The Gun Case: Eight Misses

This term, Chief Justice Roberts misquoted Bob Dylan, and Justice Kennedy ignored military death-penalty law. But if you want even more ammunition against the Court, I’ll share eight writing errors in the gun-ban opinion and dissents.

The Scalia Opinion

1. Most surprising grammar error from a known grammarian

This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”).¹

“Positively suggests” properly introduces “that the Second Amendment,” but “not only consistent with” does not. You can’t very well say that “this holding is consistent with that the Second Amendment confers . . . .” This error is common in all such “double trouble” constructions, as I call them. Often, as here, only the second element of the pair works with the phrase that follows.

2. Most surprising violation of a traditional grammar rule by a known traditionalist

Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service.²

Many usage experts would require “whom” here, not “that,” because “scholar” is human.

3. Most confusing use of this

Congress is given the power to “provide for calling forth the militia” and the power not to create, but to “organiz[e]” it—and not to organize “a” militia, which is what one would expect if the militia were to be a federal creation, but to organize “the” militia, connoting a body already in existence. This is fully consistent with the ordinary definition of the militia as all able-bodied men.³

A good rule: Never start a sentence with “this” unless you follow it with a noun. The reader often has no idea what “this” means.

4. Most curious misquotation of Justice Stevens’s dissent

JUSTICE STEVENS can say again and again that Miller did “not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns,” but the words of the opinion prove otherwise.⁴

The phrase “it turned” begins an independent clause, so it should follow a semi-colon. Although Justice Scalia suggests that Justice Stevens had a comma splice here instead, the quotation is wrong.

The Stevens and Breyer Dissents

1. Most jarring subject-verb mismatch

Stevens: The parallels between the Second Amendment and these state declarations, and the Second Amendment’s omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time.⁵

Because “parallels” is the subject of the sentence, Justice Stevens should have written “are especially striking,” not “is.” Watch for this common mistake when compound phrases or subordinate clauses separate your subject and verb.

2. Faultiest parallel

Breyer: Any answer would take account both of the statute’s effects upon the competing interests and the existence of any clearly superior less restrictive alternative.⁶

Here, Justice Breyer used “of” after “both,” so he would need it after “and” as well to avoid a faulty parallel. One solution: Put “of” before “both” so each clause starts with a noun: “take account of both the statute’s effects . . . and the existence . . . .” Even better: “Any answer would consider both the statute’s effects . . . and the existence . . . .”

3. Biggest confusion between amount and number

Breyer: A disproportionate amount of violent and property crimes occur in urban areas, and urban criminals are more likely than other offenders to use a firearm during the commission of a violent crime.⁷

Crimes are countable, so Justice Breyer needed “number,” not “amount.” The word “disproportionate” doesn’t change the grammar here: The point is that the number of crimes in urban areas is disproportionate to the number of people in urban areas.

4. Most underreported reason Justice Kennedy failed to join the four dissenters

Breyer: Boston’s law in particular impacted the use of firearms in the home very much as the District’s law does today.⁸

Breyer: That the District law impacts self-defense merely raises questions about the law’s constitutionality.⁹

In using “impact” as a verb rather than a noun, Justice Breyer will provoke many traditionalists. Unfortunately, one of those traditionalists is Justice Kennedy, who said in a recent interview that he dislikes this use:

I do not like nouns that are turned into verbs . . . . Impact. “This impacts our decision.” Impact is a noun. And it seems, to me, trendy. I don’t like trendy words.¹⁰

The Gun Case: Eight Hits

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1. District of Columbia v. Heller, No. 07-290, 2008 WL 2520816, *26 (U.S. June 26, 2008).
2. Id. at 23.
3. Id. at 12.
4. Id. at 23.
5. Id. at 35.
6. Id. at 57.
7. Id. at 63.
8. Id. at 54.
9. Id. at 56.
10. Interview by Bryan Garner with Hon. Anthony Kennedy, Associate Justice, U.S. Supreme Court, in Washington, D.C. (2006-2007).