The ‘Strange’ Syntax of the Second Amendment ( Kari Sullivan, 7/14/21, Duke Center for Firearms Law)
In order to understand a syntactic construction that we no longer use, we have to look at historical examples of the construction. A good resource for this is a balanced historical corpus, that is, a collection of texts from a particular timespan and region that consists of a balanced mix of personal letters, newspapers, scientific treatises, religious texts and so forth. These corpora are intended to provide an idea of general usage at particular times and places. Relevant balanced corpora for studying the Second Amendment include COHA, mentioned previously, or A Representative Corpus of Historical English Registers (ARCHER; 3.3 million words, 1600—1999). These corpora can tell us how being-clauses changed over time. They can also show how being-clauses were used, so that modern readers have a better idea of how this grammatical construction shapes the meaning of the Second Amendment.
For the moment, let us consider only being-clauses with the basic structure of the Second Amendment, in which the being-clause precedes the main clause and has a different subject. (A wider range of being-clauses is examined in my paper “Being-clauses in historical corpora and the U.S. Second Amendment”.) Being-clauses of this type have had four possible meanings, several of which could overlap. First, they could signal that the event in the being-clause happened before the main clause event, as in this example from 1723: The morning being come and breakfast over, Stertorius’s coach was brought. That is, after morning came and breakfast was over, the coach was brought. This is called a temporal usage. It is the earliest kind of being-clause, and gave rise to the second and third types.
The second use of being-clauses, the conditional, has always been rare. Conditional being-clauses were used to make predictions, as in the following example from 1786: These things being granted what is of a like kind will readily be so disposed too. If the ‘things’ (atmospheric conditions) occur, then ‘what is of a like kind’ (condensation) is predicted to behave in a particular way. Temporal and conditional meanings can overlap, as in the last two clauses in this 1833 example: Increase the amount of Bank notes, and, other things being the same, prices will rise. Whenever other things are the same, this statement claims, prices will rise (a temporal meaning); and if things are the same, prices will rise (a conditional meaning). These clauses are related temporally and conditionally, and the temporal and conditional meanings are completely compatible.
The third use of being-clauses also evolved from temporals, and could likewise overlap with them. These being-clauses signalled real-world causation, as in this sentence from 1780: The usual passages for the waters below being obstructed, they flooded the low grounds. That is, flooding occurred because the passages were obstructed. This is an external causal because it refers to a cause and a consequence in the real world. It’s important to note that an external causal relation frequently assumes a temporal one. In the above example, the flooding happens because of the obstruction (a causal relation) but also happens at the time of the obstruction (a temporal relation), so both causal and temporal relations are present, and are compatible with each other.
The fourth type of meaning is an internal causal, where the being-clause provides the logical basis, not the real-world cause, for the main clause, as in this example from 1702: The words in the will being to Richard and the heirs of his body, the heirs were in that will only words of limitation, and not of purchase. Here, the being-clause gives the reason for concluding the status of the heirs stated in the main clause. The main clause could be paraphrased by it was concluded that the heirs were in that will only words of limitation, and not of purchase. An external causal can never be paraphrased this way, and it was concluded that the waters flooded the low grounds would make no sense in the external causal above.
If we assume that the Second Amendment was grammatical, then its being-clause belonged to one of these four types or a documented area of overlap between them. The temporal reading would indicate that whenever “A well regulated Militia” is “necessary to the security of a free State”, then “the right of the people to keep and bear Arms, shall not be infringed.” A conditional interpretation would entail that if “A well regulated Militia” is ever “necessary to the security of a free State”, then “the right of the people to keep and bear Arms, shall not be infringed.” The external causal interpretation would mean that “the right of the people to keep and bear Arms, shall not be infringed” for the purpose of “A well regulated Militia … necessary to the security of a free State”. The internal causal would indicate that because it is known that “A well regulated Militia” is “necessary to the security of a free State”, it is concluded that “the right of the people to keep and bear Arms, shall not be infringed”.
The temporal, external causal, and internal causal readings are not equally likely. The ARCHER corpus, for example, contains 37 being-clauses of the relevant type from the second half of the 18th century. Of these, 18 have purely temporal meanings without conditional or causal inferences; 1 is a conditional; 19 have external causal meanings; and there are no internal causals. Statistically, then, the temporal and external causal interpretations of the Second Amendment are the most probable.
In the context of the Second Amendment, these two interpretations are not incompatible. We have seen that external causal meanings often assume temporal ones, since effects usually happen along with their causes. Both a temporal and a causal reading would assert that “the right of the people to keep and bear Arms, shall not be infringed” whenever a militia was “necessary to the security of a free State”. The causal reading would additionally assert that the “right” was for the purpose of the necessary militia, and therefore applied whenever the militia was necessary.
A temporal or causal relation between the clauses would mean that the main-clause content was temporally or causally contingent on the being-clause content, and “the right of the people to keep and bear Arms, shall not be infringed” would only be asserted when, or for the purpose of, “A well regulated Militia being necessary to the security of a free State”. Interpreting the main clause while ignoring the being-clause would be nonsensical, and certainly contrary to the original intent or understanding of the two clauses.