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.]