Absolute constructions also aren’t grammatical fossils irrelevant to current English. We still use sentences today that contain free-floating absolutes to modify verbs in the same way as in the Second Amendment, through phrases such as “all things being equal,” “everything being considered,” “weather permitting,” “God willing,” “that being the case.” Here’s another example of an absolute construction defining the reason and occasion for an action: “The first draft of the Second Amendment being repetitive and clunky, James Madison revised it.”
Here’s Madison’s first draft: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” In his revision, Madison created a more precise, elegant sentence, comprised of an absolute construction and an independent clause, to become the Second Amendment as we now know it. The grammar of the amendment is clear in both its original and current meaning. What becomes unclear are multiple legal and historical interpretations spawned by rephrasing the amendment.
In his literary analysis, Scalia failed to recognize the grammatical construction of the amendment. The words on the page don’t guarantee citizens an individual right to gun ownership. They say nothing about a protected right to keep guns at home or in the street for self-defense. In 1791, the grammar of the amendment would be understood to declare the limited circumstance for when and why the right to bear arms can’t be infringed. (I’ll add here an originalist historical note to buttress this textualist reading: in colonial times, members of state militias were expected to supply their own weapons.)
Chief Justice Roberts’s oft-repeated proverb that “the want of a horseshoe nail leads to loss of the kingdom” indicates the process by which an initial mistake can create a disastrous chain of causation. Unfortunately, the want of a correct textual reading of the Second Amendment leads to the disastrous loss of its originalist meaning. As Sister Kathleen Mary might say: the Supreme Court has many powers, but alteration of English grammar isn’t one of them.
— Frank Bergon Guns and Grammar, or How to Diagram the Second Amendment
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