And both were ideologically riven. Kind of makes one wonder whether any interpretive theory really binds ideological preferences in some cases.

And both were ideologically riven. Kind of makes one wonder whether any interpretive theory really binds ideological preferences in some cases.

Yup.

Originialism is "balanced" against precedent, so all of the same problems Jim Lingren noted in his terrific post yesterday come into play.

There is nothing originalist about Heller. It's more of a canned NRA sales promotional campaign than anything having to do with constitutional law. Shame on conservative justices for suggesting there was a popular belief for an individual right, while ignoring the fact that most every state court opinion over the same language throughout the 19th century said just the opposite.

I think the distinction between original public meaning and original expected application is relevant here, too. That is, when it's not clear what the basic semantic meaning of a word, phrase, or clause is, most jurists (even people who don't consider themselves originalists) would find it highly relevant, if not dispositive, to look to what the words were understood to mean at the time they were adopted. So when the question is what words like "keep," "bear," "arms," and "the people," mean in this context, or what connection, if any, the militia clause has to the rights-bearing clause, it seems fairly uncontroversial to at least start by asking what those words meant to the people who were adopting them.

By contrast, when the debate isn't over the semantic meaning of the words, but rather about how they apply to certain situations, that's where there's a major schism between originalists and non-originalists. Jack Balkin, for example, would (as I understand it) say that we should ask what "due process" and "equal protection" meant to the ratifierss; but once we conclude that those words had basically the same (vague) semantic meaning that they have today, we should look to other legal materials, including contemporary ones, to determine whether there was a due process or equal protection violation in a given instance. Whether the ratifiers would have considered this or an analogous action to be a violation is perhaps relevant, but is far from dispositive.

It's possible that originalism is just being deployed haphazardly, whenever it's convenient for one side's argument. But I'd like to suggest that it seems like "we're all originalists" only because Heller is one of those rare cases in which the basic meaning of constitutional language -- as opposed to how it applies in a given instance -- is at issue.

Anon321 wrote: "By contrast, when the debate isn't over the semantic meaning of the words, but rather about how they apply to certain situations, that's where there's a major schism between originalists and non-originalists."

That is true, but I think it is different when you are dealing with the first Eight Amendments since the framers inserted two additional amendments to control the construction of the words.
My beef is with the court ignoring this safeguard.

Scalia, J. once referred -- probably correctly -- to reviews of legislative history as (and I paraphrase) the equivalent of "looking out over a crowd and picking out your friends."

And so it now goes, too, with "originalist" authorities. Maybe it wasn't so much the Court buying in to originalism wholesale as the dissenters saying ". . . and furthermore, we can even win this game on your turf." And they go out and tear up said turf with their cleats, as is easy to do when the turf isn't well-laid and lacks a deep, effective root system. See also my backyard (as I hear from the folks at Home Depot).

It interests me, too, that originalism channels us inexorably in the direction of deciding cases based on what 18th century British authorities would have held. This after the references to foreign law in Lawrence and recent death penalty cases were so hard for conservatives to swallow.

It's a rather severe irony that citing foreign law is anathema, unless it's to legal authorities associated with the single sovereign state that the Framers are on record resisting. You can't cite a modern British authority's good idea, but we're beholden in our constitutional debates to pronouncements from English Lords whom the Framers would sooner have challenged to duels than accepted as sources of binding authority over all subsequent American generations.

Originalism cracks me up.

... So, what is this Heller case everyone's talking about?

It interests me, too, that originalism channels us inexorably in the direction of deciding cases based on what 18th century British authorities would have held.

It's a little more nuanced than that. See the Breyer-Scalia debate on the use of foreign law.

"No Free man shall ever be debarred the use of arms." -- Thomas Jefferson, Proposal to Virginia Constitution.

I rest my case.

I would think the cases support his position, because they suggest that self defense was not the purpose of the Amendment. If it were, they would have referred to additional arms as being protected, not just those of the militia. A dagger certainly could be a self defense weapon of the time, I would think.

In my opinon, Scalia's opinion is more practical than doctrinal. The problem that he confronted was not defeating the argument that the Second Amendment protected a collective right, which he more or less dismissed as Carrollian doublespeak, but in giving a common sense interpretation to the operative claue that would not seem to allow possession of bazookas. To do this, Scalia used a neat, if not entirely intellectually honest trick.

The key to Scalia's gambit is found at teh bottom of page 52 of the slip opinion:

We think that Miller's ordinary military equipment language must be read in tandem with comes after: "[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. 307 U.S., at 179. The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self defense.

What Scalia did was to conclude that the "ordinary military equipment" language in Miller meant the opposite of what it seemed to say. When the Miller Court spoke of "ordinary military equipment" it seemed to suggest that weapons would not be covered under the Second Amendment unless they were miltary weapons. Scalia, however says that the adjective "ordinary" modifies "equipment," not "military." He says that the Second Amendment covers weapons that are not military, but that are kept for other lawful purposes and serve as the armament of a militia in a pinch. He interprets "ordinary military equipment" as "ordinary equipment that might be used as weapons by a militia."

This paradoxical interpretation allowed Scalia to divorce the right to keep and bear arms from the requirement of enrollment in a militia, and also dodged the expected objection that an originalist interpretation would allow possession of rocket launchers. In this way, Scalia was able to preserve what he reasonably believed to be the principle behind the amendment (militia or no, an armed citizenry is less vulnerable to tyranny than a disarmed one) without adopting the likely baggage that would accompany a strictly originalist line of reasoning.

starrydeceases:

Scalia said the "public understanding of a legal text in the period after its enactment or ratification" is a "critical tool of constitutional interpretation."

You'd think state courts would find an individual right if in fact this was the public understanding of the identical words found in state constitutions. The court cannot justly claim this as they suggested.

J. Aldridge:

Here's my favorite selection from English:

The constitution of the United States provides that '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.' This provision is found among the amendments; and, though most of the amendments are restrictions on the general government alone, not on the states, this one seems to be of a nature to bind both the state and national legislatures, and doubtless it does.


I do hope it is bookmarked and handy for the next challnge.

You'd think state courts would find an individual right if in fact this was the public understanding of the identical words found in state constitutions.

State courts have. Ever wonder why Vermonters have no need for a license to concealed carry? Or seen the Kentucky "Bliss v. Commonwealth" case?

We're not all originalists, it's just that Scalia is an originalist and if you're trying to write an intellectually honest opinion, you have to respond to the rationally based views of your opponent. Were Scalia to start writing opinions like "Ruth, you ignorant slut", there would be no mention of originalism at all. Were Thomas really to base his decisions on "natural law", it wouldn't cause the rest of the justices to become natural law philosophers, they don't have to respond to supernaturally based views.

Aldridge,

At the risk of repeating what others have said, there are at least two threshold questions that one must ask about the Second Amendment: (1) who are "the people" that it protects (individuals, members of the militia, members of the militia in active service, etc.); and (2) what "arms" does it secure them the right to "keep and bear" (pistols, rifles, machine guns, rocket launchers, nuclear weapons, sword canes, brass knuckles, etc.)?

Your claim was that, "there was [no] popular belief for an individual right, while ignoring the fact that most every state court opinion over the same language throughout the 19th century said just the opposite." That is a claim about point (1). Your first two quotations address only point (2).

"The arms spoken of . . . means such arms as are borne by people at war, or, at least, carried openly."

"The word 'arms,' . . . refers to the arms of a militiaman or soldier. . . "

Darling (which is not a nineteenth century case, and thus is technically beyond the scope of this discussion) does speak to point (1), but you've quoted it selectively. For those who may not wish to go look it up themselves, the sentences immediately after your quotation read as follows:

"If the Legislature had prohibited the keeping of arms, it would have been clearly beyond its power. As said by the Supreme Court of the United States in Presser v. Illinois (supra): 'It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But as already stated, we think it clear that the sections under consideration do not have this effect.'"

So even Darling acknowledges the existence of an individual right (in particular an individual right to keep arms), and merely upholds the statute as a reasonable regulation of that right.

None of the cases you rely on even suggested that they turned on whether the defendants were members of the militia; Darling assumed it (citing Presser for the proposition that the militia is effectively everyone), and the other two didn't even bother to address it. Had the courts intended to adopt something other than an indivdual right view of the Second Amendment, questions related to militia service would have been central to their analyses. A few lines from English may be instructive.

"The act referred to makes all necessary exceptions, and points out the place, the time and the manner in which certain deadly weapons may be carried as means of self-defense, and these exceptional cases, in our judgment, fully cover all the wants of society."

This reference to self-defense would be singularly out of place if the court believed that that militia service were the only object of the right to keep and bear arms.

"There is no abridgement of the personal rights, such as may be regarded as inherent and inalienable to man, nor do we think his political rights are in the least infringed by any part of this law."

This sentence very clearly assumes an individual right to arms; it simply concludes that the law under consideration, prohibiting the carrying of certain arms concealed, does not offend that individual right.

So you're 0 for 3 on cases you chose. Then, of course, as others have mentioned, there are Nunn and Bliss. I'll leave out Bliss because it was decided under the right to keep and bear arms provision of the Kentucky Constitution, which was worded somewhat differently than the Second Amendment. (Although Bliss certainly does put the lie to the claim that "bear arms" could not have a private, non-military meaning very early on in this country's history.) But for the benefit of Orin and others who don't feel like looking them up, here are some quotations from Nunn:

Nor is the right involved in this discussion less comprehensive or valuable: “The right of the people to bear arms shall not be infringed.” The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans, plead eloquently for this interpretation!

Nunn v. State, 1 Ga. 243, 251 (1846) (empasis in original).

We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void . . .

Id. (This after a lengthy discussion of why the Court is applying the Second Amendment to the state despite Barron v. Baltimore.)

Those who wish to criticize Justice Scalia for an overly narrow intereptation of the word "arms" have a leg to stand on, particularly under English and Nunn. I agree that a broader definition of "arms" probably would have been more consistent with the early sources, and with Miller. But I won't criticize Scalia for that; as I've said before, anyone who thought this decision would extend to machine guns wasn't living in the real world. Scalia did what he had to do to get five votes. But anyone who claims that Scalia isn't on solid ground in finding an individual right -- and particularly anyone who purports to criticize that finding based on 19th century sources -- is completely out to lunch. Shame on the majority? No sir; shame on you.