Posted by Randy Barnett:
Interpretation vs Construction in Heller:
http://volokh.com/archives/archive_2009_01_11-2009_01_17.shtml#1231793432
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 [1]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, [2]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 [3]Restoring
the Lost Constitution where, following the lead of Keith Whittington,
I employed the interpretation/construction distinction in my book. I
examine this distinction in greater detail in my new paper, [4]The
Misconceived Assumption About Constitutional Assumptions. But if you
are seriously interested in Heller and originalism, you should really
read Larry Solum's article, [5]District of Columbia v. Heller and
Originalism.
References
1. http://online.wsj.com/article/SB121452412614009067.html
2. http://online.wsj.com/article/SB121452412614009067.html
3. http://www.amazon.com/exec/obidos/tg/detail/-/0691115850/theclaremontinst
4. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1285485
5.
http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1300390_code327316.pdf?abstractid=1241655
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