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?

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