“the right of the people to keep and bear arms SHALL NOT be infringed”, is more absolute , grammatically and legally, (the Constitution being ‘the Supreme Law of the Land’) than “A well regulated militia being necessary to the security of a free state.”
In any case, the Preamble to the Bill of Rights makes clear that the original articles (amendments) were declarations concerning certain rights the people have, and of restrictions on government power over those rights., not the other way around.
“THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”
The Grammarian Professor is being disingenuous at best – and I’m being quite generous – when he states he “…simply wants the law based on a proper grammatical understanding.”
He is advocating for the side that wants restrictive government power over a fundamental right and he’s conceited enough to have believed he’s got a perfect answer on how to do it.
Jim Vanden Bosch didn’t expect the Second Amendment to dominate his life and research time.
Vanden Bosch, a retired professor of English at Calvin University in Grand Rapids, calls his many hours of labor on the grammar of the much-debated Constitutional right, “a social and civic obligation.”
“I’m just a blue-collar kid from Zeeland,” Vanden Bosch said, “but I have become well-versed on the grammar of the absolute phrase in the late 18th century.”
An absolute phrase modifies the entire clause that it belongs to. The phrase typically provides additional detail to that clause.
And, he notes, perhaps the most famous absolute phrase in American history begins the Second Amendment.
While the Second Amendment begins with an absolute phrase—“A well regulated Militia, being necessary to the security of a free State…”—it is the second half of the amendment, the main clause, that gets most of the media, political and legislative attention: “…the right of the people to keep and bear Arms, shall not be infringed.”
In Vanden Bosch’s view, the debate over the meaning of the Second Amendment hinges entirely on what one does with that absolute phrase. The temptation to dive into the controversy proved irresistible.
“I’d been working on absolute phrases for over a decade,” he said. “It has been a major area of my academic research through most of the last decade.”
Vanden Bosch’s quest to understand the grammatical structure, and hence the meaning, of the Second Amendment began in late 2014 while he was sitting at his kitchen table reading the landmark 5-4 Supreme Court decision on gun legislation in the 2008 District of Columbia v. Heller case, written by Justice Antonin Scalia.
In that decision, Scalia wrote: “The Amendment’s prefatory clause announces a purpose but does not limit or expand the scope of the second part, the operative clause.”
The grammarian’s hackles were raised. How, Vanden Bosch thought, did Justice Scalia come to such a conclusion regarding the grammar of this importance sentence?
And so began an amazing grammatical adventure, spanning the last five years.
“That sentence in the ruling struck me as untenable from a grammatical point of view, but I’m not a person who rushes to public judgment,” said Vanden Bosch. “The grammar and meaning of such a phrase is my academic territory, but I wanted to be certain and do good research and analysis.”
Vanden Bosch is a practitioner of corpus linguistics, which is a subfield of linguistics that uses corpora (or samples) of text from the history of the written language to determine meaning. With today’s technology, billions of words have now been catalogued in databases and can be examined by persons with expertise to extract the words and phrases needed for a particular study.
“I went to London to study the ICE-GB, The International Corpus of English—Great Britain,” said Vanden Bosch. “I had to be trained in how to use the database, and then I could buy a license.”
The humorous side to this work is that the software to examine this database works only with Windows 7—grammarians don’t have the time or money to upgrade the system—and that meant Vanden Bosch had to get an old computer out of mothballs at Calvin University to run the program.
“It is incredible,” he said. “These databases have every written word grammatically marked, every phrase marked, every clause marked. For example, you can run a program to pull out every absolute phrase. That took 250 different formulas.”
There are many corpora he works with from Brigham Young University, including the Corpus of Historical American English and a corpus of U.S. Supreme Court Opinions from 1790 to the present.
Common absolute phrases in the English language are “All things considered,” “God willing,” “Weather permitting,” and “All things being equal.”
Or, in the case of the Second Amendment, “A well regulated militia being necessary for the security of the state.”
In 2017, Vanden Bosch gained access to a new corpus housed at BYU Law School, the Corpus of Founding Era American English (COFEA), a corpus of 133,488,113 words from 119,801 texts published in America between 1765 and 1799—a very large corpus of American English from the precise historical and political context that produced the Second Amendment in 1789. (It was ratified by all the states in 1791.)
In this corpus Vanden Bosch found 295 absolute phrases that shared the basic structure of the absolute phrase at the front of the Second Amendment: all of them are variations on the theme of “something” (a noun or noun substitute) “being necessary.” All of them are connected to a main clause, and they constitute rich evidence that the “something being necessary” absolute construction was quite common during this period, and that it was often used to provide explanatory material for the main clause to which it was attached.
He read Scalia’s 2008 Second Amendment opinion again, which dismissed the importance of the absolute phrase indicated by the words “being necessary.”
“You can’t simply disregard the first part of that sentence,” he said. “The ‘being necessary’ functions as a clarifier for the entire meaning.”
And Vanden Bosch’s assessment is backed up by the use and understanding of the absolute phrase in the common writing of the 1790s, in both popular language and in legal briefs and opinions.
Today, in generally accepted Constitutional law practice, one examines the main clause thoroughly and comes back to the rest of the sentence for clarity if there is ambiguity in the main clause. Of course, Vanden Bosch (along with many others) sees plenty of ambiguity in the phrasing of the Second Amendment, enough ambiguity to demand a careful study of the entire sentence and what was meant when it was written.
“I’m just surprised no one checked Scalia on his grammatical comments in the Heller opinion,” said Vanden Bosch. “There were grammarians involved in the deliberations, but no one was an expert on the absolute phrase.”
Vanden Bosch is that expert. And what he found in his study, using written examples from the era in both Britain and America—including the famous Federalist Papers—is that an absolute phrase using “being” as its key word was in common usage.
“At the time of the writing of the Second Amendment, this type of grammar was typical,” he said. “Understanding this fact should give today’s legislators, courts and voters more courage to insist that interpretations of the amendment should not be wide open.”
Taking the absolute phrase into proper account, the amendment ensures that states could maintain armed militias. It did not comment on an individual’s right to keep any kind of gun in any place at any time.
Vanden Bosch notes that part of the confusion stems from the fact that the absolute phrase as written in the 1790s has faded from common usage today. In his research, the “something being necessary” variety of absolutes dropped in frequency from 200 per million words in the late 18th century to approximately 20 per million words today.
No wonder the Second Amendment’s wording looks strange to readers today.
But—and here’s Vanden Bosch’s point—it wasn’t strange in 1790. And the way the amendment was interpreted in 2008 is very unusual.
“There is a world of difference in interpreting the language of the Second Amendment before and after Scalia’s 2008 opinion,” said Vanden Bosch. “I feel a calling to this project. No one else has done this, and it needs doing.”
He plans to complete the careful documentation of his research and get the grammatical word out: Don’t mess with an absolute phrase!
Will it make any difference? Well, that’s not up to the grammarian and he is not advocating any particular legislation. He simply wants the law based on a proper grammatical understanding.
We the people have responsibilities, too.