Introduction
This is Part III in a series of posts on the relationship between the Supreme Court's decision in District of Columbia v. Heller and originalism as a theory of constitutional interpretation.
Heller and Originalism, Part I: An Introduction to the Series
Heller and Originalism, Part II: The Emergence of the New Originalism
Heller and Originalism, Part III: Interpretation and Construction
Part I introduced the series and observed that the Opinion of the Court in Heller adhered closely to "original meaning originalism," whereas Justice Stevens dissent seemed to rely on original intentions originalism in its discussion of original meaning. Part II traced the history of these two versions of originalism. In Part III, we will examine an aspect of New Originalist theory that was not an explicit theme in any of the Heller opinions--the distinction between constitutional interpretation and constitutional construction.
In this series of posts, I will be bracketing all questions about who is right in Heller: the purpose of this investigation is to lay bear the theoretical underpinnings of the majority opinion and the disagreements among the Justices. That is, I am not taking a position on the question whether the Heller majority is correct.
A Puzzling Passage in Heller
Before we explicate the interpretation-construction distinction itself, let's take a look a curious passage in the majority opinion in Heller:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
From a practical point of view, this passage is unremarkable. The Court simply seems to be enunciating some common sense limitations on the holding. What is puzzling about this passage is that it seems unconnected to the originalist methodology that formed the basis of the main holding in Heller--that a ban on handgun ownership violated an individual right to possess and carry weapons. That holding had been justified by a meticulous discussion of the meaning of each operate word and phrase in the Second Amendment at the time it was adopted--in each case, the Court cited evidence of usage around the time the amendment was framed, proposed, and ratified, but no such evidence is cited to justify the various limits on the right in the puzzling passage, leading Brian Leiter to comment, "Now how is this out-of-whole-cloth set of limitations on the right to be squared with the interpretive principle that "words and phrases were used in their normal and ordinary as distinguishes from technical meaning" and that "normal meaning...include[s] idiomatic meaning, but...excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation"?"
Various explanations could be offered for the puzzling passage. One possibility is that this passage was added at the behest of one of the other justices (perhaps Justice Kennedy) and it truly is a "sore thumb"--inserted only for the purpose of garnering a fifth vote and not on the basis of any principled reason of originalist theory. But there is another possibility, it may be that the kinds of restrictions that are briefly mentioned in the puzzling passage stem from a different constitutional methodology--one that is consistent with, but distinct from originalist constitutional interpretation. In this post, I want to consider the possibility that the puzzling passage and much of the speculation about the implications of Heller will need to be answered by constitutional construction--a mode of constitutional practice that is distinction from constitutional interpretation.
The Interpretation-Construction Distinction
What is the difference between "constitutional interpretation" and "constitutional construction"? In Part II of this series, we briefly noted the emergence of the distinction in the writings of the New Originalists (particularly Keith Whittington and Randy Barnett). In this Part of the series, we will explore the distinction is some depth and then consider its implications for District of Columbia v. Heller.
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).
The Role of Vagueness and Ambiguity There is a entry in the Legal Theory Lexicon on vagueness and ambiguity so I will be very brief here. A word, phrase, sentence, or clause is ambiguous if it has more than one sense: for example, the word "cool" is ambiguous because it can mean (a) hip, (b) of low temperature, or (c) of even temperament. A word or phrase is vague when it has borderline cases: for example, the word "tall" is vague, because there is no bright line between those individuals who are tall and those who are not. The same word can be both ambiguous and vague in one of its senses: cool is ambiguous and each sense of cool is vague.
Characteristically, interpretation resolves ambiguity and construction creates subsidiary rules that resolve vagueness. Why? Interpretation resolves ambiguity, because it is usually the case that there is a linguistic fact of the matter about the semantic meaning of a text that is ambiguous. For example, the phrase "domestic violence" is used in Article I of the United States Constitution: does it mean "spouse abuse" or "riot, rebellion, or insurrection"? In context, it is clear that the linguistic meaning of "domestic violence" was the latter and not the former. Construction resolves vagueness, because interpretation cannot do that work. When a word or phrase has a linguistic meaning that is vague, then interpretation has done all the work it is capable of doing. At that point, what we need is a construction that allows us to draw a line (making the vague provision more specific) or that gives us a decision procedure (allowing case-by-case resolution of the vagueness).
Interpretation in Heller
With the interpretation-construction distinction in place, let's get back to the majority opinion in Heller. The "heavy lifting" in Justice Scalia's majority opinion is done by an interpretation of the operative clause of the Second Amendment. The "right of the people to keep and bear arms" has a linguistic meaning equivalent to "the right of the individual persons to possess and carry weapons."
Much of the controversy in Heller concerned the relationship between the prefactory clause, "a well-regulated militia being necessary to the security of a free state" to the operative clause "the right of the people to keep and bear arms shall not be infringed." The essence of Scalia's position is that it is the semantic content of the operative clause that furnishes the parameters of the rule of constitutional law. The prefactory clause, according to Scalia, is like the preamble of a statute: the prefactory clause furnishes the reason for the operative clause, but it does change the semantic content of the operative clause. This means that the prefactory clause does restrict the permissible range of interpretations of the operative clause: the semantic content of the operative clause must be such that it can be understood as serving the purpose enunciated in the prefactory clause. Scalia argues exactly this: an individual right to possess and carry weapons can be understood as a mechanism by which militia's are protected from federal interference.
The remainder of the interpretive dispute between Justice Scalia and Justice Stevens is about the semantic content of the operative clause itself. Justice Stevens argued that the phrase "the people" could mean roughly "the body of the people as a collective entity" and that "bear arms" could refer to "military service." Justice Scalia disagreed, arguing that "the people" refers to "individual persons" and "bear arms" refers to "carrying weapons."
This understanding of the Heller majority is very similar to that recently suggested by Jack Balkin in his post, Is Heller an Originalist Decision?
The first part of Scalia’s opinion does make a very straightforward inquiry into original meaning. It asks what the words of the Second Amendment meant at the time of enactment. The “meaning” it looks for is what Larry Solum calls “semantic content,” the concepts that the clause uses and the ways that they are put together to form sentence meaning.
So Scalia concludes, after some discussion, that the semantic content of “keep and bear arms” means roughly the same what it means today, something along the lines of “to possess and carry weapons in case of confrontation.”
In other words, Scalia's approach to interpretation in Heller is consistent with original-meaning originalism.
Construction in Heller
Let us assume, arguendo, that Justice Scalia's interpretation of the operative clause in Heller was correct--that the Second Amendment forbids "infringement" of a right "to keep and bear arms" that is vested in individual persons. Is that sufficient to decide Heller? This question is crucial, and it is not quite as easy as it might seem on the surface. On the one hand, it might be argued that a ban on handgun ownership is an obvious violation of an individual right to keep and possess weapons. On the other hand, it might be argued that the both "infringement" and "the right to keep and bear arms" are vague, and hence that construction is required.
Each of these two components of the operative clause deserves some additional comment. Consider first the word "infringement." The verb "to infringe" had at the time of the framing a sense that seems identical or nearly identical to the modern sense, "to commit a breach or infraction (of a law, obligation," or right)" (Oxford English Dictionary). "Infringe" in this sense is vague, because there will be borderline cases--cases in which the rule or regulation may or may not be an infringement of the right. One example of this is gun registration requirements. A simple registration requirement that can easily be complied with by all citizens at minimal cost seems like a clear example of a noninfringing regulation of the a right to keep and possess weapons. But one can imagine lots of registration requirements that would be invalid--hypothetically, a registration scheme that requires the payment of a $10,000 administrative processing fee. As some point on the spectrum of burden, there will be borderline cases.
Consider second the "right to keep and bear arms." Each of the operative components of this phrase is vague (at least in some contexts). "Keeping" involves questions about the borderlines of possession. "Bearing" involves issues at the boundary of carrying. "Arms" involves the disputed cases of "weapon." And there is the further question of what constitutes the operative concept of "right."
Core and Penumbra & the District of Columbia Statute
One familiar analytic framework for analyzing problems of vagueness is provided by H.L.A. Hart' metaphor of the "core" and "penumbra." Vague words and phrases admit of borderline cases, but the very idea of a borderline entails that there are cases that are not in the vicinity of the border. Hart calls the disputed territory near the borderline, the "penumbra." Territory that is not in dispute is the "core."
One way of reading Justice Scalia's opinion in Heller might be summarized as follows:
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." It regulates "arms," because handguns are within the core meaning of weapon, as confirmed by usage at the time the Second Amendment was adopted. It regulates "keeping" and "bearing," because it prohibits all or almost all possession and carrying.
On this reading of Scalia's opinion, the work in Heller was done by interpretation of the Second Amendment. Any legal rule that accurately captured the semantic content (or original public meaning) of the text would have to forbid what the District of Columbia ordinance sought to accomplish. Of course, there was also the dicta discussed above, that goes beyond the core. That dicta would involve constitutional construction--a topic that will be discussed shortly.
But before we move to constitutional construction, we need to consider an alternative reading of the holding in Heller--a powerful argument offered by Jack Balkin in the post quoted above.
Balkin's Interpretation of Heller & the Method of Text and Principle
Jack Balkin in Is Heller an Originalist Decision? seems to disagree with the core-and-penumbra analysis of Heller. Instead, he seems to believe that constitutional construction of a vague principle was required to determine whether or not the District of Columbia's band on handguns was a violation of the Second Amendment. Here is the passage (following that quoted above) where he begins to build his argument for this conclusion
So far, so good. The next step is to note that the Amendment states a principle, not a rule or a standard. The principle is that “the right to keep and bear arms shall not be infringed.”
What does Balkin mean by "principle"? Balkin does not define the crucial concepts (rule, standard, and principle) in his post. Let me offer the following definitions of these three types of legal norm:
Rules are the most constraining and rigid. Once a rule has been interpreted and the facts have been found, then the application of the rule to the facts decides the issue to which it is relevant, except to the extent that vagueness is the rule requires the creation of some subsidiary legal norm to resolve the vagueness. In Hart's terms, "rules" have large cores and narrow penumbras.
Standards provide an intermediate level of constraint. Standards guide decisions but provide a greater range of choice or discretion; for example, a standard may provide a framework for balancing several factors.
Principles are even less constraining. Principles provide mandatory considerations for judges. Whereas, standards identify an exhaustive set of considerations for adjudication or policy making, a principle identifies a nonexhaustive set, leaving open the possibility that other considerations may be relevant to the decision.
Perhaps, Balkin sees the relationship between rules, standards, and principles differently, but this rough and ready categorization is sufficient to get our analysis of his position started.
Balkin continues:
Back to the Second Amendment. We know there is a principle: don’t abridge the right of the people to keep and bear arms. But we don’t know what the content of that principle (or set of principles) is; and the original meaning of the sentence, the clause meaning, does not tell us. It could point to any number of different principles.
The crucial question then becomes: how do we determine the content of the principle expressed by the operative clause of the Second Amendment? Balkin's next move is to provide an answer to that question:
Here’s where the opinion gets tricky. What most people would do, and what both Scalia and Stevens do, is to look back into history to see what principles the framers and ratifiers sought to put into effect through their choice of words. That is, they are looking for the “original principle” or “original purpose” of the clause, and it’s important to understand that this inquiry involves a different aspect of “meaning” than asking about the original semantic content of the clause. The argument is that if a principle was an original purpose, then we should interpret it according to that purpose today.
Balkin then identifies three candidates for inclusion in the set of "original purposes" of the Second Amendment:
(1) "principle of preservation of state militias"--"to prevent the federal government from disarming citizen militias organized by the states";
(2) "the principle of republican insurrection"--"to prevent the federal government from disarming citizen militias that were not organized by states, but that might arise spontaneously to fight a tyrannical federal government, tyrannical state government, anti-republican insurrection, or foreign invasion";
(3) "to constitutionalize the common law right of self-defense using generally available weapons".
Balkin argues that the first purpose and second purposes met with near unanimous agreement, but the third purpose is supported by "mixed evidence."
What are the implications of Balkin's two moves (the operative clause is a principle and that principle be one or more of the three purposes):
The original meaning of the text is consistent with all three purposes, including the right of self-defense. So if we wanted to construe the Second Amendment to constitutionalize the common law right of self defense, we could. There is nothing in the original meaning of the text that stops us. That is true even though the preamble speaks of militias, because, as Scalia correctly points out, this does not necessarily limit the scope of the clause. It might be one reason not to read the clause to constitutionalize the common law right of self defense, but it is not a conclusive reason.
In other words, Balkin believes that the choice between the three purposes is a matter of constitutional construction and not constitutional interpretation. And this is exactly what Balkin says:
The argument that the Second Amendment constitutionalized the right of self-defense does not follow directly from the Amendment’s original meaning, as Scalia claims it does. Just because a reading is consistent with original meaning, that does not mean that it is required by original meaning.
Rather, it is a permissible construction or gloss on the Amendment. It is a gloss that develops over time, and becomes generally and widely accepted by Reconstruction, and continues throughout the 19th century, as Scalia’s opinion suggests. However, because Scalia wants to insist that this was always an original purpose of the Amendment, he reads this 19th century history as proof of the original purposes of 1791. This is anachronistic. And, as noted above, he confuses original meaning – i.e., the content of the words used – with original purpose and original expectations.
And therefore, Balkin concludes, Justice Scalia's opinion departs from original meaning originalism insofar as it relies on purposes and expectations (and hence goes beyond the linguistic meaning or semantic content of the text):
The question of original meaning is different from the question of original purpose and original expectations. Original meaning originalism says that we are bound by the first kind of meaning: what concepts did the words point to (or what was the semantic content of the words) at the time the text was adopted? Where the original meaning is vague, we must engage in constructions to flesh out the text and apply it to present day problems.
Balkin's argument is powerful and illuminating, but at this stage, I am not yet convinced that is correct. Notice that the crucial move in his argument is his assumption that the operative clause of the Second Amendment expresses a principle and not a rule or standard. One of the interesting features of Balkin's argument is that he does not produce a textual argument for this conclusion. Instead he relies on an analogy with the First Amendment freedom of speech:
For example, the First Amendment says that “Congress shall make no law . . . abridging the freedom of speech.” The key word in this sentence is not “no” but “freedom.” Whatever the freedom of speech is, Congress may make no law abridging it. But what precisely is the freedom of speech? Does it include all acts of speaking? Is reasonable regulation of speech an abridgment of the freedom or is it merely a ban on license or abuse.”
Implicitly, Balkin is assuming that the term "right" in the Second Amendment plays that same role (the principle-making role) that the term "freedom" plays in the First Amendment. (I will assume, arguendo, that Balkin is correct about the freedom of speech.) But the wording of the two clauses may be relevantly different. "Freedom of speech" does not specify content for a legal right: there is "freedom" and it concerns (is "of") speech. The Second Amendment is (arguably) different. The term is "right" and not freedom, and it is the "right to keep and bear arms" where the phrase "to keep and bear arms" seems to provide content for a legal rule--the rule identified by Justice Scalia in Heller. Of course, the rule is not fully specified--there is vagueness with respect to what counts as infringement, what the outer limits of the right are, what is an arm, what is keeping, what is bearing, etc. But unlike the freedom of speech, the Second Amendment may provide a legal rule rather than a principle in Balkin's sense.
With this discussion of Balkin in mind, let's return to the opinions in Heller and the role of construction in the disagreements among the Justices.
Construction and the the Disagreements Between Justice Scalia and Justice Breyer
Justice Breyer's opinion is fascinating. I believe that the key to understanding Breyer's opinion is the following passages:
I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:
(1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (STEVENS, J., dissenting).
(2) As evidenced by its preamble, the Amendment was adopted “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces.” United States v. Miller, 307 U. S. 174, 178 (1939); see ante, at 26 (opinion of the Court); ante, at 1 (STEVENS, J., dissenting).
(3) The Amendment “must be interpreted and applied with that end in view.” Miller, supra, at 178.
(4) The right protected by the Second Amendment is not absolute, but instead is subject to government regulation. See Robertson v. Baldwin, 165 U. S. 275, 281–282 (1897); ante, at 22, 54 (opinion of the Court).
My approach to this case, while involving the first three points, primarily concerns the fourth.
It is not clear that Justice Breyer is even aware of the interpretation-construction distinction. Suppose that he is not, and that we amended his opinion by substituting the following for his point three:
(3) The Amendment must be construed with that end in view.
We might read Justice Breyer as accepting Justice Scalia's interpretation of the Second Amendment's linguistic meaning, but arguing that the application of the amendment to particular cases should depend on constitutional construction. Breyer would then believe that even Scalia accepts a role for construction, since Scalia (and all the Justices) accept that the right is not absolute, "but instead is subject to government regulation."
This reconstruction of Breyer's dissent sheds light on the disagreement between Breyer and Scalia one two issues: (1) the role of rational-basis review, and (2) the role of balancing tests in application of the Second Amendment.
Rational Basis Review Construction of the Second Amendment
One of the most important passages in Justice Scalia opinion occurs in footnote 27, where Scalia responds to Breyer's point that the District of Columbia ordinance would withstand rational basis scrutiny:
JUSTICE BREYER correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 8. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U. S. ___, ___ (2008) (slip op., at 9–10). In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U. S. 144, 152, n. 4 (1938) (“There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments. . .”). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.
Notice that Justice Scalia's analysis of rational basis scrutiny implicitly assumes the distinction between construction and interpretation. Application of "rational basis scrutiny" would be inconsistent with the "substance" (that is, semantic content) of the Second Amendment. If rational basis scrutiny were applied, then the Second Amendment would have "no effect."
Tests like the "rational basis" test or balancing tests (to which we shall come in a moment) are not interpretations of the constitution. Neither the equal protection clause nor the due process clause have "rational basis" as part of their linguistic meaning. Rather, such tests are subsidiary rules of constitutional construction. Scalia's point is that the content of these subsidiary rules is constrained by the semantic content of the provision that is being construed. That is, constitutional construction is constrained by constitutional interpretation.
Balancing Tests and Construction of the Second Amendment
Justice Scalia also responded to Justice Breyer's suggestion that a balancing test be used as the basis for construction of the Second Amendment:
JUSTICE BREYER moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Post, at 10. After an exhaustive discussion of the arguments for and against gun control, JUSTICE BREYER arrives at his interest balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which JUSTICE BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.
In this passage, Justice Scalia appears to be endorsing the core-and-penumbra approach to the Second Amendment introduced earlier in this post: the second paragraph quoted above begins: "We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach." Scalia's view is that subsidiary rules of constitutional law (which provide constructions of vague constitutional content) must be consistent with the "core" linguistic meaning of the text.
Conclusion: The Role of Constitutional Construction in the Future of the Second Amendment
It is already clear that the there is much Second-Amendment litigation to come, and it seems likely that "the right to keep and bear arms" will return to the Supreme Court on more than one occasion. A preliminary step is likely to be the invalidation of municipal gun control ordinances that are similar to the District of Columbia's handgun ban, but even those cases will involve a question not addressed in Heller, whether the right to bear and keep arms applies to the states. Assuming that it does, the future of Second Amendment litigation seems likely to center of questions of constitutional construction. Once it is clear that bans on gun ownership are unconstitutional, challenges are likely to focus on other regulations and restrictions--registration, licensing, qualifications for gun ownership, requirements for the storage of guns (perhaps limited to households where children are present).
Justice Scalia's Opinion for the Court clearly endorsed original public meaning originalism, but it did not endorse a particular method of constitutional construction. Of course, we can imagine that a future Supreme Court decision on the Second Amendment would involve a different configuration of Justices. Justice Kennedy might vote with the Heller dissenters to uphold a statute that Roberts, Scalia, Thomas, and Alito would strike down. If that happened, the originalist framework of Heller could be upset. But as things now stand, the crucial questions seem likely to focus on what constitutes an infringement and what are the boundaries of the right. Different methods of constitutional construction will yield different approaches to those questions, and potentially, far different outcomes for particular challenges to particular restrictions on the possession and carrying of weapons.
