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Zeugma Avoidance -- a Canon of Construction:

Rereading D.C. v. Heller, I was struck by the following passage (one paragraph break added):

The phrase "bear Arms" also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: "to serve as a soldier, do military service, fight" or "to wage war." ....

[But] the meaning of "bear arms" that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby "bear arms" connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving "bear Arms" its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war--an absurdity that no commentator has ever endorsed.

Worse still, the phrase "keep and bear Arms" would be incoherent. The word "Arms" would have two different meanings at once: "weapons" (as the object of "keep") and (as the object of "bear") one-half of an idiom. It would be rather like saying "He filled and kicked the bucket" to mean "He filled the bucket and died." Grotesque.

That there's a zeugma you're talking about, Mr. Justice: "the use of a word to modify or govern two or more words when it is appropriate to only one of them or is appropriate to each but in a different way, as in to wage war and peace or On his fishing trip, he caught three trout and a cold." Why didn't you just say so?

I should note that the word "zeugma" appears in Westlaw's Allcases database 20 times -- all of them either in the name Zeugma Corp. or the title of Libert H. Boeynaems, Bishop of Zeugma (and, yes, there is likely a connection to the word, but rather remote).

Related Posts (on one page):

  1. My Favorite Zeugma:
  2. Blegging for Zeugmas:
  3. Zeugma Avoidance -- a Canon of Construction:
Michael B. (mail):
It strikes me that anyone could possibly know this.
11.7.2008 3:43pm
Jonathan F.:
Michael B.: yes -- case in point, me.
11.7.2008 3:49pm
Guest44:
I just checked - Garner's Modern American Usage has a good entry on this.
11.7.2008 3:56pm
Sammy Finkelman (mail):
Keep can't mean anything by itself, so both keep and bear must apply to the same thing. If this meant anyone could have weapons, there would be no distinction between keeping and bearing and you wouldn't need both words.

"Keep" means to store weapons under some form of collective ownership.

"Bear" means to take them out of storage and practice and parade with them and do more, like use them for fighting also of course.

You should look at the text in the Articles of Confederation. (which nobody does because first few people see it, and it never was in the interests of the NRA and its supporters to make the meaning clear)

" ..but every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and equipage."

- Part of Article 6 of the Articles of Confederation adopted by Congress on November 15, 1777 and effective when ratified by the 13th state, Maryland, on March 1, 1781.

This was later superceded by the 1787 Constitution of the United States, which ignored the rules for amendment
contained in the Articles of Confederation.

Now you may note that the Constitution begins with:

"We the People.."

This was not just poetic words. This was the legal justification for ignoring the terms that the Articles of Confederation had for its own amendment.

They were breaking out of it.

This is also the meaning in the Second and Tenth amendments.

Look at the Tenth amendment:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Now a power is an act of government. It is a collective act,
and not an individual right.

The conception clearly here is that sometimes a state can exercise power - but at other times it could also be the "people" - sort of unanimous or clear consent, even if not otherwise within the franmework of pre-existing law.

The law cannot be a straightjacket.

The reason it doesn't say "state" in the second amendment is:

1) To include Vermont (whose status was unsettled in 1789)
and maybe such places as Kentucky and Tennessee.

2) To include situations where ordinary local government has broken down or is not effective. Congress cannot stop people from defending themselves from invasion or insurrection or make that a crime.
11.7.2008 4:01pm
pauldom:
A better term for this construction is syllepsis. Zeugma can be grammatically congruent (e.g., "passion lends them power, time means, to meet"). Syllepsis is incongruent (e.g., Pope's nymph who "stains her honor or her new brocade"). Richard A. Lanham and others consider syllepsis to be a form of zeugma; Arthur Quinn maintains that the two overlap but that a syllepsis need not be a zeugma and vice versa.

Silvae Rhetoricae is a good website for info on rhetorical terms.
11.7.2008 4:10pm
Anonymous Skeptic (mail):
No, no, Eugene. This isn't a zeugma (or syllepsis, depending on which grammarian you're talking to) problem, it's a clarity of meaning problem.

To illustrate the difference, consider your example: "He caught three trout and a cold." There the phrase "caught three trout" has a literal meaning, but the verb *must* forsake its literal meaning to complete the sentence "caught ... a cold." In other words, the use of zeugma is clever because it is clear.

But in the Second Amendment the phrase *need not* become idiomatic to make good sense. Consider the Justice's example: "He filled and kicked the bucket." Although "to kick the bucket" has the idiomatic meaning of "to die," it also has a literal meaning. Thus the use of an idiom is not *necessary* to make the sentence work.

Moreover, another canon of construction suggests the literal reading: noscitur a sociis. In English, this is the commonsense notion that a word must be interpreted in context. This notion especially applies to words in a list, where a word's companions (its "sociis") suggest a particular meaning by comparison. So in the Justice's example, the literal phrase "filled ... the bucket" suggests that the phrase "kicked the bucket" should also be interpreted literally.

Under these circumstances, the reading of the second phrase to be idiomatic is thus not only unnecessary, but unnatural, whether we're discussing the Justice's example or the Second Amendment itself.
11.7.2008 4:26pm
Bobo Linq:
Syllepsis might be a better term than zeugma. The geniuses at Language Log call it WTF Coordination.
11.7.2008 4:36pm
Eugene Volokh (www):
Pauldom: I looked into the syllepsis question before posting, and there is some disagreement. The OED reports that a syllepsis is "A figure by which a word, or a particular form or inflexion of a word, is made to refer to two or more other words in the same sentence, while properly applying to or agreeing with only one of them (e.g. a masc. adj. qualifying two ns., masc. and fem.; a sing. verb serving as predicate to two subjects, sing. and pl.), or applying to them in different senses (e.g. literal and metaphorical)." Dictionary.com, on the other hand, defines syllepsis as "the use of a word or expression to perform two syntactic functions, esp. to modify two or more words of which at least one does not agree in number, case, or gender, as the use of are in Neither he nor we are willing." Since I have in mind a usage in which there's no grammatical disagreement, but simply the presence of two different meanings for the underlying word, I chose "zeugma."

Plus "zeugma" is funnier.
11.7.2008 4:38pm
pauldom:
Zeugma is indeed funnier! Even "WTF Construction" doesn't have the same zing.
11.7.2008 4:59pm
Latinist:
EV and Pauldom: I don't have a source for this, but as I learned it, this (and either of pauldom's examples) would be syllepsis: a zeugma is where the verb only properly applies (in any sense) to one of the nouns, as in Pope's "See Pan with flocks, with fruits Pandora crowned," where Pan can't plausibly be "crowned" with sheep.

Interesting that Pope seems to be such a fruitful source of examples; my three favorite syllepsises (syllepseis?), however, are all found in this song.
11.7.2008 7:05pm
Jeff R.:
As it happens, my favorite Zeugma (originally from Alan Moore's 'Voice of the Fire') is in the general topic of the law:

"He had the courage and sentences of his convictions, both outstanding."
11.7.2008 7:09pm
Michael Drake (mail) (www):
Great words both, though 'zeugma' sounds like something that might require an ointment.
11.7.2008 9:28pm
syllo:
OED defines "bear arms" as "carry firearms." Keep obviously means "possess". The text of the amendment is synonymous with "possess and carry firearms." There were no contortions in the Heller majority opinion. There are no hairs to be split here.
11.7.2008 10:41pm
Peter Shalen:
Of course there's also the line from the commercial for the skin care product in "Putney Swope": "Since my man uses Face-Off he's really out of sight---and so are his pimples."
11.7.2008 10:47pm
Dr. Weevil (mail) (www):
The last bit of this post is not very clear: "there is likely a connection to the word, but rather remote". If that means that zeugma the figure of speech and Zeugma the Syrian city are etymologically related, that is true, and the connection is not all that remote. Zeugma is the Greek word for a 'band' or 'bond' or a bridge made of boats -- anything joined together. The grammatical figure joins two very different things, while the city in Syria was the main crossing-point on the Euphrates in ancient times and was named after the bridge located there.

Though originally Greek, words like 'syllepsis' usually form their plurals the Latin way: axis/axes, basis/bases, synthesis/syntheses, syllepsis/syllepses. Many Greco-Latin words have switched over to English-style plurals, e.g. what were once 'indices' and 'appendices' are now usually 'indexes' and 'appendixes'. But 'axises', 'basises', 'synthesises' (eeeeuw!), and 'syllepsises' sound so repulsive that these words are likely to keep their Latinate plurals.
11.7.2008 11:01pm
einhverfr (mail) (www):
In defence of J. Stevens, though I disagree with him....

The 2nd Amendment has a long history of being interpreted in such a way as to be subject to more regulation by states than by the federal government (f. ex., see Prosser). In this regard, "the people" may be seen as a collective entity beyond the reach of the Federal Government, and not individual persons (note this is not quite the left-wing national guard argument either since each state would own that right collectively rather than the national guard units raised by the state). What would be left to determine in Hellar on that basis would be what this means with regard to DC, given the fact that Article 1 of the Constitution asserts direct rule by Congress. My reading of the dissent in Hellar was that DC should be treated as a state in terms of what further restrictions can be enacted.

The problem with the dissent, though IMO, the city of Washington essentially instituted a full and outright ban which was unparalleled in other cases relating to whether states could further restrict the right to bear arms. Since militias are understood to be fully volunteer organizations of civilians where members furnish their own weapons, individual gun ownership is a prerequisite to being able to form militias... IMO, this went sufficiently far as to ask whether the states had total rights to enact such measures without running amok with the 2nd and 14th amendments.

In my lay opinion (and I believe this was the majority opinion in Hellar), the mandate to use the second amendment to help ensure the possibility of well-regulated militias still means (as per many Supreme Court precedents not entirely overturned by Hellar) that states can adopt regulations beyond what the federal government can adopt, but that these must be done in the service of building a base of people who can, if times require, participate in civil defence forces rather than undermine this. This means that though the individual right to own guns may be subject to further regulation from the state, it may not be eliminated entirely, as in the DC case.
11.8.2008 7:48pm
Soronel Haetir (mail):
My problem with the state power over militia argument is that it runs smack into the militia powers held by Congress. There are several registration/licensing schemes I could see being constituional if enacted by Congress through the militia power but the states would not be so free.
11.8.2008 8:22pm
anaonymous responder:
anonymous skeptic: why so skeptical? you are restating scalia's point. DC was advocating an interpretation that used the idiomatic meaning and scalia was pointing out the absurdity of it. glad you and he agree the literal interpretation is proper.
11.9.2008 11:46am
Twill (mail):

Sammy -

Your redefinition of "keep" and "bear" fails the chuckle test.

Here's the part of the Tenth you quote -- "are reserved to the states respectively, or to the people."

Note that this is either-or. "The states" and "the people" are distinct entities.

Now the part of the Second that is directly relevant - "the right of the people to keep and bear arms".

The wording clearly specifies that it is not a right of "the state", but a right of "the people".

Since those two amendments are part of the same document, it would be ludicrous to argue that the term "the people" means different things in the two clauses.

Why select this one right of the people to make a collective thing? Why not make free speech a collective thing? Why not make religion a collective thing? Why not make abortion a collective thing?

Because it's not a right of "the people" if the government gets to decide which or how or when.
11.9.2008 3:56pm
Sammy Finkelman (mail):
Twill wrote:

Sammy -

Your redefinition of "keep" and "bear" fails the chuckle test.

Here's the part of the Tenth you quote -- "are reserved to the states respectively, or to the people."

Note that this is either-or. "The states" and "the people" are distinct entities.
---------------------------------

That's right. They are alternatives, the way for instance ratification of amendments by a state legislature or a convention are alternatives.

"The people" is kind of more inclusive and really would apply only in extremis. They presumbably put that in ro cover special situations - mostly in which a state could nto act.

I read also this above:

"ince militias are understood to be fully volunteer organizations of civilians where members furnish their own weapons,"

That sounds like post Civil War National Rifle Association peopaganda. It's nonsense (althouigh maybe adopted by Congress in 1903) But it is nonsense. the name of the Militia was gradually changed to Ntional Guard in order to obscure this.

"Now the part of the Second that is directly relevant - "the right of the people to keep and bear arms".

The wording clearly specifies that it is not a right of "the state", but a right of "the people".

Although it says "right" this is really a power. It is a right as against the Federal government, whuich cannot forbid it.

What is "the people?" It is not always individuals. It is a colective group. If it always meant individuals, the tenth Amendment would be incoherent.



Since those two amendments are part of the same document, it would be ludicrous to argue that the term "the people" means different things in the two clauses.

Why select this one right of the people to make a collective thing? Why not make free speech a collective thing? Why not make religion a collective thing? Why not make abortion a collective thing?

Because it's not a right of "the people" if the government gets to decide which or how or when.
11.9.2008 4:31pm
LarryA (mail) (www):
The interesting part for me is that there was no individual rights argument before about 1978, for the same reason that there was no convection ovens until microwave ovens were invented, and no analog watches before digital.
11.10.2008 3:12pm