Law/Crime

CLAUSE AND EFFECT:

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.

PEACEKEEPER IN THE VALLEY:

Big Game: Colorado’s San Luis Valley was a wildlife poacher’s paradise: Then an undercover federal agent arrived. (Nick Davidson, May 2026, The Atavist)

Morrison had worked in wildlife law enforcement for a decade, beginning as a state game warden in Ohio, where he grew up. From March to December, he checked anglers’ licenses and chased night hunters jacklighting deer—an illegal tactic that blinds animals for easier killing. When the Ohio Division of Wildlife required a covert operator to infiltrate a poaching ring in the Appalachian Mountains, Morrison jumped at the opportunity. He found that he had a knack for going undercover, and in 1984, the Fish and Wildlife Service hired him as a federal investigator. He spent the next nine months on Long Island, New York, casing duck hunters, scallop boats, and taxidermists who illegally stuffed migratory birds.

Then he got a call from Terry Grosz, who offered him a position in the Rocky Mountains. Grosz was a burly, no-nonsense special agent who oversaw a network of two dozen operatives covering eight states. Morrison had long dreamed of living in rugged country. He packed his pickup and drove west.

Not long into the job, Grosz called Morrison into his office at Fish and Wildlife’s Denver headquarters. Morrison was in his early thirties at the time, with tousled blond hair, dark blue eyes, and a Sam Elliott voice. (Grosz later described him in a book as a “tall, muscular drink of water with not more than four percent body fat on his lean six-foot, five-inch frame,” who moved “with the deliberate energy and practiced smoothness of an anaconda.”) Morrison had already initiated three covert investigations in the Rockies. In one he posed as a woodcutter working for an outfitter who poached bighorn sheep at a remote hunting camp in Wyoming’s Wind River Range. In another he made backroom deals with a Korean sex trafficker peddling black market bear parts in Colorado. These were worthy projects, and Grosz was pleased with their progress. But he had called Morrison with a special assignment in mind.

A swaggering lawman with a cowboy sensibility and a soft spot for what he called “the poor critters,” Grosz took personal offense at the illegal slaughter of animals in his domain. He was especially peeved about the situation in the San Luis Valley, some two hundred miles south of Denver.

REGARDLESS:

The Supreme Court’s Tariff Ruling Shows Conservativism at Work: Chief Justice John Roberts’s long campaign against unilateral executive control of the economy continues—regardless of who’s in the White House. (Judge Glock, Feb 20 2026, City Journal)

For the past year, the liberal commentariat has decried the Supreme Court for being just an adjunct of the Trump administration. The Brennan Center for Justice argued that, despite the nation’s “democratic backsliding” under Trump, the Court “keeps ruling in Trump’s favor.” Noted legal scholar Kate Shaw said on a New York Times podcast that the Court’s conservatives “really are just partisan justices in support of Donald Trump.” Shaw and others on the Left have advocated for radical court reform, which for some included court-packing, to force it to support their version of American democracy.

The argument that the Supreme Court kowtowed to whatever President Trump wanted was foolish before, and became insupportable after, Friday’s announcement of the decision in Learning Resources v. Trump, which overturned the most important part of Trump’s tariffs policy.

MORE THAN A FEELING:

How New York City Got Safe: A historical reconstruction of the Big Apple’s crime decline, told from inside the institutions responsible for public safety. (Michael Javen Fortner, January 1, 2026, Washington Monthly)

Bill Bratton—who, as transit police chief, launched a “broken windows” strategy on the subway in 1990—told Moskos that he embraced the approach because whenever he went into communities, he “heard people complaining about broken windows.” “Even in the most crime-ridden neighborhoods—they used to complain about crime, certainly—but what I came to understand was that everyday people were seeing this crazy city and what a mess that was,” Bratton said.

It is tempting to dismiss statements like this as self-serving, post hoc justification. But the survey evidence tells a strikingly similar story. A 1979 survey of residents in Harlem and the South Bronx underscores just how central quality-of-life concerns—both physical decay and behavioral disorder—were to the city’s most marginalized communities. The single most frequently cited problem was bad or slum housing (29 percent), followed closely by drugs (25 percent) and crime and criminals (22 percent). In Harlem, these anxieties were sharper still: 32 percent identified bad housing as the top concern, 29 percent pointed to drugs, and 23 percent referred to crime. Beneath these headline categories sat a dense layer of everyday disorder. Robberies and muggings were cited by 12 percent of respondents citywide (15 percent in the Bronx), abandoned or burned-out housing by 11 percent overall (15 percent in the Bronx), and juvenile delinquency by 7 percent. Smaller but still telling shares pointed to littered streets (6 percent), vandalism (4 percent), lack of sanitation (4 percent), public drunkenness (2 percent), and fires (3 percent overall, rising to 6 percent in the Bronx)—the very conditions that made public space feel unstable and threatening.

Nearly a decade later, these concerns had not abated. Even as homicide rates continued to climb, a 1988 survey of New York State residents commissioned by the state’s Division of Criminal Justice Services revealed the persistence—and salience—of quality-of-life anxieties. Nearly three-fifths of residents reported that their neighborhoods suffered from at least one “quality of life” problem: rowdy youth, homeless people, or crumbling buildings. Almost half complained about disorderly teenagers; nearly a third cited problems with homeless people; another third pointed to physical decay. As these problems accumulated, fear spiked. Only about one in 10 residents of trouble-free neighborhoods reported feeling unsafe out alone at night; among those living amid two or three major problems, that figure rose to nearly 60 percent.

Taken together, these numbers tell a story that crime rates alone cannot. Residents did not draw neat distinctions between “serious crime” and “minor disorder”; they experienced both as part of a single moral and environmental unraveling. The persistence of concerns about dirty streets, abandoned buildings, vandalism, and insufficient police protection—often registering in double-digit shares in the hardest-hit neighborhoods—helps explain why order maintenance policing resonated so deeply with the public. Fear was not produced by violence alone, but by the steady accumulation of visible signals that no one was in charge and by unwanted encounters with “disreputable,” “obstreperous,” or “unpredictable” individuals, including “rowdy teenagers,” drug users, and the homeless. In this view, “safety”—or at least the perception of it—was secured as much through the removal of these perceived threats as through declining crime rates. That, at least, is a key claim Moskos’s book presses with unusual force.

One of Moskos’s interviewees, Steve Hill, a transit cop, gets to the heart of the matter with disarming clarity. Order maintenance, he explains, was “more about acknowledging the things that made people feel unsafe,” even if “the violent predators are still going to be out there shooting and killing people.” It sounds like a concession, but it is the opposite. Hill is insisting that reducing fear, reclaiming public space, and pushing back disorder matter in their own right—not because they shave a few points off homicide rates, but because they reshape how ordinary New Yorkers experience the city.

Hill’s stories make that point concrete. He recalls a morning train disrupted by a homeless man “pissing,” shouting, and driving passengers “crazy,” until an officer seized the moment—“‘This is your stop, buddy.’ Boom!”—and threw him onto the platform. “No paperwork,” Hill notes, and as the doors closed “the entire train applauded.” The applause is key. It captures a public worn down by daily disorder and viscerally grateful when someone finally intervened. Elsewhere, Hill recalls how riders at Utica Avenue during rush hour were “happy to see” an officer in uniform. For every person who cursed or spit, he observed, “ten others will appreciate you being here.” What people valued was not abstract crime control, but the simple assurance that they could sit on a train without worrying about “somebody crazy walking up on them, spitting or littering or urinating or defecating.”

AWKWARD:

The Anatomy of Constitutional Despair: a review of We the People by Jill Lepore (Paul Moreno, 9/29/25, Law & Liberty)

FDR’s New Deal seized up in 1937, after his attack on the Supreme Court, his own recession, and his attempt to “purge” his own party. But for a while—from the 1940s through the 1960s—liberals espied a solution: get control of the Supreme Court, which had become a “continual constitutional convention.” But the route of judicial advancement of liberal goals stalled and even reversed sometimes (though it occasionally advanced) after 1969, and the Trump-packing of the Court has caused them to add “judicial supremacy” to their litany of complaints about the dysfunction of the Constitution.

Live by the gavel…

BREAKING THE ADMINISTRATIVE STATE IS PROGRESS:

Abundance Liberalism versus Adversarial Legalism (Thomas F. Burke & Jeb Barnes, Fall 2025, National Affairs)

For decades, liberals embraced lawsuits, legal rights, and judicial policymaking as means of driving social change and holding powerful interests to account. But recent years have seen second thoughts proliferate, especially among proponents of abundance liberalism, the movement to unleash the power of both government and the private sector to supply essential goods and services. Abundance liberals from Ezra Klein and Derek Thompson to Jennifer Pahlka have embraced law professor Nicholas Bagley’s argument from a 2019 article, “The Procedural Fetish,” that liberal-backed rules intended to make executive-branch policymaking more open, transparent, and accountable have become a major barrier to progressive change.

Bagley’s widely cited article showed how liberals’ unexamined dedication to “proceduralism” has handicapped state capacity. His examples come mostly from his specialty, administrative law, where major new initiatives must run a gauntlet of procedural hurdles, many of them erected by the left, before they can take effect. As Bagley noted, a long tradition of research in law and political science has examined and critiqued the effects of those hurdles, but this work is “absent entirely from the political conversation and relegated to the sidelines of the academic debate.”

We are all Gorsuchian now.

“WOMB-TO-TOMB” (profanity alert):

The Return of Superfly (Mark Jacobson, 8/14/2000, New York)

It was a matter of control, and trust. As the leader of the heroin-dealing ring called the Country Boys, Lucas, older brother to Ezell, Vernon Lee, John Paul, Larry, and Leevan Lucas, was known for restricting his operation to blood relatives and others from his rural North Carolina area hometown. This was because, Lucas says, in his down-home creak of a voice, “a country boy, he ain’t hip … he’s not used to big cars, fancy ladies, and diamond rings. He’ll be loyal to you. A country boy, you can give him any amount of money. His wife and kids might be hungry, and he’ll never touch your stuff until he checks with you. City boys ain’t like that. A city boy will take your last dime, look you in the face, and swear he ain’t got it … You don’t want a city boy — the sonofabitch is just no good.”