Over at the Volokh Conspiracy, Randy Barnett has a post commenting on Nelson Lund's The Second Amendment, Heller, and Originalist Jurisprudence. Both Lund's astute commentary and Barnett's very interesting observations relate to a series of passages in Justice Scalia's Opinion for the Court. These passages seem puzzling, because they simply announce results that are not justified on originalist grounds. Here is ain example:
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.
Here is the puzzle: how can Scalia simply announce this result? Quite some time ago, Brian Leiter noted this seeming anomaly on his blog. He wrote:
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’?
But the apparent anomaly dissolves once we recognize the implicit role of the interpretation-construction distinction in Heller. 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.
At least two components of the Second Amendment are vague, requiring construction. Consider first the word "infringement." Let us assume that 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)”. “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 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 may have been 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.” Application of each of these terms to particular circumstances may reveal the existence of borderline cases—and if there are borderline cases, then by definition these terms are vague.
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.
Read Barnett and Lund.
And you can also check out my District of Columbia v. Heller and Originalism.