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June 27, 2008

A Puzzle About Heller

Yesterday, the U.S. Supreme Court held that the Second Amendment to the U.S. Constitution protects the right of indviduals to own weapons (such as rifles and pistols) for self-defense.  Larry Solum (Illinois) offers a fine and helpful overview of the opinion here.  Larry is a fan of Justice Scalia's brand of "public meaning" originalism--which we've discussed before--and so usefully focusses on the interpretive framework Justice Scalia employs in the majority opinion.  It had previously been thought by many courts and commentators that the Amendment--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   --read naturally and literally protects the rights of citizen militias to hold weapons, but, although not as plain, it isn't implausible to read it as really protecting an individual right, and certainly not when one lays as much emphasis on 'original' meaning and parsing delicate phrases as Justice Scalia does.  (On the question of "original meaning," the comments of Mark Tushnet [Harvard] are also apt, though.)

But there remains a real puzzle here, which probably tells us more than originalists would like about their interpretive method (which, as one distinguished commentator has suggested, is "bunk").  For after informing us that,

In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation,

and then going through the detailed analysis of the pieces of the clause (well-summarized by Solum) to reach the conclusion that,

we find that they guarantee the individual right to possess and carry weapons in case of confrontation,

Justice Scalia suddenly informs us that:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Now how is this out-of-whole-cloth set of limitations on the right to be squared with the interpretive principle that "words and phrases were used in their normal and ordinary as distinguihsed from technical meaning" and that "normal meaning...include[s] idiomatic meaning, but...excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation"?  Quite obviously, there is no reference to the felons or mentally ill in the text of the Amendment, and while those of the founding generation had the notion of felons, they did not have our notion of mental illness, which did not make its debut until the 19th-century.  The same can be said, one suspects, about "sensitive places."  (Indeed, it would hardly be surprising that plenty of folks in the "founding generation" did, indeed, carry their guns to school!) 

So how are any of these limitations to be squared with the apparently 'scholarly' and paintstaking analysis of the clause and the guiding interpretive principle announced at the start?  It is not at all obvious.  Perhaps the thought is that the framers, if they had thought about schools, and how they would evolve, or if they were familiar, as we are, with the nature of mental illness, then of course they would have understood that the individual right of self-defense does not extend to the mentally ill or to those in schools.  But the moment we go that route we then open the door to also asking, "Well, what if they were also familiar with modern urban area afflicted by poverty and gun violence, wouldn't they have also entertained a limitation on the right in the same way?"  In which case, what work is the public meaning originalism really doing?

Non-anonymous comments strongly preferred; post only once; comments are reviewed for relevance.

UPDATE:  Larry Solum (Illinois) addresses the puzzle here.

Posted by Brian Leiter on June 27, 2008 in Legal Realism, Legal Theory | Permalink


Yes, I agree that this is a puzzle. Prof. Leiter's final paragraph probably does truthfully describe the justices' reasoning, that if the framers had thought about schools and mental illness they would have limited the right to bear arms accordingly.

But exactly this thought is off-limits to Scalia, who in his book *A Matter of Interpretation* spends pages critizing judges who look to legislative intent in interpreting laws. (Rule of law, says Scalia, is rule by written LAW, not rule by unexpressed intent.)

For instance, he scathingly rejects the judgment in the 19th century case U.S. vs Church of the Holy Trinity. That case concerned a New York church that hired an English vicar to preach, in apparent violation of a law forbidding labor contracts with aliens. The court reasoned that of course legislators, had they thought about it, would have made an exception for men of the cloth. Maybe, says Scalia, but the legislators did not write such exceptions into the law. Hence, the church broke the law.

Thus Scalia is on record as opposing the use of counterfactual speculation ("had legislators considered X, they would have...") to discover implicit exceptions to the written law. Has he changed his mind, or does he abandon his official view once it conflicts with his political sensibilities? I vote for the latter.

Posted by: Craig Duncan | Jun 27, 2008 1:52:44 PM

The parties did agreed at oral argument that the listed prohibitions (on, e.g., bans for felons) were permitted by the 2nd amendment. Scalia isn't supporting the bans: he is appropriately dodging the whole issue entirely, to narrowly construe the opinion.

Posted by: Mike | Jun 27, 2008 2:26:15 PM

If we really go by original intent, shouldn't the allowable arms in question be muskets and flint-lock pistols?

Posted by: James C. Klagge | Jun 27, 2008 3:12:33 PM

Maybe it was what was necessary to get five votes to overturn the DC ordinance. I think in Congress it is known as logrolling.

Posted by: Paul McKaskle | Jun 27, 2008 6:54:33 PM

The retreat by Scalia, et al., into abstract deconstruction of canons of judicial construction, recondite analysis of linguistic usage ca. 1789, and all the rest allows them to elide some really obvious things about how language works.


(L) "It being necessary that you get yourself to the hospital, you may use my car."

On the majority's construction, L would not on its face contemplate an implicit limitation on the license to use my car.

"Bunk" is right.

Posted by: Q the Enchanter | Jun 27, 2008 7:51:48 PM

I think the "longstanding" bit is important. Scalia thinks the 2A is a protection for a particular tradition of private gun ownership--when it talks about "the right" to keep and bear arms, it's talking about a particular right that was already embodied in traditions at the time of the Founding. I don't think Scalia's position is that the Founders *would have* allowed certain sorts of restrictions, had they thought about them; he thinks they *did* allow certain sorts of restrictions of the sorts he names. I imagine he'd disagree with you on the origin of the notion of mental illness.

Posted by: Chris | Jun 28, 2008 8:44:33 AM

Mr. Klagge,
No, the 2nd Amendment is intended to be about firearms. Why would you think that the framers intended to exclude the types of firearm yet to be developed? Had they intended that, wouldn't they have said so?

Posted by: John Collins | Jun 28, 2008 8:29:51 PM

How did Scalia determine that the word 'people' refers to individuals and is not being used as a collective noun?

Posted by: Alex Leibowitz | Jun 29, 2008 11:43:56 AM

I suspect that Scalia has an overarching belief that all rights subsist within (more or less undefined) reasonable exercise limitations; a kind of common sense limit which is so obvious as not to need expression. That outer boundary was part of the public meaning or expression, and so not an addition. (Thus, time place manner restrictions, a 4A that is uncertain in scope, etc.)

A difficulty is that such a move will in fairly short order vitiate the originalism of "originalism" and so back to your question.

Posted by: J. Bogart | Jun 30, 2008 9:42:27 AM

The second amendment ought to be read in connection with letters of marque and reprisal. Those are the kinds of weapons that the founding fathers anticipated in the hands of the people.

The understanding clearly follows through in legislation intended to preserve the rights of Blacks to firearms following the Civil War.

That said, do I really want my neighbor to have nerve gas in his attic or a nuclear device in her basement?

But that people with limited civil rights (the insane, the mentally incompetent, felons) should have these civil rights limited as well, that doesn't seem such a stretch.

The real question is should the change in circumstances be adjusted to by informal amendment or formal amendment, and in what fashion? (I'm not any more sanguine about my neighbors having grapeshot canisters and artillery pieces).

Posted by: Stephen M (ethesis) | Jun 30, 2008 3:49:20 PM

I once had a job where I was a told that I needed to put in 3/4 of my hours in the office.

I think we would, most of us, take this to mean that I put in the other 1/4 from outside the office.

But did it go against the meaning of that first statement, create any contradiction, when I was told to put in all my hours at the office?

The crux of the matter is, "what makes the meaning a plain meaning?"

The militia clause may be a flowery preamble not intended to affect the meaning of the Amendment. But it also seems plausible that the language is qualifying. Even on a sufficiently clear conceptualization of a plain meaning, there is simply no way to just read the Second Amendment and know the answer to these questions.

The Washington Post recently ran an editorial discussing how on the Flesch index, the grade level of State of the Union Addresses has been falling over the last century. The founders were sophisticated writers. I do not mean to suggest this in the vein of a Straussian esotericism, but something a lot simpler: plain main meaning tests may miss some some of what's going on in their writing. I'm not suggesting any grand theories here, but, as above some of their some language is very stylized and often self-conscious.

Posted by: Mark Engleson | Jul 3, 2008 12:04:36 PM

So how are any of these limitations to be squared with the apparently 'scholarly' and paintstaking analysis of the clause and the guiding interpretive principle announced at the start? It is not at all obvious.

If tradition embodies collective societal (received) wisdom, then the longstanding limitations on the right reflect the original understanding of the right's scope.

Posted by: Michael Winfield | Jul 3, 2008 4:55:35 PM

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