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Interpretation vs. Construction in Heller:
Jack Balkin and Larry Solum are having a very important exchange on the originalist methodology employed by Justice Scalia in Heller. (For Jack's post click here for Larry's click here, here, & here) This involves the crucial, and widely unappreciated, distinction between constitutional interpretation and constitutional construction, a distinction first brought to the fore in modern constitutional theory by Princeton professor Keith Whittington. As Larry explains in his third post, constitutional interpretation is the method by which the semantic meaning of words is ascertained; constitutional construction is the method by which the meaning yielded by constitutional interpretation is applied to particular factual situations.
So what is the distinction between "interpretation" and "construction"? Unless, you have a thorough familiarity with the history of the law of contracts, trusts, or will or a deep knowledge of contemporary constitutional theory, you may think that these two terms are simply synonyms. It turns out that the distinction between interpretation of the linguistic meaning of legal texts and the construction of legal rules from that linguistic meaning has a long history in Anglo-American law. Here is a first (rough) cut at definition:
* Interpretation: The activity of determining the linguistic meaning (or semantic content) of a legal text.
* Construction: The activity of translating the semantic content of a legal text into legal rules, paradigmatically in cases where the meaning of the text is vague.
Those definitions sound pretty technical to me, but I hope you are starting to get the idea. We interpret the meaning of a text, and then we construct legal rules to help us apply the text to concrete fact situations.

Courts and legal theorists use the distinction between interpretation and construction in a variety of legal contexts, including contract law and constitutional law. In a contracts case, for example, the Iowa Supreme Court stated, "Interpretation involves ascertaining the meaning of contractual words; construction refers to deciding their legal effect." Fashion Fabrics of Iowa v. Retail Investment Corporation, 266 N.W. 2d 25 (Iowa 1978).
In short, where the text is vague, and the factual situation falls outside its core meaning, this typically requires the "construction" of doctrine that is not literally in the text itself.

Although this is all very commonplace in law, sometimes these constitutional doctrines resulting from construction are inaccurately considered to be the meaning of the Constitution itself, which they clearly are not. By the same token, they are also often criticized as being "made up" by the Court and not in the Constitution, which is true, but beside the point.

Once one grasps the distinction between interpretation and construction, many constitutional confusions can be cleared up and constitutional debate can shift to more productive issues. For example, original public meaning originalism is a method of constitutional interpretation; it is not a method of constitutional construction. Once it has done all it can do to ascertain the meaning of the text, and that meaning remains vague when applied to a particular situation, then constitutional construction is required. Although such constructions or doctrines must not contradict or subvert the original meaning of the text, by assumption they are not dictated by that meaning. That is an implication of the meaning of the text being "vague." More than one construction is consistent with its (original) meaning, and therefore no single construction can be logically deduced from it.

How one engages in constitutional construction is a bigger topic than I can even summarize here. In my view, where the (original) meaning of the Constitution is vague, we should select constructions that are consistent with that meaning and that enhance whatever it is that makes a constitution legitimate. Because people operate with different implicit conceptions of legitimacy (e.g. consent, justice, democracy, etc.) there is marked disagreement about how to do construction. Of utmost importance is that, depending on their theory of legitimacy, originalists who are committed to respecting the original public meaning of the Constitution can still differ on how they think construction should be done and, even if they agree about this, they may differ in the wisdom of different constructions. But when these disagreements arise, it is very useful to know what it is we are disagreeing about: not the meaning of the Constitution, but how to put that meaning into effect.

If all this sounds too open-ended or fuzzy for your taste, I sympathize, but don't blame me. Blame the inherent limitations of language. But also blame the need to adopt written constitutions at a level of generality that allows them to be applied to future changing circumstances. For example, the Second Amendment speaks of "arms" not "muskets" allowing it to be applied to modern arms. That's not a bug, it's a feature. Deal with it.

Which returns us to Heller. In my Wall Street Journal piece, I praised Justice Scalia's opinion as "the finest example of what is now called "original public meaning" jurisprudence ever adopted by the Supreme Court." Even with the benefit of a cooling off period, I stand by that assessment and note that Jack Balkin too praises the original public meaning aspect of Justice Scalia's opinion. (I do have one concern with Justice Scalia's originalist analysis, however, which I identify at the end of this post.)

Where Justice Scalia's opinion is raising questions (such as this post by Brian Leiter) have to do with his inevitable need to engage in constitutional construction where the original meaning of the text is too vague to be directly applied to a variety of issues. There his method is opaque, in large part (I suspect) because he may not himself clearly see the distinction between interpretation (original public meaning) and construction (the need to apply that meaning to specific regulations). I suspect this because very few constitutional scholars appreciate this difference, and Justice Scalia would be in impressive company if he failed to fully grasp when he has left interpretation behind and entered what Larry Solum calls "the construction zone."

But does this mean that, when confined to the realm of "interpretation," originalism is so indeterminate as to be uninteresting? That "all the action" is in the construction zone? If that were true, we would not have spent the past 30 years debating the original meaning of the Second Amendment so ardently. That the Second Amendment protects the rights of individuals to possess and carry weapons for lawful purposes is of enormous significance. It sets what Fred Schauer has called the "frame" within which construction is being done. While there is more than one construction that can put this individual right into effect within the frame, the DC gun ban was outside the frame and properly struck down here.

This is what the debate between Justice Scalia and Justice Breyer was largely about. When Justice Breyer proposed a balancing test, Justice Scalia responded that this was not how express constitutional rights are protected. That the Second Amendment protects a right makes a simple rationality test of the sort favored by Justice Breyer outside the frame. Some meaningful level of scrutiny is required to vindicate and protect a right from governmental abuse. But what the precise level of scrutiny ought to be--and how it applies to particular gun regulations--is a matter of construction. More than one doctrine is within the frame, even if Justice Breyer's approach is outside because, in effect, it sanctions the violation of an individual right by the government that the Bill of Rights is there to constrain.

There is much more to be said about all this than I have said. I do not claim to have addressed all the fascinating issues raised by Heller, or by the posts by Brian, Jack and Larry. Jack and Larry are engaged in a good faith examination of how an originalist ought to do constitutional construction. If you are sincerely interested in these crucial issues, don't just dash off a comment responding to these brief remarks. Read Brian Leiter's challenge. Read Jack Balkin's take. Read Larry Solum's excellent posts. (The links are all above.) Then stop for a moment and think about how this distinction might illuminate how you approach these issues. Of course, like any conceptual distinction, the line between interpretation and construction is itself vague. But once one realizes that courts and other interpreters are engaged in two closely related but distinct endeavors, much confusion is avoided. And consensus on a great many issues can be attained, while reserving our debates for those important issues--typically involving matters of constitutional legitimacy and construction--about which we truly disagree.

[My concern with Justice Scalia's analysis of original public meaning is his thesis that:
At the time of the founding, as now, to "bear" meant to "carry." See Johnson; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989). When used with "arms," however, the term has a meaning that refers to carrying for a particular purpose—confrontation.
I do not think that this "particular purpose" is part of the semantic meaning of the right. In my view the right is unqualified by any purpose including that stated in the preface (which is where I disagree with Justice Stevens). It would therefore protect weapons being used for any "lawful" purpose, including the lawful purpose of self defense. I suspect that Justice Scalia makes this move because he does not completely appreciate the distinction between interpretation and construction, so he (like so many others) feels the need to build into the "meaning" of the text limitations on its reach, rather than assessing these limitations as the inevitable need to resolve the vagueness in meaning that gives rise to the need for construction. Of course the original meaning of a particular term or phrase in context could be limited in its scope (as I believe is true about "the rights . . . retained by the people" in the Ninth Amendment) But the paucity of evidence presented by Justice Scalia in behalf of this specific conception of bear arms is an indication that he has strayed here from the realm of constitutional meaning into the construction zone.]
frankcross (mail):
Very nice review, but I think the line between interpretation and construction is blurrier than you seem to suggest.

Take the anomaly in Scalia's opinion, expressly upholding various limitations such as for ex-felons. You suggest this is construction, which seems right. But why does not this construction violate the interpretation? Nothing I can see in Scalia's "interpretation" of the right would warrant the ability to engage in such "construction."

Although I think the big flaw in this as in nearly all opinions, is that they cover their construction as interpretation (apparently so as to make it appear less discretionary). I wonder if the militia clause isn't the best argument for Breyer's interpretation, on the theory that its very existence takes the right out of the general "frame" for the Bill of Rights.
7.3.2008 3:10pm
30yearProf:
"Bear arms" has no inevitable confrontational connotation. It means simply "to carry."

This is demonstrated in an article cited in the Heller majority opinion. Clayton E. Cramer &Joseph Edward Olson, What Did "Bear Arms" Mean in the Second Amendment?, 6 Georgetown J. L. &Pub. Pol. 511 (2008).
7.3.2008 3:22pm
Tony Tutins (mail):

(3) "to constitutionalize the common law right of self-defense using generally available weapons".

This right was already constitutionalized in the English Bill of Rights of 1689. The Second Amendment merely takes out the religious and class restrictions as to who could own arms, and to what arms they were allowed to have.

Further, I don't understand how the Second Amendment can refer to rights or powers of states to maintain militias: the right discussed belongs to the people; the Tenth Amendment specifically contrasts "the states" with "the people;" and the Fourth Amendment makes it clear that "the people" refers to individuals (communal living and sharing of houses, papers, and effects being the exception at that time.) I think Prof. Balkin is just a "collective rights" kinda guy.
7.3.2008 3:26pm
OrinKerr:
Is "construction" like the Richard Fallon's "implementation"?
7.3.2008 3:33pm
Dilan Esper (mail) (www):
Tony:

The problem with saying the Second Amendment has nothing to do with state militias (only militias of "the people") is that the Amendment refers to "well-regulated" militias. Even using the sense of this term that Scalia adopts-- i.e., disciplined, trained-- who is going to discipline and train the militia?

Further, all the states, and the federal government, had procedures for organizing the militia at the time the Constitution was adopted. Nobody thought those procedures violated the Second Amendment or any other provision of the Constitution.

Thus, in calling for a well-regulated militia, the Second Amendment clearly does refer to state militias, at least in the sense that the state can organize, discipline, and train the militia. And note this doesn't at all depend on whether Scalia is right about whether the purpose clause limits the operative clause or not.
7.3.2008 3:35pm
New York:
Excellent post by Mr. Barnett. I wish more lawyers talked about linguistics. As a certain well-known law professor in Germany (R. Zippelius) has written: "Laws are legal notions set down in words." Thus, the kind of necessary hair splitting between construction and interpretation is welcome.
7.3.2008 3:49pm
LM (mail):

That the Second Amendment protects the rights of individuals to possess and carry weapons for lawful purposes is of enormous significance.

Is it "weapons" or "firearms?"
7.3.2008 3:55pm
Tony Tutins (mail):
Dilan, I think only from our 21st Century perspective do we assume that government action is needed to accomplish anything. "Disciplined" means "self-controlled;" if I were to say you were disciplined it wouldn't necessarily mean people had sufficiently whacked you on the head with a ruler. The Second Amendment says, Effective militias are good things, and to have them you have to let everyone have access to guns. If you want to look for a grant of authority to states to have militias, look elsewhere.
7.3.2008 4:00pm
Tony Tutins (mail):

Is it "weapons" or "firearms?"

Check the Acts of Parliament post-1689 regarding the carrying of swords, dirks, and daggers.
7.3.2008 4:02pm
Brett:
Even using the sense of this term that Scalia adopts-- i.e., disciplined, trained-- who is going to discipline and train the militia?


It was common for the citizen-militias during the Revolutionary War period to organize and drill themselves. The guys who showed up on Lexingon Green on April 19th, 1775 weren't disciplined, trained, or armed by a state authority.

Further, all the states, and the federal government, had procedures for organizing the militia at the time the Constitution was adopted. Nobody thought those procedures violated the Second Amendment or any other provision of the Constitution.


Which is completely irrelevant to the question of whether modern gun control laws violate the Second Amendment or any other provision of the Constitution. Apples, meet oranges.
7.3.2008 4:06pm
Randy Barnett (mail) (www):
Orin, it has been a little while since I read Fallon's book, but, yes, I think he is on to the distinction when speaking of "implementation." But that does not mean he either fully accepts the interpretation/construction(implementation) distinction--such that the boundaries of permissible construction are set by interpretation--or the original public meaning approach to the interpretation side of the line. Still, as I recall, his move was in the right direction.
7.3.2008 4:12pm
Originalism Is Useful (mail):

I suspect that Justice Scalia makes this move because he does not completely appreciate the distinction between interpretation and construction, so he (like so many others) feels the need to build into the "meaning" of the text limitations on its reach, rather than assessing these limitations as the inevitable need to resolve the vagueness in meaning that gives rise to the need for construction.


Or perhaps he does appreciate it and is setting the limits of permissible construction with judicial power while pretending to do interpretation because he is a formalist. He finds law. He don't make it.
7.3.2008 4:33pm
AF:

That the Second Amendment protects a right makes a simple rationality test of the sort favored by Justice Breyer outside the frame. Some meaningful level of scrutiny is required to vindicate and protect a right from governmental abuse. But what the precise level of scrutiny ought to be--and how it applies to particular gun regulations--is a matter of construction. More than one doctrine is within the frame, even if Justice Breyer's approach is outside because, in effect, it sanctions the violation of an individual right by the government that the Bill of Rights is there to constrain.


This is a very helpful analysis of what is wrong with Breyer's opinion. It is not -- as Orin suggested last week -- that Breyer applied a different level of scrutiny than he has applied to other constitutional rights. It is that he applied a level of scrutiny so deferential as to be inconsistent with the existence of a constitutional right.
7.3.2008 4:40pm
Doc W (mail):
Tony Tutins has it right. I'd like to chime in. If 2A was intended merely to preserve the states' ability to organize militias, it would have referred to a "power of the states" not a "right of the people". "Well-regulated" in 17th Century parlance conveyed the sense of working well, of being effective. And "militia" could refer to organized military units, but it also had a much broader meaning, referring generally to an armed citizenry that could be called on for defense. Yes, the government might organize and discipline (train) some or all of the militia, and it might even supply members of organized units with specific or standardized arms. But the pre-existence of the militia in the broad sense is assumed.

What is it that connects a "RIGHT OF THE PEOPLE to keep and bear arms" to "a well-regulated militia, being necessary to the security of a free state"? It is that an ARMED CITIZENRY is necessary to said security. In order to have a fully effective militia, the people must be allowed to possess arms.

The distinction we keep hearing about, between some civic right to bear arms versus a "private right of self-defense," is empty. "Security" surely doesn't just mean protection from the armies of invaders, rebels, and tyrants. When people defend themselves, their families, their homes against violent criminals or come to the aid of their neighbors, they are serving the purpose of the militia. They ARE the militia.

Virtually none of the rights in the Bill of Rights is absolute. Nevertheless, once the above considerations are understood and accepted, I believe the way is pretty clear for courts to find the limitations of 2A just as they have done with the other rights.
7.3.2008 4:49pm
krs:
I wonder if the distinction would be less confusing (i.e. fewer people "may think that these two terms are simply synonyms") if the "construction" part was called something more useful like "implementation" or "application."
7.3.2008 4:49pm
Dilan Esper (mail) (www):
Dilan, I think only from our 21st Century perspective do we assume that government action is needed to accomplish anything. "Disciplined" means "self-controlled;" if I were to say you were disciplined it wouldn't necessarily mean people had sufficiently whacked you on the head with a ruler. The Second Amendment says, Effective militias are good things, and to have them you have to let everyone have access to guns. If you want to look for a grant of authority to states to have militias, look elsewhere.

Tony, that's how an anarchist or an extreme libertarian might interpret it. There is no evidence, however, that our framers were anarchists or extreme libertarians with respect to this issue, especially since other parts of the Constitution confirm the power of the government: (1) to form organized state militias, (2) to federalize them, and (3) to conscript citizens into military service.

In other words, the natural reading of the framers' words, based on the beliefs we know they had and the powers we know they conferred on the government, is that the states DID have the power to impose discipline on the militias. The fact that some Milton Friedman acolyte might argue 200 years later that it wasn't necessary really doesn't speak to the issue; the framers did not enact those ideas into the Constitution.
7.3.2008 4:56pm
Tony Tutins (mail):

other parts of the Constitution confirm the power of the government: (1) to form organized state militias, (2) to federalize them, and (3) to conscript citizens into military service.

You found them! Excellent!
7.3.2008 5:00pm
Doc W (mail):
From Dilan Esper: "Tony, that's how an anarchist or an extreme libertarian might interpret it."

Dilan, that's pure labeling. If you have a substantive argument, let's hear it.

"other parts of the Constitution confirm the power of the government: (1) to form organized state militias, (2) to federalize them, and (3) to conscript citizens into military service."

Exactly. So the Second Amendment is presumably something else. It's not about the power of government to organize military units. It's about the right of the people to possess and use weapons.
7.3.2008 5:01pm
glangston (mail):
Soon we will find out just how egregious some federal and state laws restricting firearms were. I even suspect if a 14th Amendment case were brought before Scalia he likely would have a tough call agreeing it even needed incorporation as he seems to indicate the right pre-exists the Amendment.
7.3.2008 5:11pm
AKD (mail):

Is it "weapons" or "firearms?"


Both. All weapons are arms. All firearms are arms. But not all arms are firearms or weapons. Helmet, shield and armor are all arms, as well. Not sure when the phrase "arms and armour" came into use, but I think it may be somewhat redundant. The question is if something we would classify as a weapon, for example a medieval hunting bow, is truly an arm.

I thought the important distinction Scalia was making is not that arms can only be used for confrontation, but that being allowed to keep and bear arms only for nonconfrontational purposes is contradictory. Arms ("tools, implements of war") are by definition for confrontational purposes.
7.3.2008 5:20pm
Bill McGonigle (mail) (www):
Folks here wishing to find contemporary usage to judge word meaning should realize others have long ago compiled such lists.
7.3.2008 5:44pm
Visitor Again:
Judges and lawyers are most likely to be familiar with the distinction between interpretation and construction in the area of statutes. A large number of rules of construction have been developed for construing statutes once their meaning has been interpreted.

My concern with Justice Scalia's analysis of original public meaning is his thesis that:


At the time of the founding, as now, to "bear" meant to "carry." See Johnson; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989). When used with "arms," however, the term has a meaning that refers to carrying for a particular purpose—confrontation.


I do not think that this "particular purpose" is part of the semantic meaning of the right. In my view the right is unqualified by any purpose including that stated in the preface (which is where I disagree with Justice Stevens). It would therefore protect weapons being used for any "lawful" purpose, including the lawful purpose of self defense.


I hope I am wrong on this--I read the opinion only once and hurriedly--but my reading of this excerpt from the majority opinion was that Scalia was giving the right to carry arms outside the home a very limited meaning--as opposed to the much broader meaning given the right to keep arms inside the home. The right to carry arms in public, for him, is limited to the purpose of confrontation. In other words, the right to carry arms outside the home is limited to some sort of militia or military purpose, confronting the enemy. Thus, at the level of interpretation, he gets rid of the prospect of private persons freely carrying arms about in public without having to worry whether laws limiting public carry would otherwise pass constitutional muster under a strict scrutiny or other test.
7.3.2008 6:08pm
JN Heath (mail):
Dilan, et al.,

As J. Scalia pointed out, and as my own research shows, Congress has plenary power over the militia, including the power to exclude citizens from the statutory militia (state and federal). I.e. Congress defines the membership of the "state" militia. This is not a guess on my part, or J. Scalia's -- it comes from two centuries of caselaw. And as J. Scalia points out, you cannot make a right conditional on sponsorship that the government can withhold.

Randy -- in 1789 did Congress have an enumerated power to regulate guns as a criminal matter? If not, Madison would have given up precisely nothing by *entirely* repudiating a federal power to criminalize gun ownership, even if he prefaced it with some feelgood language about the militia. Is this not a more fundamental originalist argument than what was presented in _Heller_? Both the majority and minority seem to have assumed that Congress started off with a power to criminalize gun ownership, derived from the unamended constitution. I believe that is a deeply flawed assumption.

JNH
7.3.2008 6:15pm
Clayton E. Cramer (mail) (www):

The distinction we keep hearing about, between some civic right to bear arms versus a "private right of self-defense," is empty.
Not according to John Adams--who acknowledged that the state had authority to regulate the carrying of arms by non-governmentally recognized militias. He did, however, make the point that this power to regulate did not extend to regulating the right of individuals to bear arms for private self-defense.
7.3.2008 6:33pm
Dilan Esper (mail) (www):
Exactly. So the Second Amendment is presumably something else. It's not about the power of government to organize military units. It's about the right of the people to possess and use weapons.

Doc, it's about both. You are using unitary reasoning and assuming that the framers could not have intended to (1) protect an individual right AND (2) preserve the power of states to discipline, train, and organize the militia.
7.3.2008 6:37pm
Clayton E. Cramer (mail) (www):

Both. All weapons are arms. All firearms are arms. But not all arms are firearms or weapons. Helmet, shield and armor are all arms, as well. Not sure when the phrase "arms and armour" came into use, but I think it may be somewhat redundant. The question is if something we would classify as a weapon, for example a medieval hunting bow, is truly an arm.
Just to add to the complexity: as late as 1620, "armed" was still being used in English to mean "wearing armor." And in a number of sources from the Revolutionary and early Republic period (but not all sources), the term "firearm" or "fire arm" refers specifically to a military musket. But what does "arm" by itself mean? From uses in Revolutionary purchase contracts, it seems to include rifles, muskets, pistols, swords, bayonets, and blunderbusses. My book Armed America discusses these problems and gives some examples.

By the time that the great concealed weapon struggle gets underway in the 1830s, "arm" seems to be used to refer to any dangerous weapon that a person might carry for offense or defense, including sword-canes, Bowie knives, Arkansas toothpicks, butcher knives, pistols, and long guns. My book Concealed Weapon Laws of the Early Republic has gobs of examples of such usage.
7.3.2008 6:39pm
Clayton E. Cramer (mail) (www):

Doc, it's about both. You are using unitary reasoning and assuming that the framers could not have intended to (1) protect an individual right AND (2) preserve the power of states to discipline, train, and organize the militia.
Perhaps they intended both, but if so, they failed to get the message across that the Second Amendment was supposed to change the relationship between federal and state governments about this. See Houston v. Moore (1820), where all the opinions seem to agree that the only power over the militia is defined by the original provisions of Art. I, sec. 8:

The Constitution declares that Congress shall have power to provide for calling forth the militia in three specified cases: for organizing, arming, and disciplining them; and for governing such part of them as may be employed in the service of the United States; reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress. It is further provided that the President of the United States shall be commander of the militia, when called into the actual service of the United States.
Even Justice Story's dissent, which mistakenly refers to the Second Amendment as the Fifth Amendment, doesn't seem to think that it changed the authority over the militia--although he does think that there is a concurrent authority:

The Fifth Amendment to the Constitution, declaring 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," may not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates rather than impugns the reasoning already suggested.

But Congress has also the power to provide "for governing such part of the militia as may be employed in the service of the United States." It has not been attempted in argument to establish that this power is not exclusively in Congress, or that the states have a concurrent power of governing their own militia when in the service of the Union. On the contrary, the reverse has been conceded both here and before the other tribunals in which this cause has been so ably and learnedly discussed. And there certainly are the strongest reasons for this construction. When the militia is called into the actual service of the United States, by which I understand actual employment in service, the Constitution declares that the President shall be the commander in chief. The militia of several states may at the same time be called out for the public defense, and to suppose each state could have an authority to govern its own militia in such cases, even subordinate to the regulations of Congress, seems utterly inconsistent with that unity of command and action on which the success of all military operations must essentially depend. There never could be a stronger case put from the argument of public inconvenience against the adoption of such a doctrine. It is scarcely possible that any interference, however small, of a state under such circumstances in the government of the militia would not materially embarrass, and directly or indirectly impugn the authority of the Union. In most cases, there would be an utter repugnancy.
If the Second Amendment's militia preface changed anything about the power of the states over the militia, it has left no record.

I should also mention that there was a proposed amendment that would have done what you suggest: return significant authority over the militia to the states. And it was defeated in the Senate.
7.3.2008 6:49pm
MarkField (mail):

Doc, it's about both. You are using unitary reasoning and assuming that the framers could not have intended to (1) protect an individual right AND (2) preserve the power of states to discipline, train, and organize the militia.


Indeed. One of the amendments proposed by the VA ratification convention was specifically intended to preserve existing state power over the militia: "That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same."

Roger Sherman then used nearly the identical language in one debate over whether to add an exception for militia duty based on religion: "We do not live under an arbitrary Government, said he, and the States, respectively, will have the government of the militia, unless when called into actual service...."

We can say with assurance that at least some of the Founders understood that the states controlled the militia and wanted to preserve that control as against Congress.
7.3.2008 7:48pm
John Pate (www):
Check out W&M Sess. 1, C. XV 1688, An Act for the better securing the Government by disarming Papists and reputed Papists and the text of 1688 Bill of Rights. I'm pretty sure it was always military weapons that were being talked about and weapons for self defence were seen as a `given' whether you're talking about English Law (and Scot's Law since the Claim of Right Act echoes the Bill of Rights) or the 2A. I don't see how having weapons for self defence would have been in any kind of question when the US Constitution was written. It seems to me most reasonable that both the 2A and the 1688 Bill of Rights were talking about citizens retaining access to military equipment.
7.3.2008 8:04pm
Michael B (mail):
"Those definitions sound pretty technical to me, but I hope you are starting to get the idea. We interpret the meaning of a text, and then we construct legal rules to help us apply the text to concrete fact situations." L. Solum

Yes. And no. It's all but impossible to do those activities in such a sequentially discrete and abstracted manner. To the extent it is possible it would require such a high degree of abstraction - from the facts constituting specific cases and broader realities - that such an inorganic, abstracted procedure might well be called into question.

The dividing line is blurrier, much blurrier, and properly understood is less a dividing line than a proximately conceived area and sense of demarcation.

It's no less a worthy discussion for that quality, but it will be a better grounded discussion to the extent that's kept consciously in mind.
7.3.2008 9:25pm
Doc W (mail):
Me: "The distinction we keep hearing about, between some civic right to bear arms versus a "private right of self-defense," is empty."

Clayton Cramer: "Not according to John Adams--who acknowledged that the state had authority to regulate the carrying of arms by non-governmentally recognized militias. He did, however, make the point that this power to regulate did not extend to regulating the right of individuals to bear arms for private self-defense."

Clayton, I'm not saying there's no difference between serving in a military unit and defending your home, or even between serving in non-government-organized versus government-organized military units. I'm saying that defending yourself, your home, and your family and coming to the aid of neighbors is as much a "civic" action as serving in an organized unit. One of the rhetorical games being played by anti-gun propagandists is to relegate self-defense to some sort of "private" (hence, from a collectivist perspective, inferior or suspect) category.


from Dilan Esper: "Doc, it's about both. You are using unitary reasoning and assuming that the framers could not have intended to (1) protect an individual right AND (2) preserve the power of states to discipline, train, and organize the militia."

I'm not sure what you mean by "unitary reasoning"--sounds like just another label. The problem with interpreting 2A in terms of states' powers is, again, that it defies the distinction between people's rights and government powers that we see pretty consistently through the Constitution. In any event, my point was that since other parts of the Constitution establish government powers regarding the militia, it's even less plausible that 2A, located squarely in the Bill of Rights, affirming a "right of the people" that "shall not be infringed" (an obvious reference to individual rights existing logically prior to and independently of government approval) would be concerned with protecting (state) government powers over organized militia units. Government powers are already covered. 2A, like the amendments around it, is about individual rights.
7.3.2008 10:13pm
Mike Hansberry (mail):
Frankcross said:

I wonder if the militia clause isn't the best argument for Breyer's interpretation, on the theory that its very existence takes the right out of the general "frame" for the Bill of Rights.



Hmmm, perhaps the existence of the security of a free state clause places the right squarely inside the general frame of the Bill of Rights.

Note that just a few years prior to drafting the BoR, Madison used similar "free state" phrasing in his introduction to Memorial and Remonstrance:


We the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of General Assembly, entitled "A Bill establishing a provision for Teachers of the Christian Religion," and conceiving that the same if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State to remonstrate against it, and to declare the reasons by which we are determined. We remonstrate against the said Bill,



Madison's pleading as a "faithful member of a free state" was not for the autonomy of the state of Virginia, but for the liberties of her citizens under that government.



We the Subscribers say, that the General Assembly of this Commonwealth have no such authority: And that no effort may be omitted on our part against so dangerous an usurpation, we oppose to it, this remonstrance; earnestly praying, as we are in duty bound, that the Supreme Lawgiver of the Universe, by illuminating those to whom it is addressed, may on the one hand, turn their Councils from every act which would affront his holy prerogative, or violate the trust committed to them: and on the other, guide them into every measure which may be worthy of his [blessing, may re]dound to their own praise, and may establish more firmly the liberties, the prosperity and the happiness of the Commonwealth.
7.3.2008 11:32pm
Dilan Esper (mail) (www):
I'm not sure what you mean by "unitary reasoning"--sounds like just another label. The problem with interpreting 2A in terms of states' powers is, again, that it defies the distinction between people's rights and government powers that we see pretty consistently through the Constitution. In any event, my point was that since other parts of the Constitution establish government powers regarding the militia, it's even less plausible that 2A, located squarely in the Bill of Rights, affirming a "right of the people" that "shall not be infringed" (an obvious reference to individual rights existing logically prior to and independently of government approval) would be concerned with protecting (state) government powers over organized militia units. Government powers are already covered. 2A, like the amendments around it, is about individual rights.

As I said, nothing you say indicates that it wasn't about both.

And more broadly, it's perfectly clear that everyone at the time of the founding believed that the states had the power to organize, train, and discipline the militia. The prefatory clause of the Second Amendment is completely consisetent with that .
7.3.2008 11:37pm
Mike Hansberry (mail):

In searching for idiomatic usage of "bear arms", Stevens presents the following quote from the Connecticut Courant:


"The Indians begin to bear arms at the age of fifteen, and lay them aside when they arrive at the age of sixty. Some nations to the southward, I have been informed, do not continue their military exercises after they are fifty"


But did the indians lay aside their "military excercises" or their arms ? Even if we imagine that "bear arms" might mean to take part in militiary excercises, it seems "lay them aside" is an odd way of describing a cessation of taking part in military excercises.

Try substituting other supposed idiomatic meanings for "bear arms" into that sentence.

The Indians begin to [render military service] at the age of fifteen, and lay them aside when they arrive at the age of sixty. This does not flow naturally as "them" does not sync with "military service".

The Indians begin to [fight] at the age of fifteen, and lay them aside when they arrive at the age of sixty. Again, there is a lack of agreement with "them" and "fight".

The most natural agreement between "bear arms" and "them" in the quote Stevens offers occurs when one thinks of certain implements which are borne at a certain age and then set aside (put down or away) when reaching an older age.

This quote actually supports Scalia's interpretation that "bear arms" = carry weapons with purpose of confrontation.
7.4.2008 12:19am
Doc W (mail):
Dilan, EVERYTHING in my last post indicates why 2A wasn't about both. On the other hand, as long as it's understood that 2A protects an individual right to possess weapons, a right that includes using those weapons for self-defense mutual aid, I don't much care how much more people want to read into it. My interest is in debunking attempts to deny that 2A protects an individual right--or, having paid lip service to an individual right, attempts to suck the life out of it so that it doesn't limit the government in any real way.
7.4.2008 12:27am
AKD (mail):
Speaking of denial of the individual right, I was shocked (but probably shouldn't have been), when I read this statement from the ACLU's Suzanne Ito:

The ACLU interprets the Second Amendment as a collective right. Therefore, we disagree with the Supreme Court's decision in D.C. v. Heller. While the decision is a significant and historic reinterpretation of the right to keep and bear arms, the decision leaves many important questions unanswered that will have to be resolved in future litigation, including what regulations are permissible, and which weapons are embraced by the Second Amendment right that the Court has now recognized.


ACLU Blog
7.4.2008 12:54am
Tony Tutins (mail):

The ACLU interprets the Second Amendment as a collective right.

Similarly, the right to abortion is a collective right, as is the freedom of speech, and the right to be secure in one's person.
7.4.2008 3:02am
The Unbeliever:
Is it just me, or does the concept of "modern constitutional theory" sound like something that never should have been needed in the first place?
7.4.2008 3:09am
Clayton E. Cramer (mail) (www):

Indeed. One of the amendments proposed by the VA ratification convention was specifically intended to preserve existing state power over the militia: "That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same."

Roger Sherman then used nearly the identical language in one debate over whether to add an exception for militia duty based on religion: "We do not live under an arbitrary Government, said he, and the States, respectively, will have the government of the militia, unless when called into actual service...."

We can say with assurance that at least some of the Founders understood that the states controlled the militia and wanted to preserve that control as against Congress.
Doubtless there were. And they lost the debate! There was a proposal to add "for the common defence" to the Second Amendment, which arguably might have limited the right, along the lines of what John Adams argued in A Defence of the Constitutions of the United States of America and the Massachusetts Constitution (1780) that Adams largely drafted. (The evidence would suggest that he was trying to give authority to the state to regulate private militias--he specifically held that this authority would not extend to bearing arms for self-defense.) But this proposed addition lost.
7.4.2008 10:00am
Clayton E. Cramer (mail) (www):

Check out W&M Sess. 1, C. XV 1688, An Act for the better securing the Government by disarming Papists and reputed Papists and the text of 1688 Bill of Rights. I'm pretty sure it was always military weapons that were being talked about and weapons for self defence were seen as a `given' whether you're talking about English Law (and Scot's Law since the Claim of Right Act echoes the Bill of Rights) or the 2A. I don't see how having weapons for self defence would have been in any kind of question when the US Constitution was written. It seems to me most reasonable that both the 2A and the 1688 Bill of Rights were talking about citizens retaining access to military equipment.
While the Disarming Papists Act was generally understood as allowing Catholics to have arms for self-defense, this seems to have been more of an allowance than a recognized right. On the death of Queen Anne, for example, in 1714, Catholics in the home counties were temporarily disarmed. In America, Tories were disarmed during the Revolution as a public safety measure. (Tories were often allowed to retain their handguns, however, suggesting that being armed for self-defense was considered legitimate.)
7.4.2008 10:06am
Eli Rabett (www):
Construction is your term for judicial activism when you like the result
7.4.2008 10:07am
Clayton E. Cramer (mail) (www):

My interest is in debunking attempts to deny that 2A protects an individual right--or, having paid lip service to an individual right, attempts to suck the life out of it so that it doesn't limit the government in any real way.
Agreed. Arguing that 2A doesn't protect an individual right is a pretty silly position. If there were no evidence on either side, we might be reduced to textual analysis. But there is plenty of evidence of how it was understood: Tench Coxe's 1789 description of it as protecting the right to "private arms"; St. George Tucker; William Rawle; statements from Justice James Wilson and state supreme courts of the early Republic period. And those arguing that it was not an individual right don't have anything until the 20th century.
7.4.2008 10:10am
MarkField (mail):

But this proposed addition lost.


The fact that a language change is rejected is, unfortunately, ambiguous. It could mean that Congress was opposed to the idea, or it could mean that Congress thought the new language wasn't necessary because the existing law already provided for that policy. Sherman's comment, along with the fact that the states had always regulated the militia, indicates the latter was the case here.
7.4.2008 10:37am
Clayton E. Cramer (mail) (www):

The fact that a language change is rejected is, unfortunately, ambiguous. It could mean that Congress was opposed to the idea, or it could mean that Congress thought the new language wasn't necessary because the existing law already provided for that policy. Sherman's comment, along with the fact that the states had always regulated the militia, indicates the latter was the case here.
Huh? If "existing law already provided for that policy" then why did Houston v. Moore (1820) conclude otherwise? It is certainly possible that the Court was wrong (and even the dissenters agreed with the majority that the Second Amendment didn't change the federal government's plenary authority over the militia), but arguing that Congress believed that Art. I, sec. 8, which explicitly grants to Congress power:

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
didn't take away state control over the militia requires some serious evidence. Arm-waving won't do.
7.4.2008 11:31am
MarkField (mail):

Huh? If "existing law already provided for that policy" then why did Houston v. Moore (1820) conclude otherwise?


You're forgetting that the whole Federalist argument was that no BoR was necessary at all because the Constitution delegated only limited power to the federal government. The states held the residual.
7.4.2008 1:03pm
John Pate (www):
Go read the actual statute in the link I gave (I took the trouble of spending an afternoon transcribing it from the `Statutes at Large' in the Edinburgh Central Reference Library). It disarms papists of military weapons (and horses) but explicitly gives exemption to `such necessary weapons as shall be allowed to him by Order of the Justices of the Peace, at their General Quarter-Sessions, for the Defence of his House or Person.' Obviously somebody had to decide what weapons the person could keep for self defence and what he was stock-piling for military use or he could simply say, `that's just a bunch of stuff I've collected for self defence, not insurrection at at all.' Blackstone's `Commentaries' and his analysis of the 1688 Bill of Rights clause, `That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law' pulls the same trick Scalia used - limiting it to the issue of self defence when it's clearly about military weapons (by my reading I consider the `as allowed by Law' as an appeal that arming oneself was a common law right i.e. the phrase was permissive not restrictive). If you look at the contemporaneous Scottish implementation of the Bill of Rights, the Claim of Right Act, the wording there makes it crystal clear what they were talking about - and it wasn't keeping a pistol in your house, `By Dissarmeing protestants while at the same tyme he Imployed papists in the places of greatest trust civil and military such as Chancellor Secretaries Privie Counsellors and Lords of Sessione thrusting out Protestants to make roome for papists and Intrusting the forts and magazins of the Kingdome in ther hands'. Armed self defence was a common law right, as writings contemporary with the Bill of Rights makes amply clear - and the act I transcribed and linked here makes obvious.

Within the context of the US Constitution it's even clearer really: if a State tried to secede from the Union and the Fedgov or other states welched on the deal, what is the state to do - just as America did against the English -
but call out its citizens as a militia and fight its way out?

I mean, for God's sake I can read English (and the punctuation is largely irrelevant BTW whatever may be said, it used to be common for people to put commas where they imagined someone reading it would draw breath not to in any way alter the sense of the prose): `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.' What about that isn't clear? They'd just fought a war with England with whatever guns and military supplies they could beg, steal or borrow and using anyone who could figure out which end of pointy stick did the business.
7.4.2008 1:25pm
JN Heath (mail):
Mark Field --

The states hold a concurrent power to regulate the militia, unless or until Congress exercises its power to regulate the militia. Once Congress expresses its will, the state law may be preempted. The states may not enact conflicting militia laws, and unless allowed may not even augment the federal law. This is not a guess -- this is how the militia powers have been explained from the earliest date, and is exactly how commerce regulations work. It is the effect of the delegation of militia powers in conjunction with the Supremacy Clause.

If Congress does not exercise its power to "organize and arm" the militia, the states may each do so. But if Congress exercises its milita powers in ways that to the states seems deficient or ineffective, the states have no recourse. Congress may limit the militia as it sees fit, by age, size, health, occupation, sexual preference, etc., for the sake of defining a uniform plan of national defense. That is Congress's mandate and the states cannot interfere.

This power structure derives from the 1787 Constitution and was never amended.

JNH
7.4.2008 2:37pm
MarkField (mail):

But if Congress exercises its milita powers in ways that to the states seems deficient or ineffective, the states have no recourse.


You're assuming your conclusion. One of the purposes of the 2A was precisely that it limited the exercise of Congress' militia powers in a particular way so as to preserve the power of the states.

It's odd, really, the extent to which the states rights view seems to have disappeared (at least as a matter of convenience). As Dilan has suggested above, the Founders saw no contradiction in supporting both individual rights and states rights. There's no need to deny the one in order to advance the other.
7.4.2008 3:27pm
JN Heath (mail):
Mark and Dilan --

I am assuming nothing. I did hundreds, maybe thousands of hours of original research, after which I published an extensively documented article about the federal power to preempt state militia law.

When you have done hundreds of hours of research and uncovered all the cases I somehow missed, in which federal militia laws were struck down in favor of state regulations, I will read your article with interest.


JNH
7.4.2008 4:29pm
MarkField (mail):
It's no wonder people stop trying to have dialogues on the internet. First, your appeal to personal authority is, the internet being what it is, meaningless, aside from its logical insufficiency. Second, to quote Jack Balkin -- whose authority is far greater than your own -- "It turns out that there is an original principle that everyone agrees the framers and ratifiers had: it was to prevent the federal government from disarming citizen militias organized by the states. This would deter federal tyranny, insurrection, and foreign invasion. Call this the principle of preservation of state militias."*

Anyone who's done the least amount of reading on the Founding era acknowledges that a principle of the 2A was states rights. Now, it may not have been the only principle, but there simply is no scholarly dispute. If you want to deny it, that's fine, but don't expect
7.4.2008 6:50pm
MarkField (mail):
Sorry, hit post by accident. The last paragraph should read as follows:

"Anyone who's done the least amount of reading on the Founding era acknowledges that a principle of the 2A was states rights. Now, it may not have been the only principle, but there simply is no scholarly dispute that it was one of them. If you want to deny it, that's fine, but don't expect people to take your word for it."

The footnote I intended follows:

*Prof. Balkin went on to acknowledge additional purposes of the 2A.
7.4.2008 6:53pm
starrydeceases:
Mr. Cramer:

If I read your comments correctly, it looks as if you are arguing for an absolute Congressional authority over the militia. I do not believe that this is what is specified in Art. I, Sec. 8, because you must acknowledge the phrase which I will emphasize here:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;


Which clearly indicates that the Constitution contemplates supreme Congressional authority over only those certain portions of the militia that are specifically called for by the federal government in a given situation. The rest of the militia would not be "governed" (read: commanded) by Congress.

Mr Heath:

I do not believe that any state authority over the militia can only be exercise in the event that Congress fails to act. This is a plain misreading of the text. A plain reading of Art. I, Sec. 8, as I have shown here, clearly allows for the States to have primary authority over the militia, and for federal authority over those portions of the militia that Congress specifically calls into the "service of the United States".
7.4.2008 6:58pm
starrydeceases:
As for J. Scalia's "interpretation" of the meaning of "bear" and "bear arms", I believe the effect of his words is to delineate between the simple transport of arms, and the "bearing" of readily available arms that can actually be used for defense, combat, or confrontation, which strikes directly at the core of the District's bans.

After all, it is well-accepted by society that we certainly have the right to transport our arms between sites of legal employment (firing range to home, home to gunsmith, etc) while not necessarily be allowed to wear a sidearm in public, barring other licensure.

I only wish that the distinction had been made more clear in the opinion of the Court, rather than so much time having been spent on distinguishing "bearing arms" as "military service", and "bearing" as "having ready for usage".
7.4.2008 7:05pm
Tony Tutins (mail):

Dilan has suggested above, the Founders saw no contradiction in supporting both individual rights and states rights.

But I don't see how the Second Amendment provides evidence of this. It's improbable that the Founders would have intentionally written a sentence that, read one way, referred to individual rights, and, read another way, referred to states' powers, as a sort of Constitutional double-entendre. The idea reminds me of one of those old prismatic 3-D pictures, where the image changed depending on one's angle of vision.
7.4.2008 11:17pm
Mike Hansberry (mail):
Balkin's argument assumes a change in meaning took place somewhere between ratification and the early 19th century, while rejecting the alternative theory that self defense was understood at ratification.

But just when did the supposed change in meaning take place? When did the supposedly non-original keeping arms for self defense purpose come to be part of the understood meaning?

That Madison sought to place the amendment with other personal rights, that earlier the PA Minority had called for a right to bear arms amendment that would apply to self defense purposes, that Tench Coxe referred to "private arms" in describing the right in published accounts during the drafting process, that Roger Sherman's objections to the CO provision included a reference to bearing arms to defend self, and that James Wilson described the contemporaneously drafted PA right to bear arms provision as an individual right to defend self, strongly suggests that keeping arms fot self defense as well as collective defense was the generally understood meaning of the right to keep and bear arms when the Second Amendment was ratified.

Given what is know from the time of ratification and applying basic Logic, Balkin's argument that self defense was not part of the origianl meaning of the Second Amendment is shown to be very weak.

A = 2A protects right to bear arms to defend state
B = 2A protects right to bear arms to defend self

Evidence of A does not prove Only A
Evidence of B negates Only A
Evidence of A&B negates Only A


Moreover the lack of an identifiable event/occassion to demarcate the change in meaning further exposes the weakness in Balkin's reasoning. Balkin's readers are simply left to assume that his assertion is correct.

It is undeniable that at the time of ratification at least some people thought the right to bear arms included self defense. And it is also undeniable that by early 19th century, a self defense pupose tot the right to bear arms was a well accepted view. Thus a claim that at the time of ratification of 2A, the right to bear arms ONLY referred to the common defense would seem to require some extraordinary evidence. However no evidence from the ratification era of an exclusive purpose has been presented to date.

Scalia's conclusion that the right was understood to include self defense at the time of ratification of 2A is far better supported by logic and the available evidence than Balkin's assumption of a change in understanding somewhere along the way.
7.5.2008 2:40pm
MarkField (mail):

It is undeniable that at the time of ratification at least some people thought the right to bear arms included self defense.


I believe everyone, including Prof. Balkin, agrees.


And it is also undeniable that by early 19th century, a self defense pupose tot the right to bear arms was a well accepted view.


We can debate exactly when this purpose became a consensus, but it certainly was true by the time of, probably before, the Civil War.


Thus a claim that at the time of ratification of 2A, the right to bear arms ONLY referred to the common defense would seem to require some extraordinary evidence.


I don't believe anyone is making this argument. Lots of people say that the "dominant" purpose of the 2A was states rights (that's my own view, and, as I read him, Prof. Balkin's also). As I indicated above, though, almost everyone agrees that at least some people in 1790 viewed the 2A as libertarian.


It's improbable that the Founders would have intentionally written a sentence that, read one way, referred to individual rights, and, read another way, referred to states' powers, as a sort of Constitutional double-entendre.


Read my quote from Prof. Balkin again. Regardless of your own reading, he's saying (and he certainly knows) that the consensus among those who study this issue (historians and law profs) is that states rights was "a" purpose of the 2A.
7.5.2008 3:22pm
Clayton E. Cramer (mail) (www):

Which clearly indicates that the Constitution contemplates supreme Congressional authority over only those certain portions of the militia that are specifically called for by the federal government in a given situation. The rest of the militia would not be "governed" (read: commanded) by Congress.
Yes. And the relevance of this is what? You claim that the Second Amendment was adopted at least in part to protect the authority of the states over the militia. Where's your evidence for this? Houston v. Moore (1820) assumes that the full statement of the division of powers between federal and state governments over the militia is defined in Art. I, sec. 8. They were unaware of any change caused by the Second Amendment. If you want to argue that the Second Amendment was supposed to change the relationship specified in Art. I, sec. 8, go ahead, provide some evidence. But in the absence of evidence, I guess I will have to assume that the various commentaries and decisions of the early Republic that suggest that the Second Amendment did not change the relationship have it right.
7.5.2008 6:19pm
Clayton E. Cramer (mail) (www):

But I don't see how the Second Amendment provides evidence of this. It's improbable that the Founders would have intentionally written a sentence that, read one way, referred to individual rights, and, read another way, referred to states' powers, as a sort of Constitutional double-entendre,
You are assuming a lot more care in drafting than the contemporary evidence suggests. Remember, Federalists were the majority, and for the most part, didn't consider this Bill of Rights foolishness necessary. For the most part, it was considered putting suspenders on when they already had a belt. (The Constitution provided for a limited national government.)
7.5.2008 6:21pm
Clayton E. Cramer (mail) (www):

Read my quote from Prof. Balkin again. Regardless of your own reading, he's saying (and he certainly knows) that the consensus among those who study this issue (historians and law profs) is that states rights was "a" purpose of the 2A.
It would help if they had some evidence to support a position that, to be blunt, is clearly driven by their current desire to find some way to disarm the masses.
7.5.2008 6:22pm
Mike Hansberry (mail):


As I indicated above, though, almost everyone agrees that at least some people in 1790 viewed the 2A as libertarian.


But was it some people, a significant portion of the ratifiers, or even a wide majority of the ratifiers who thought of 2A as protecting an individual right to defend both self and the state? We agree that just a few decades later that was the common understanding, but we disagree on when that understanding came to be. The evidence (related in my last post) points to that understanding being present at the time of the ratification, by Federalists and Anti-federalists alike.

What is lacking is evidence that the supposed dominant purpose at the time of the ratification would cause the ratifiers to be unable to think of the Second Amendment as also protecting the right to keep and bear arms for self defense purposes.

The 2A protects state's rights argument only makes sense in an indirect way. Since 2A prevents the Federal Government from disarming the people, it is possible to form a militia (as in Fed 46) to offset a tyrannical Fed. government. Note that the proposed amendments which directly related to protection of state's rights in regards the militia were rejected by Congress and not even considered by Madison.


Your last point ought to have been addressed to Tony Tutins.
7.5.2008 6:23pm
Doc W (mail):
I read Balkin's post on his site a couple of times. I'm not sure exactly why he is trying to split the particular hairs he is slicing away at. Aside from contemporaneous commentary such as that of Tench Coxe, let us review the following:

2A says "right of the people." There is a clear distinction between government powers and people's rights elsewhere in the Constitution and Bill of Rights.

2A says "shall not be infringed." The implication of such language in 18th century America is well known. It clearly places the protected right among individual rights that government must respect.

The language of 2A is similar to that of right-to-arms provisions in state bills of rights, such as that of Pennsylvania, that cannot be interpreted as protecting the powers of state governemnts.

The above considerations RULE OUT any interpretation of 2A as a protection of state government powers, unless we are to assume that the framers of the amendment temporarily became either fuzzy-brained or intentionally cryptic.

If the framers thought that 2A would indirectly serve a purpose of protecting state organization of militias, that's all well and good, but it still leaves the direct effect of 2A as preserving an individual right to keep and bear arms.

Were the framers thinking in terms of an armed citizenry as a bulwark against tyranny, that people might organize independently of government control in defense of liberty? Undoubtedly, although calling this an "insurrectionist" theory invites malicious anti-gun references to Shays' Rebellion.

But here's the crucial point: It is simply preposterous to assume that we have a right to possess arms for the purpose of banding together to oppose tyrants, but that we must stand idly by while brigands steal our cattle, rape our daughters, and put the sword to our own throats. 2A MUST protect an individual right to self-defense and mutual aid, or it stands as an absurdity.
7.5.2008 6:26pm
MarkField (mail):

But was it some people, a significant portion of the ratifiers, or even a wide majority of the ratifiers who thought of 2A as protecting an individual right to defend both self and the state?


Well, that's the key question, isn't it? (At least, the question is key for originalists. I'm not one, so my interest is purely historical; it doesn't affect my view on the RKBA either way.)


What is lacking is evidence that the supposed dominant purpose at the time of the ratification would cause the ratifiers to be unable to think of the Second Amendment as also protecting the right to keep and bear arms for self defense purposes.


AFAIK, noboby here has made this argument. Prof. Balkin is not making it, best I can tell. All he's saying is that (1) at the Founding, states rights was "a" purpose of the 2A; and (2) individual rights were not the "dominant" purpose of the BoR generally or the 2A in particular; but (3) individual rights clearly became the dominant view by the time of the 14A; therefore (4) it's possible to interpret the 14A as protecting an individual right on originalist grounds regardless of the history of 1790.


Your last point ought to have been addressed to Tony Tutins.


It was. The block quote before my comment was from his post.
7.5.2008 7:09pm
Mike Hansberry (mail):
Doc,

The reason for Balkin's hair-splitting is found in his closing paragraph:

Heller is a permissible construction of a vague text, consistent with original meaning but not compelled by it. The right of self-defense became associated with the Second Amendment over the course of history, as generations of Americans asked what the Constitution and the Bill of Rights meant to them in their own time. The argument for the constitutional right of self-defense is, in other words, an argument from living constitutionalism. Justice Scalia is well known to despise the idea of living constitutionalism. But what he has given us in Heller is actually a living constitutionalist argument disguised as law office history.

According to Balkin, Heller is not an original public meaning decision, it is a living constitution decision.

Balkin's conclusion that "the right of self-defense became associated with the Second Amendment over the course of history" assumes that the RKBA of 2A was not broadly understood at the ratification to include protection of keeping arms for self defense. However, this supposed change in meaning remains a mystery wrapped in an enigma, as Balkin has not bothered to explain just when this change occurred. But trust him, it did, really.
7.5.2008 9:42pm
David E. Young (mail) (www):
From my perspective, which is historical, there is nothing ambiguous about the language or the terms used in the Second Amendment.

Well regulated did not mean, much less suggest, authorization or control by government in conjunction with militia.

The Second Amendment's language was based on state declaration of rights language originally written by Mason during the early Revolution. Madison helped adopt that langugae back in 1776, and he promised to support it in 1788 in the Virginia Ratifying Convention in order to obtain ratification by that state. Mason's well regulated militia reference related to self-embodying defensive associations of the able-bodied freemen directed AGAINST government officials and forces involved in constitutional violations.

Those in the legal community need to much better grasp that there is history behind the Second Amendment's words that has NEVER been taken into consideration yet, not even in the Heller decision. This relatively unknown history is going to play a very significant role in future court decisions at all levels. This statment assumes that legal professionals are not going to treat Heller like Miller and assume that the decision is based on all the available facts when it is not.

Well regulated meant effective and militia in the Second Amendment was a reference, not to a government controlled military force, but to the natural defensive force of the country, the able-bodied men. (Of course slaves were not included.) The well regulated militia reference of the Second Amendment is actually a reference to the armed civil population that keeps the military under control. I have demonstrated this quite clearly in The Founders' View of the Right to Bear Arms, a book that the Supreme Court justices are well aware of assuming they have read the Heller briefs.

The Heller decision did not get into addressing this historical information for a very simple reason. It is an entirely new way of lookiong at the language, even though it is exactly what the Founders' understood by it. Thus, it is controvesial, just like the basic issue of whether the Second Amendment protects a real individual right vs whatever it is that Justice Stevens was describing. Since the justices appear to have split early on along ideological lines over the basic issue, dragging in a new way of trying to explain the language would not have been helpful.

This is very likely the reason why Justice Scalia largley ignored the history and development of the well regulated militia language. He was trying to take the Second Amendment's language out of the military only context where it was placed by the dissenting justices and place it back in the Bill of Rights from which it had been unceremoniously torn.

It is very clear historically that EVERY state declaration of rights of the original states (including Vermont here) had a Second Amendment related provision. There were eight such declarations of rights. Four had a right to bear arms provision, and Justice Scalia noted this. However, the other four have a well regulated militia reference which is just as much of a Second Amendment predecessor as the right to bear arms provisions.

Justice Scalia and the majority did not mention or enter discussion of this fact for the reasons cited above.
7.6.2008 12:55am
MarkField (mail):

I'm not sure exactly why he is trying to split the particular hairs he is slicing away at.


I can see two pretty good reasons:

1. It's his job. Con law profs are in the business of analyzing and criticizing SCOTUS opinions. That's what they do.

2. Prof. Balkin believes in an individual RKBA and is also an originalist. He knows that the historical record from 1790 is weak, at best, when it comes to evidence in favor of an individual right. He also knows that the evidence from 1868 is very strong. He's trying to re-direct the discussion from weak ground to strong ground.
7.6.2008 10:28am
Tony Tutins (mail):

Regardless of your own reading, he's saying (and he certainly knows) that the consensus among those who study this issue (historians and law profs) is that states rights was "a" purpose of the 2A.

But how does the Second Amendment confer powers on states, and why is that its primary, or most significant purpose? I am not persuaded either by the consensus theory of truth or by the appeal to (group) authority. Even though more doctors smoke Camels than any other cigarette, I still never smoked any.
7.6.2008 12:19pm
MarkField (mail):

But how does the Second Amendment confer powers on states, and why is that its primary, or most significant purpose?


It doesn't confer power on the states, it limits the power of the federal government. In a system of limited powers, that a accomplishes a states rights purpose.

As for the value of consensus, I'll just say this: I read a lot of history, and most of the time I rely on my own understanding of the facts. But when I find that the majority of experts has reached the opposite conclusion, I consider revising my view. YMMV.
7.6.2008 1:14pm
r.friedman (mail):
OK, Randy, I have read Sollum's pieces (as well as his previous work at Balkanization), and I still think that "original public meaning originalism" lacks content. First, there is the question of whose meaning? We can say that the drafters of the constitution used words that had certain meanings to them; in some cases, the convention changed those words, not just to achieve different results, and not just to improve the style, but to express meanings different from those originally proposed. But if this is the end of the originalist enterprise, how can we explain the preferred place of the Federalist papers (or even Storey's Commentaries) in interpreting the Constitution? The papers do not attempt to define the meaning of the words of the constitution, but to identify the problems the constitution was trying to address, how it came to choose the means it did to address them, and why the means chosen were to be preferred over alernatives. In other words, the Federalist papers are documents of original intent. Why are the words and not the intent to be reified?

Second, there is the "move" (are we solving Rubik's cube?) of adding the interpretation/construction dichotomy to the mix. True, the necessary and proper clause is not as directive as the composition of the Senate clause. Of course this completely neuters originalist interpretation because it assigns all the interesting work to construction (the devil has all the best lines), and to me this is at the core of Breyer's theory of judicial decisionmaking (not limited to that expressed in Heller) of finding what are the bounds of acceptable construction and using practical considerations to place himself within that space. The problem with this is that induces an extreme form of stare decisis -- once the proper interpretation has been arrived at, then construction outside those bounds is impossible. Brown v. Board of Education broke the boundaries of an interpretation made by a court much closer to the events giving rise to the 14th Amendment and thus presumptively more originalist, yet Brown was right in a deeper sense. Originalists are convinced that the view of the privileges and immunities clause expressed in the Slaughterhouse cases is ahistorical, yet no court has been willing to break that barrier because of the weight of precedent. And what about Hans v. Louisiana, recently re-enshrined by a Rehnquist decision, which can only be justified by assuming that the original meaning of the relationship between the states and the federal government was not changed by the Civil War?

In summary, originalist interpretation is just historical word play and originalist construction is just a formalist way to avoid responsibility for the consequences of choice.

Finally, to take on Scalia's rejoinder that "We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach", it is only necessary to look to the 4th Amendment, which under current law identifies the privacy interests to be protected as those which society recognizes as legtimate. This may not be Scalia's view, see the infrered scanner case, but it is certainly the view of the court which Scalia has gone along with many times. It would certainly be nice if originalism defined an irreducible minimum of rights protected by the 4th Amendment, but it does not. And even if it did, what good would it do us in the age of the Internet, when interpretation would leave the world of today in the ether?
7.6.2008 2:00pm
Doc W (mail):
Mike &Mark: My point is that no hairsplitting is needed or useful on this. I arrive at 2A's protection of an individual right to possess weapons for self-defense by having sufficient respect for the framers to to assume that they could and would write and think consistently. The argument sits there at yesterday, 5:26 pm.
7.6.2008 3:50pm
Snarky:

Still, as I recall, his move was in the right direction.


I am not sure what the "right" direction means here. To the extent that it mean "the direction I prefer" it seems fine. To the extent that it means the "correct" direction (as in, it is correct that 2 + 2 = 4, but incorrect that 2 + 2 = 3) then it strikes me as arrogant.

I do not have a particular problem with this distinction between construction versus interpretation. Or distinction between implementation versus interpretation. I will only say that the distinction does not necessarily make sense.

The idea that a word has a meaning that is "out there" and which never touches the concrete world is a fine one. It is nice to see that we have now "discovered" that this is what the word "interpretation" really means.

However, I think that as soon as this "out there" meaning touches the real world, and you limit it or expand it in some way, you have in fact modified the meaning of the thing that is out there. That is, construction is interpretation.

"the right of the People to keep and bear Arms, shall not be infringed"

Interpretation:
If you are a person, your right to keep and bear Arms shall not be infringed.

Hypothetical constructions:
(1)
If you are a felon, your right to bear Arms may be infringed, even if you are a person.

(2)
The right to keep and bear dangerous chemicals of all kinds in your home is affirmed, since these chemicals may be used as weapons.

---------
It simply is not sensible to say the "out there" meaning of the words (that is, the abstract non-existent "thing" that is produced by interpretation) is not affected by construction. Especially pragmatically. What words mean in the real world (and that is really what matters) depends on "construction," not "interpretation."

No wonder Scalia does not bother with this distinction. It is fairly useless.

Either that, or it is positively pernicious. Let us say that "original public meaning" is the way to go. (I do not think so, but lets say that this idea that was made up by modern day originalists and is nowhere mentioned in the Constitution is the way to go.) The distinction between construction and interpretation means that pretty much anything goes, doesn't it? Except that it means that people who are making stuff up get to say that they are originalists.

Construction is what matters in the real world.

Oh wait, one could say that a construction must be inside the "frame" of the "correct" interpretation. So, yes, anything goes. But, it is OK as long as it is within the frame.

I think that this is taking your analogies too seriously. (If you narrow meaning, is that playing within the "frame", while if you expand meaning that is playing without it? If the term People excludes blacks, is that an okay "construction" within the frame, but if the term "arms" is expanded to include dangerous chemicals, that is outside the frame?)

Oh wait, we realize that we should not be a slave to our analogies! I take back that "frame" analogy. (Which I note is found nowhere in the Constitution. I guess you cannot even talk about the Constitution without making a bunch of stuff up!) Interpretation does not produce a frame that our constructions are either inside or outside of. Rather, it produces an abstract meaning, to which are constructions must be sufficiently related. And as long as our constructions are "sufficiently related" to our interpretations, we can pat ourselves on the back and call ourselves good originalists, even as we make stuff up.

No wonder Scalia doesn't "understand" the distinction between "construction" and "interpretation." It is, all things considered, a pretty fuzzy and useless distinction.

Law professors are overpaid.
7.6.2008 6:29pm
Snarky:
Here is what I take the "real" difference between interpretation and construction to be.

Interpretation is where we take the original public meaning.

Construction is where we make things up.

Construction is kind of, sort of, hopefully constrained by interpretation in some ill-defined way.

And by the way, the Federalist Papers are totally relevant to the task of interpretation, even though they contain many things which clearly fall within the category of construction.

The constructions in Federalist Papers affect interpretation while other constructions do not. Because some constructions are more equal than others. And because I said so. And besides, the Federalist Papers are cool.

And anyway, isn't this interpretation versus construction distinction that we have just made up really cool. What a great way to ignore precedent. We can just say we are merely ignoring the "constructions" of past judicial decisions we do not like.

I never did like the "constructions" found in Marbury v. Madison. Did you? They are so totally gone now. Oh my gawd! Like they totally suck!

Oh, and guess what, see interpretation affects construction, but construction does not affect interpretation. I mean, if they affected each other, that would totally make the distinction between them seem useless. So, what that means is that every case is a new day. Forget this precedent mumbo jumbo. All that matters is that our constructions in today's case are properly related to our interpretations which come from "original public meaning." (And when I say "public" meaning, I totally mean according to the dialects that were dominant in New York City. That was where Hamilton lived, and as we all know, that remains the center of the universe. Yeah, there and good old Virginia.)

Oh wait, we have to kind of sort of respect precedent. I am not sure when or how exactly. But I think we might be called a bunch of crazy radicals or something if we didn't. So, I guess that this "construction" thing really does have to feed back into our "interpretation" thingie...

But it still is a very useful distinction! Don't you see all the new horizons it opens up. At least if you are a law professor. I mean, those law reviews, they make us write such damn long articles. So much space to fill up with words.
7.6.2008 6:46pm
starrydeceases:
Mr. Cramer:

Yes. And the relevance of this is what? You claim that the Second Amendment was adopted at least in part to protect the authority of the states over the militia. Where's your evidence for this?

Perhaps you thought that the comment to which you responded was made by someone other than myself, for I made no such claim. What I was wondering was, due to a previous post of yours directed at another commenter, did you actually believe that there is absolutely no shared authority between the states and the federal governments as to the regulation of the militia, because it would seem to me from the text of Art. I, Sec. 8, that this is not the case, and I found your comment confusing in that regard.

That being said, while I do not believe that, as you argue against, that Amendment II in any way changed the nature of the relationship between state and federal authority over the militia, but I also believe that no one actually holds this view, or has argued it here.

The view that I think has been expressed here is that clearly, if Amendment II denies the disarmament of the people, then it must also in some way protect the formation of state militias, which are, after all, made up of individuals who cannot be disarmed by (at the very least) the federal government. You seem to be arguing a different point in that part of the conversation, but perhaps I do not understand your comments entirely.

I'm not arguing against you, I'm just asking for clarification of your viewpoint.
7.7.2008 3:19am
starrydeceases:
Mr. Cramer:

Looking back over the comments, I think you may have been arguing against what seems to be a mistaken point by Dilan concerning the meaning of "well-regulated", which he seems to equate with "organization" or "training" of the militia. Clearly this is not the understanding of "well-regulated" that the Framers seem to have relied upon.
7.7.2008 3:26am