Legal Blog Watch confirms what I’ve suspected ever since a group of linguists filed that embarassingly silly brief in Heller, namely, that someone would over-interpret their reference to the justification clause of the Second Amendment as an “absolute.” Almost on cue, John McIntyre of the Baltimore Sun writes:
The opening phrase of the amendment, “A well regulated Militia, being necessary to the security of a free State,” is, as Dennis Baron points out, an absolute, a phrase governing the rest of the sentence. Or so Mr. Madison would have understood it. The right to bear arms therefore has a direct connection to the establishment of a militia.
[Link in original.]
So, if the militia clause is an “absolute,” that must end the eternal debate right there! Right? Well, maybe not. As Bill Clinton knows all too well, it all depends on what the meaning of “is” (or, in this case, its participial form “being”) is. “Absolute” may be a strong sounding word to most people, but to a linguist, all it means is that the verb of a clause takes the form of a participle (or, in some cases, is omitted altogether) rather than being declined to agree with its grammatical subject. In other words, if the main verb of a clause is “being,” it’s an absolute clause. If the main verb is “is,” it isn’t. Does anyone, including the “absolutists” espousing this theory, honestly believe that this:
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.
would, should or even could be construed any differently from this:
Given that a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.