If , as John Lawler says, orthography is not part of language, how can these commas interfere with today's discussion about gun control?

Question

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.

I read an interesting article on The New York Times regarding the punctuation used in the amendment above, which today interfere with gun rights and gun control discussions.

Below I quote what I read in reference to what I'm interested to.

Nelson Lund, a professor of law at George Mason University, argues that everything before the second comma is an “absolute phrase” and, therefore, does not modify anything in the main clause. Professor Lund states that the Second Amendment “has exactly the same meaning that it would have if the preamble had been omitted.”

But, according to the journalist, Professor Lund is correct that the clause about a well-regulated militia is “absolute,” but only in the sense that it is grammatically independent of the main clause, not that it is logically unrelated. To the contrary, absolute clauses typically provide a causal or temporal context for the main clause.

Question is: Under a grammatical perspective is it correct to say that "absolute clauses typically provide a causal or temporal context for the main clause," so that eventually it is untrue that the Second Amendment "has exactly the same meaning that it would have if the preamble had been omitted.”?

Answer 1

From a linguistic and literary point of view, Prof. Lund's position is wholly absurd. It amounts to saying that the clause in question has no connection at all with what follows, which immediately raises the question "What's it doing there, then?" In literary studies, and in ordinary personal intercourse, too, one always assumes that what is written means something, though it may be difficult to say exactly what.

From a legal point of view, however, Prof. Lund may be right. Lawyers write in a dialect of their own, and it is not unknown for courts to hold that this provision or that is for whatever reason "of no force" in a legal context. (For instance, it was at one time held by British courts that in wills punctuation had no meaning whatever.) And under US law (unlike literature) there is a final authority: a legal provision means what SCOTUS (the Supreme Court of the United States) says it means, and nothing else—until, of course, a later Court says it means something else.

To my mind, what the clause meant can be probably be pretty accurately determined by exhaustive analysis of similar clauses in similar contexts of the same period from communities governed by similar laws. But what it meant when the Bill of Rights was adopted is of no interest to anyone but scholars; it is now a political question, and what it "means" today is a matter of what axe you have to grind.

Answer 2

Let me try to answer this without getting into a discussion of my own opinions about gun control. :-)

To an extent I'll agree with StoneyB: If the words have no meaning, than why did the writers put them there? But judges will sometimes declare that some of the text in a legal document is what is legally called "surplusage", that is, words that have no effect on the legal interpretation.

In context, the text up to the word "State" is clearly intended -- clearly to me, anyway -- to be an explanation of why this rule is and should be included in the Constitution. Legislators often include such statements of "legislative intent" in laws. Of themselves they do not directly affect the interpretation of the law, but they are intended to help judges interpret the law by explaining the purpose. Judges often turn to such statements of legislative intent to resolve ambiguities.

To make a deliberately slightly-silly example, suppose a legislature passed a law creating a tax on gas. If the law simply said, "There will be a 10% tax on the sale price of all gas sold in the United States", someone might legitimately question whether this was intended to be a tax on chemicals sold which are in a vapor state, or on gasoline. So a statement of legislative intent that said, "so as to fund highway repair" would be a strong clue that they meant gasoline. A statement that it was to "fund research into construction of more reliable air-tight containers" would imply that it was on vapors.

As to your more general question, I would think that punctuation clearly can alter the meaning of a sentence and any rational judge, politician whatever should take it into account. There was a classic example many years ago -- umm, 1980 maybe? -- where the Republican Party was preparing a statement of their positions on various issues that included the sentence -- not necessarily quoting exactly here, I'm quoting from memory 30 years after the fact -- "We are opposed to any tax increase which would hurt economic recovery." And someone on the committee proposed an amendment to add a comma after the word "increase", changing it to, "We are opposed to any tax increase, which would hurt economic recovery." This change would transform the second part of the sentence from a limiting clause to an explanatory clause. That is, it dramatically changed the meaning of the sentence, from saying that any proposed tax increase should be carefully examined to see whether it would hurt the economy, to saying that any tax increase should be automatically ruled out. The comma was not at all superfluous!

Answer 3

Rather than address the contentious political writing, I'll address the hypothesis. Is orthography language or isn't it?

In one sense there is the trivial 'of course they're not the same' since one is a transient physical expression the other a permanent visual representation of the former (that was worded specifically to put things like sign language with voice and ear, and separate this from handwriting, typing and Braille).

But, you might say, that's not what is meant! Sure, orthography is intended to be a faithful representation. A comma represents a pause, a semi colon a longer one, a period an even longer one and moreso a stopping point. So what if there are spelling rules with exceptions and those themselves have exceptions (especially in English).

But there it is, is writing really that faithful to spoken language?

• where are the orthographic rules for intonation? for accent? for articulation (IPA, as a standard, tries, but it just can't cover everything)

• Orthography rules, when they are particular to orthography, are nowhere near as complex as the rules that they come close to mapping to in spoken language.

• entirely different brain areas are involved in processing. Broca's and Wernicke's areas are used in speech processing (for production and understanding respectively). And for handwriting, the fusiform gyrus

• language would exist without writing, but writing would not exist without language.

Writing is a pretty good representation of language, but they are not the same thing.