Larry Solum has a very important post today on Nelson Lund's new paper on the Heller case. Larry makes explicit what was implicit in my blog post on Saturday. The bulk of Justice Scalia's opinion is its original public meaning of the Second Amendment. The day after it was announced, I described Heller in the Wall Street Journal as "the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court." After ascertaining the meaning of text, the Court concludes that the DC gun ban violates the core of this provision. I stand by my effusive praise of the opinion and its holding. Later in the opinion, however, Justice Scalia briefly and in dicta offers a list of gun laws that he says the decision does not call into question. It is on this very brief part of the opinion that Nelson Lund focuses in his paper.

In his post, Barnett on Lund on Scalia: The Construction Zone and District of Columbia v. Heller, Larry Solum explains that Heller has this dualist quality because of the implicit distinction between constitutional "interpretation" and constitutional "construction." Here is how he summarizes these concepts:

We can use the following rough cut at a statement of the distinction:

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.

The Heller majority reasons that a handgun ban infringes the core linguistic meaning of the operative clause of the Second Amendment. Indeed, that is exactly what the Court said in the following passage:

The portion of the District of Columbia ordinance that bans possession and carrying of handguns is a core case of infringement of the right to keep and bear arms. It is infringement, because a ban is the most extreme form of regulation and therefore is within the core meaning of "infringement."

But what about regulations that fall outside the "core"--we could use H.L.A. Hart's terminology and use the term "penumbra" to describe cases in which the semantic content (linguistic meaning) of the constitution is vague.

Originalist constitutional interpretation can only tell us what the constitution meant. If the original meaning was vague, then constitutional construction is required to provide some decision procedure (a supplementary rule, a balancing test, or something else) to permit the application of the vague provision to particular cases. When constitutional decisionmakers try to apply vague provisions to particular cases they are operating in what I have called the construction zone.

In a portion of his post that you should read for yourself, Solum identifies the potential vagueness in the original meaning of the terms "right," "keep," "bear," and "infringed"--each of which requires construction when a case arises in the penumbra of its meaning. He then concludes:

Once we appreciate the distinction between interpretation and construction, the seeming anomaly in Heller simply disappears. The holding in Heller resulted from interpretation--a gun ban is within the core prohibition of the Second Amendment. But there are many other questions, mentioned in various dicta in Heller, that are outside the core and hence which cannot be resolved by interpretation. Since the operative reasoning and hence the holding of Heller was limited to the core, Justice Scalia was correct when he said that "nothing in our opinion should be taken to cast doubt" on regulations that are outside the core. The constitutional status of those regulations must be resolved by work in the construction zone.

I think Solum is exactly right about this. Justice Scalia's originalist interpretation of the Second Amendment AND his application of that original public meaning to strike down the DC gun is powerful. The weakness of his opinion is confined to his failure to perceive that the other measures to which he refers in dicta would require constitutional construction that is not, strictly speaking, originalist. Lund intuits this when he says (as I quoted earlier):

The core of originalism is the proposition that text and history impose meaningful binding constraints on interpretive discretion, but that does not mean that every question can be answered by identifying (or guessing at) the "original expectations" of the lawmakers.

Lund's acknowledgment of the need to move beyond originalist interpretation is praiseworthy, as is his implicit adoption of a Presumption of Liberty to fill the gap:

The approach most consistent with the original meaning of the Constitution would reverse Justice Breyer's presumption, and require the government to provide an extremely strong public-safety justification for any gun control law that significantly diminishes the ability of individuals to defend themselves against criminal violence.

But because Lund does not explicitly acknowledge the crucial distinction between "interpretation" and "construction," I am not sure he fully appreciates the necessity of engaging in both sorts of activities, and the need to clearly identify and defend one's approach to construction. His adoption of a Presumption of Liberty to protect the "inherent" right of self-defense undermines his previous criticism of using the presumption to protect the other inherent "rights . . . retained by the people" to which the Ninth Amendment expressly refers--rights that are not to be "denied or disparaged"--as well as "the privileges or immunities of citizens of the United States" (of which the right to keep and bear arms is one).

Perhaps now that Lund has wrestled with this issue is the context of the right to keep and bear arms, and the inherent right of self defense, he may be more open to adopting a general Presumption of Liberty as a principle of constitutional construction than he was when reviewing Restoring the Lost Constitution where, following the lead of Keith Whittington, I employed the interpretation/construction distinction. I examine this distinction in greater detail in my new paper, The Misconceived Assumption About Constitutional Assumptions. But if you are seriously interested in Heller and originalism, you should really read Larry Solum's article, District of Columbia v. Heller and Originalism.

Update: Bad link to Larry Solum's blog post fixed.