bear arms, whatever it means, should no longer be protected by the Second Amendment. In other words, to answer the headline question, the Second Amendment doesn’t seem to protect anything at all!
Of course, a number of academics disagree with this. Among them is Nelson Lund, a law professor at George Mason University, who believes that the truth value of the absolute clause is generally irrelevant to the legitimacy of the operative clause. He equates this to a school dean who cancels class, claiming that the teacher is sick. According to Lund, regardless of whether or not the teacher is actually sick, the cancellation stands:
“Suppose that a dean announces: "The teacher being ill, class is cancelled." Nothing about the dean's prefatory statement, including its truth or falsity, can qualify or modify the operative command. If the teacher called in sick to watch a ball game, the cancellation of the class remains unaffected. If the dean was secretly diverting the teacher to work on a special project, the class is still cancelled. If someone misunderstood a phone message, and inadvertently misled the dean into thinking the teacher would be absent, the dean's order is not thereby modified. The Second Amendment's grammatical structure is identical, and so are the consequences.”
Kaplan believes this is an oversimplification. The teacher could indeed be faking his illness, or the dean could be lying to the teacher’s students, but as long as the students continue to believe that the teacher is ill, the truth value of the conditioning absolute, “The teacher being ill,” persists amongst the students, validating the fact that “class is cancelled.” Were the teacher to be subsequently seen by the students before class looking ready to teach, Kaplan claims that the students would probably believe that class would be held after all, in the same way that the outdated city ordinance would no longer apply after significant environmental changes.
Eugene Volokh, a law professor at UCLA, is another academic who sees things differently. In a 1998 law review article, he argues—similarly to Lund—that the justification in the Second Amendment’s prefatory clause is only loosely related to operative clause. Because of this, its contemporary unsoundness doesn’t invalidate the right to keep and bear arms. Volokh believes the absolute was a political platitude meant to garner support, and that it was only one of several justifications for the right at the time.
Kaplan argues that this criticism is largely irrelevant, as it violates both linguistic and textualist modes of interpretation. As mentioned above, a textualist minimizes his reliance on extra-statutory sources to the greatest extent possible, so basing an interpretation on claims that the Framers had several justifications in mind, but provided only one, can be rejected on its face. Additionally, on linguistic grounds, reading a conditioning absolute out of a sentence is a contradiction that violates Gricean relevance, which holds (reasonably) that all components of a statute are relevant to its interpretation. Volokh’s implicit logic is as follows:
“A well-regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed, but the reason for the people to keep and bear arms is not that a well-regulated militia is necessary for the security of a free state.”
Grotesque.
While I think it’s fair to say that Kaplan gets the best of both Lund and Volokh in this particular debate, his analysis of their positions does raise some interesting questions about his interpretive philosophy. Like, for example, what should happen if a statute’s absolute clause is widely regarded as false, but a new consensus emerges that justifies the initial conclusion?
Take the city water ordinance, for example. Assume that instead of being written in the way Kaplan provides, it reads: “Water being an unlimited resource, property owners shall have an unrestricted right to irrigate their property as they see fit.” Further assume that in the present day, it becomes widely known that water is a finite resource, rather than an unlimited one. This invalidates the absolute. However, let’s say that due to spontaneous climate change, average annual precipitation in the town increases tenfold, actually making it feasible for all of the local property owners to “irrigate their property as they see fit.” In this case, would it still be necessary to scrap the original statute and adopt a new one for the right to persist, or could the original wording remain? Kaplan’s reasoning suggests the need for change, but doing so seems rather anal and cumbersome.
Let’s get back to gun rights. Assume that, as discussed, the vast majority of Americans no longer believes that a citizen militia is necessary for national defense. However, what if 50 years from now, due to a tenfold increase in the crime rate, the belief that “possession of arms, being necessary for self-defense” has near-unanimous assent. This fits in perfectly with “the right of the people to keep and bear arms.”
If the Heller case were to happen 50 years from now, a textualist judge, armed with the reasoning we’ve discussed, would seemingly have to conclude that the Second Amendment doesn’t protect an individual’s right to keep and bear arms, despite the fact that the new common ground perfectly justifies the original conclusion. Does this really make sense?
Maybe when you’re dealing with a subject as inherently squishy and complex as linguistics, an operable framework inevitably comes with the occasional bit of irrationality.
