Brian Leiter's Legal Philosophy Blog

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.

Congratulations to Michael Sevel...

...one of our outstanding JD/PhD students at Texas who has won this year's annual essay competition sponsored by the Australian Society for Legal Philosophy for his paper "Legal Positivism and the Rule of Law."   There is more information about the annual competition here.

How Philosophically-Minded Legal Ethics Looks to a Lawyer Friendly to Philosophy

This review of a collection by David Luban (Georgetown) by my colleague Charles Silver is interesting.

June

June is likely to be fairly quiet here, unless I get the opportunity to write about some of the events I'm involved in while on the road.  June 18 I will be at the University of Girona for a day of legal philosophy seminars organized by Jordi Ferrer and Giovanni Ratti; these, I believe, are open to interested legal philosophers in the area, but you should contact Professor Ferrer for details.  A few days later I will be in Oslo for workshops on issues at the intersection of philosophy of language and law, organized by Stephen Neale (CUNY).  Prior to Girona, I'm speaking about Nietzsche at one of the NYU-sponsored conferences near Florence, but that is, I'm afraid, a "closed" event.  I hope to have some new items on the blog in July (a critique of John Goldberg on Cardozo and legal realism; a discussion of natural kinds, ducks, and natural law inspired by Mark Murphy) and may yet get up some thoughts in June. 

Spaak Reviews Me

Larry Solum (Illinois) kindly flagged for me that Torben Spaak, on the law faculty at Uppsala University in Sweden, has posted a review essay about my Naturalizing Jurisprudence collection.  I have just read through it quickly (as I'm heading out of town), but it seems a fair-minded engagement with my book (for which I thank Professor Spaak), and particularly interesting because of its contention that the Scandinavian Realists are the naturalists in jurisprudence to whom we should really pay heed.   (I've suggested previously that the Scandinavians demand more sympathetic attention, so I welcome his suggestion, though I'm not sure he is entirely sensitive, at least in this review essay, to the worries about the viability of their position.)  One small point:  Professor Spaak is mistaken in suggesting (at p. 3) that I think causal explanations rule out reason-based explanations.  I am, as I say at p. 4, a "relaxed" naturalist, meaning whatever works makes it into our ontology.  The Hempel/Dray debate Professor Spaak references is ancient history as far as genuinely methodological naturalism is concerned. 

Because I am on the road currently, comments (if there are any) may take longer than usual to appear.