2nd Amendment, 3rd Comma

In the Second Amendment, the phrase "the right to keep and bear arms" gets all the attention. Whose right? Is this the right for a militia or is it for the general public?

In a 2008 Supreme Court case, District of Columbia v. Heller, the late Anthony Scalia, speaking for the narrow majority, determined that bear arms refers to personal possession; if the right was meant for militias, the phrase would have been "bear arms against," he says.

It turns out that Scalia didn't have very complete data on the matter and got it wrong. The phrase "bearing arms" was primarily used for military. But then, Stevens's minority opinion also apparently had some data wrong. Goes to show the high court is not supremely qualified—and shouldn't be expected to be. (They get points for trying; let's hold them to that, at least.)

The Second Amendment is puzzling, but I assumed we could leave it to experts in the law to figure it out. Now that I know they get it wrong, I'll venture to speak up. My complaint is grammar related.

Here's the amendment in full: “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.”

Never mind the arbitrary capitalization, the third comma is the real troublemaker. Awkward as it is, if it were missing, the amendment would clearly be ungrammatical unless you also got rid of the first comma. Then it would read: “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.”

This is how Scalia reads it, according to the opinion he submitted for the majority of the court. He disposes of two out of three commas. But this interpretation means that people should be allowed to keep and bear arms because militias are necessary for security. Grammatically, this version ties the right to bear arms to the  necessity of a militia, which at the time was all we had for a military. But Scalia deflects the contextual purpose and resorts to his flawed historical phrase analysis to reach his preferred conclusion.

While he assumes that the amendment means what it would mean if it were written with a single comma, he doesn't admit the mistake. He might have provided historical evidence that people of that era commonly put an arbitrary comma in the middle of a clause that, in his opinion, definitely should not have one. He believes the writers made a mistake and he should have addressed this. But I suspect he sees danger in pointing out errors in the Second Amendment.

What to do with those two extra commas?

We could get rid of the second comma and keep the first and the third. Now we have: “A well regulated Militia, being necessary to the security of a free State [and to] the right of the people to keep and bear Arms, shall not be infringed.”

Now the amendment says it is a militia, rather than the right of people to bear arms, that must not be infringed. This way, the militia is primary:

• The militia is necessary for security
• The militia protects the right of the people to keep and bear arms
• The militia shall not be infringed

This may be a stronger argument for the right to bear arms than the first version. But the second comma is there, and it's hard to argue that this is what the authors meant. It is also hard to imagine the logic of a militia being necessary for the purpose of bearing arms, rather than the other way around. Come to think of it, though, that does seem to be a primary purpose of the Michigan Militia and similar organizations. Whether these are well regulated is another question.

But we still haven't gotten to what the amendment means the way it is written. That's the problem, of course. Or maybe the problem is that they didn't employ a proper editor.

Grammatically, the second clause, "being necessary to the security of a free State" modifies "A well regulated Militia." I think it is participial, but the to-be verb is tricky, and some grammarians might disagree.* Some might say that "being necessary" is an adjectival phrase, a compound adjective, modifying Militia; you could do without "being" and it would mean the same thing. Just substitute "which is" for "being." At any rate, the second phrase clearly modifies the first.

But then comes the key third phrase, "The right of the people to keep and bear arms." What is it doing grammatically? If the commas have any significance, this looks like an appositive, a noun phrase that further identifies, or parallels, its predecessor. It is doubtful that it refers to the entire second phrase, because that is just a modifier of the first phrase. So it could be parallel to:

• the security of a free State
• a free State (this one seems a stretch)
• A well regulated Militia

Any of these elevates the right to bear arms to being essential to a free State. But it no longer decrees that the right shall not be infringed. It is the militia that should not be infringed. And it is not clear that the right is unequivocally for the general public.

An interpretation of this amendment with "the right of the people to bear arms" being an appositive is still grammatically awkward, but it's the only grammatical option I can see, unless you agree to throw out commas. Some judges may throw out commas as readily as they throw someone out of the courtroom or into jail. We grammarians take issue when the comma is innocent.

Majority opinion: The right to dispose of inconvenient commas shall not be infringed!
M(inorit)y opinion: The right to retain and respect commas shall not be infringed!

In Scalia's opinion, it is the right to keep and bear arms outside of a militia that should not be infringed. Well, he sort of believes this. He explicitly states that it is not unlimited. Rather, it should be limited, or infringed, only in the ways he and others of like mind think it should, but not in the way that the District of Columbia thinks it should.

It strikes me that security is the primary issue in this amendment. If a high incidence of homicides and suicides can be tied to the prevalence of handguns in the US, then what provides the most security? If more guns result in more violence, then it would seem that restrictions are in order for the security of a free State.

We could, I suppose, also address the issue of infringed rights when it comes to research on gun violence. Ah, you say, government funding is allowed for this research. But, if that research indicates that gun control would be advantageous, then it cannot be published. Go figure. And then step back and re-read the First Amendment.

*I welcome input and argument from grammarians!