Jeffrey Kaplan, Unfaithful To Textualism

Unfaithful to Textualism
JEFFREY P. KAPLAN Introduction ..................................................................................................2 I. The Language of the Second Amendment ...............................................6 A. Introduction .......................................................................................6 B. Absolutes ...........................................................................................8 C. The Second Amendments Absolute ...............................................12 D. The Conditioning Effect of a Conditioning Absolute .....................14 E. Applying the Conditioning Analysis to the Amendment ................18 II. Interpreting and Construing the Amendment ........................................26 A. Originalism and Textualism as Applied to the Amendment ...........26 B. Solutions? ........................................................................................29 C. Two Remaining Details ...................................................................32 D. Alternative Analyses .......................................................................35 III. Heller ...................................................................................................47 IV. Scalias Majority Opinion in Heller ....................................................50 A. Introduction .....................................................................................50 B. The Meaning of Well-Regulated .....................................................53 C. The Meaning of Militia ...................................................................53 D. The Significance of Necessary........................................................54 E. The Meaning of State ......................................................................56 F. The Meaning of the Right of the People ..........................................56 G. The Meaning (or Denotation) of Arms ...........................................58 H. The Meaning of Keep Arms............................................................60 I. The Meaning of Bear Arms ..............................................................61 J. The Relation Between the Absolute and the Main Clause ...............65 K. An Evaluation .................................................................................73 Conclusion .................................................................................................74
Professor of linguistics, San Diego State University. J.D., University of San Diego School of Law, 1994; Ph.D., University of Pennsylvania, 1976. Thanks to Kyle Thompson, whose undergraduate paper inspired this work; to the participants in the 2010 West Coast Roundtable on Language and Law (Janet Ainsworth, Ron Butters, Bill Eggington, Lorna Fadden, Phil Gaines, Mel Greenlee, Blake Howald, Laura Rosulek, Roger Shuy, Larry Solan, Gail Stygall, and Peter Tiersma); and to Muffy Siegel and Betty Birnergreat linguists and great friendsfor sophisticated suggestions for better analysis. All errors are my own.
Electronic copy available at: http://ssrn.com/abstract=2160589
Unfaithful to Textualism INTRODUCTION The legal meaning of the Second Amendment to the U.S. Constitution was dramatically changed in 2008 when the Supreme Court handed down its decision in District of Columbia v. Heller.1 Using tools
and understanding from linguistics, this Article will describe the language of the Amendment and evaluate Justice Scalias linguistic reasoning in his majority opinion. The Heller decision has been extensively discussed.2 What is new here is linguistic analysis of the Second Amendment and evaluation of the specifically linguistic argumentation in Scalias opinion.3
1 2
554 U.S. 570 (2008).
Volume 59 of the Syracuse Law Review published papers from a symposium on the case, including the following: Jonathan D. Marshall, Symposium Introduction: District of Columbia v. Heller, 59 SYRACUSE L. REV. 165 (2008); Richard A. Epstein, A Structural Interpretation of the Second Amendment: Why Heller is (Probably) Wrong on Originalist Grounds, 59 SYRACUSE L. REV. 171 (2008); Nelson Lund, Anticipating Second Amendment Incorporation: The Role of the Inferior Courts, 59 SYRACUSE L. REV. 185 (2008); Michael P. OShea, Federalism and the Implementation of the Right to Arms, 59 SYRACUSE L. REV. 201 (2008); Michael C. Dorf, Does Heller Protect a Right to Carry Guns Outside the Home?, 59 SYRACUSE L. REV. 225 (2008); David B. Kopel, The Natural Right of Self-Defense: Hellers Lesson for the World, 59 SYRACUSE L. REV. 235 (2008); Carl T. Bogus, Heller and Insurrectionism, 59 SYRACUSE L. REV. 253 (2008); Paul Finkelman, It Really Was About a Well Regulated Militia, 59 SYRACUSE L. REV. 267 (2008); Richard Schragger, The Last Progressive: Justice Breyer, Heller, and Judicial Judgment, 59 SYRACUSE L. REV. 283 (2008); and Linda Greenhouse, Weighing Needs and Burdens: Justice Breyers Heller Dissent, 59 SYRACUSE L. REV. 299 (2008). Other articles discussing Heller include: Akhil Reed Amar, Heller, HLR, and Holistic Legal Reasoning, 122 HARV. L. REV. 145 (2008); Alan Brownstein, The Constitutionalization of Self-Defense in Tort and Criminal Law, Grammatically-Correct Originalism, and Other Second Amendment Musings, 60 HASTINGS L.J. 1205 (2009); Saul Cornell, Originalism on Trial: The Use and Abuse of History in District of Columbia v. Heller, 69 OHIO ST. L.J. 625 (2008); Lindsey Craven, Where Do We Go From Here? Handgun Regulation in a Post-Heller World, 18 WM. & MARY BILL OF RTS. J. 831 (2010); Brannon P. Denning & Glenn H. Reynolds, Five Takes on District of Columbia v. Heller, 69 OHIO ST. L.J. 671 (2008); Brannon P. Denning, The New Doctrinalism in Constitutional Scholarship and District of Columbia v. Heller, 75 TENN. L. REV. 583 (2008); David Thomas Konig, Why the Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America, 56 UCLA L. REV. 1295 (2009); Sanford V. Levinson, United States: Assessing Heller, 7
Electronic copy available at: http://ssrn.com/abstract=2160589
As observed by Harvard Law Professor Laurence Tribe, people on opposite sides of the gun rights vs. gun control argument have tended to interpret the Amendment in a way that fits their political views.4 The text of the Amendment exhibits a grammatical structure uncommon in presentday English, allowing different interpretations to appear possible. In situations like this, linguistic analysis can make clear how the meaning is determined by the form. One tactic that will prove helpful is analyzing the same form with different words, removing the politically charged content. In his majority opinion, while Scalia displays considerable linguistic insight in arguing toward his conclusion about the legal meaning of the Amendment, he abandons his energetically advanced textualist program at a key step in the argument in favor of non-textualist arguments, and weak ones at that. A true application of the textualist program would have led to a different result in the case. Readers of this journal do not need to be persuaded that Justice Scalia conceives of himself as a textualist. Briefly, though, Scalias writings argue forcefully for textualism:
INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 316 (2009); Clark Neily, District of Columbia v. Heller: The Second Amendment is Back, Baby, 2008 CATO SUP . CT . REV. 127 (2008); Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 N.W. U. L. REV. 923 (2009); and Mark Tushnet, Heller and the Critique of Judgment, 2008 SUP. CT. REV. 61 (2009). While I was a co-author of an amicus curiae brief (Brief for Professors of Linguistics and English Dennis E. Baron, Ph.D, Richard W. Bailey, Ph.D., and Jeffrey P. Kaplan, Ph.D. in Support of Petitioners, District of Columbia v. Heller, 554 U.S. 570 (2008) (No. 07-290)) which Scalia criticized in his opinion, this article is not a defense of that brief.
4 3
LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 895 (3d ed. 2000).
Unfaithful to Textualism It is the law that governs, not the intent of the lawgiver. That seems to me the essence of the famous American ideal . . . : A government of laws, not men. Men may intend what they will; but is only the laws that they enact which bind us. . . . [I]f one accepts the principle that the object of judicial interpretation is to determine the intent of the legislature, being bound by genuine but unexpressed legislative intent rather than the law . . . under the guise or even the self-delusion of pursuing unexpressed legislative intents, common-law judges will in fact pursue their own objectives and desires . . . . When you are told to decide, not on the basis of what the legislature said, but on the basis of what it meant . . . your best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person should have meant; and that will surely bring you to the conclusion that the law means what you think it ought to mean . . . . The text is the law, and it is the text which must be observed.5
In a 2009 New York Times interview, Scalia made reference to an opinion by Justice Stevens to argue that legislators comments were not relevant to statutory interpretation: Do I have to defer to John Paul Stevens because hes the author? Justice Scalia asked. Oh, John, you wrote Chevron. You must know what it means. Of course not! John doesnt know what it means! Once you let loose the judicial opinion, John, it has a life of its own, and it means what it says. Now why should legislation be any different? Justice Scalia added. Once Congress floats that text out there, it has its own life. It means what it means. It means what it says.6 All judicial decision-making about the meaning of statutes or constitutional provisions involves both interpretation and construction.
5 6
ANTONIN SCALIA, A MATTER OF INTERPRETATION 1722 (1997).
Adam Liptak, On the Bench and Off, the Eminently Quotable Justice Scalia, N.Y. TIMES, May 11, 2009, available at http://www.nytimes.com/2009/05/12/us/12bar.html?_r=1&r=1&*ref=antoninscalia.
Unfaithful to Textualism Interpretation is the mental process of determining the (linguistic) meaning of words, phrases, and texts, while construction is the act of assigning legal meaning to a legally operative text.7 Construction is thus an illocutionary act,8 specifically a Declaration, under Searles taxonomy of speech acts.9
Textualism is distinguished from other approaches by the principle that non-textual factors should be excluded to the extent possible, so that construction comes as close as possible to manifesting no more than interpretation. So Rector of Holy Trinity Church v. United States famous statement that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers10 evokes Scalias scorn: Well of course I think that the act was within the letter of the statute, and was therefore within the statute: end of case. Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former.11
See Peter Tiersma, The Ambiguity of Interpretation: Distinguishing Interpretation from Construction, 73 WASH. U. L. Q. 1095 (1995). Tiersma attributes the distinction originally to FRANCIS LIEBER, LEGAL AND POLITICAL HERMENEUTICS (1880). Tiersma, supra, at 1097 n.4. Recently, the distinction between interpretation and construction has received focused attention, notably in 27 CONST. COMMENTARY (2010), with articles by Amy Barret, Mitchell N. Berman, Laura A. Cisneros, and Keith E. Whittington. There is a vast literature on illocutionary acts. First described by J. L. AUSTIN, HOW TO DO THINGS WITH WORDS (1962), they have been discussed prominently by John Searle in many publications (e.g., SPEECH ACTS (1969)). Other important sources include WILLIAM ALSTON, ILLOCUTIONARY ACTS AND SENTENCE MEANING (2000), and KENT BACH & ROBERT HARNISH, LINGUISTIC COMMUNICATION AND SPEECH ACTS (1979). See John Searle, A Classification of Illocutionary Acts, 5 LANGUAGE IN SOCIETY 1 (1975).
10 11 9 8
143 U.S. 457, 459 (1892). SCALIA, supra note 5, at 20.
Unfaithful to Textualism Complementing textualism is (new) originalism, the view that the original public meaning of the Constitutions text should control its interpretation.12 Scalia was an early proponent of new originalism, arguing in 198613 against original intent (old originalism) and for original meaning,14 thereby tightly linking originalism with textualism. Much comment on Heller has focused on Scalias originalism.15 The focus here will be on his textualism, but new originalisms focus on the meaning of words almost merges the two. I. THE LANGUAGE OF THE SECOND AMENDMENT A. Introduction Syntactic and semantic characteristics of the Amendment include, among others, those listed below, with the interpretive questions they raise: (i) The expression the right of the people can denote a right held by individuals or a collective right. Which meaning occurs in the Amendment? The expression bear arms can mean, idiomatically, serve as a soldier, as well as, literally, carry weapons. Which meaning occurs in the Amendment?
(ii)
(iii)
Most importantly, the grammatical structure of the onesentence-long Amendment consists of an absolute clause (A well-regulated militia being necessary to the security of
Amy Barrett, The Interpretation/Construction Distinction in Constitutional Law, 27 CONST. COMMENTARY 1, 1 (2010). Antonin Scalia, Justice of the U.S. Supreme Court, Address Before the Attorney Generals Conference on Economic Liberties in Washington, D.C. (June 14, 1986). See Lawrence Solum, District of Columbia v. Heller and Originalism, 103 NW. U.L. REV. 923, 933 (2009).
15 14 13
12
See, e.g., Levinson, supra note 2; Epstein, supra note 2; Cornell, supra note 2.
a free state) modifying a main clause. What is the meaning relation between the absolute clause and the main clause?16
Characteristic (i) is one source of disagreement about whether the Amendment guarantees an individual or a collective right. People can be simply the plural of person, but alternatively the people can mean all of us collectively (as in The people elect the president). So the right protected by the Amendment could be the right of the people collectively to arm the militia, the arms possibly being stored in armories, not possessed by individuals. The collective rights view was held by, for example, the Brady Center to Prevent Gun Violence17 and was the holding in a 2002 Ninth Circuit case.18 The individual rights view was held by, for example,
An additional syntactic-semantic property is that the expression the right of the people to keep and bear arms is a definite Noun Phrase. Definite Noun Phrases presuppose the existence of what they denote (thus The present king of France is bald, uttered in 2012, is odd in meaning because of its false presupposition that there exists a present king of France. See P. F. Strawson, On Referring, 59 MIND 320, 321 (1950)). Consequently the Amendment presupposes that the right referred to already existed when the Amendment was adopted, rather than being newly guaranteed. This makes relevant what that right was at the time of adoption. However, the presuppositional nature of definite Noun Phrases is not always manifested in the Constitution. The 26 th Amendment reads, The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. But extending the right to vote to 18 year olds was newly effected by this Amendment. Consequently there is reason to doubt the significance of the definite form in the Second Amendment. Whether the right to keep and bear arms was an old or new right is a historical, not a linguistic, question. Brady Center to Prevent Gun Violence, http://www.gunlawsuits.org/defend/second/articles/illusion.php (last visited April 15, 2008) (The purpose of the Amendment was not to protect individual citizens against disarmament by the states, but to protect state militias from disarmament by the federal government.). Silveira v. Lockyer, 312 F.3d 1052, 1086 (9th Cir. 2002) ([T]he language and structure of the amendment strongly support the collective rights view. The preamble establishes that the amendments purpose was to ensure the maintenance of effective state militias . . . .).
18 17
16
the National Rifle Association19 and was expressed in dicta in a 2001 Fifth Circuit case.20 There is no linguistic basis for choosing one interpretation over the other in the context of the Amendment. Its a constructional choice: How should this expression in the Amendment be construed? Not: What does it mean? By the time of Heller, the collective rights view had largely left the scene,21 and in Heller all nine justices agreed that what the Amendment protected was an individual right. The question was the nature of that rights connection to the militia. Characteristic (ii) will be discussed infra Part IV in the analysis of Scalias opinion. Characteristic (iii) requires linguistic analysis, to which we now turn. B. Absolutes An absolute is a tenseless clause that modifies a (tensed) main clause.22 Traditionally,23 absolutes have been seen as conveying a range
National Rifle Association, Firearms Fact Card 2012, http://www.nraila.org/newsissues/fact-sheets/2012/nra-ila-firearms-fact-card-2012.aspx?s=&st=&ps= (last visited March 21, 2012) (The right to arms derives from the right of self-defense, and therefore is an individual right.). [The Second Amendment] protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms . . . . U.S. v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001). However, the ACLU held out: [T]he ACLU has long taken the position that the Second Amendment protects a collective right rather than an individual right. ACLU, Second Amendment, http://www.aclu.org/crimjustice/gen/35904res20020304.html (last visited March 21, 2012). GREGORY STUMP, THE SEMANTIC VARIABILITY OF ABSOLUTE CONSTRUCTION 270 (1984). Stump cites G.O. CURME, A GRAMMAR OF THE ENGLISH LANGUAGE, VOL. III (SYNTAX) (1931); ETSKO KRUISINGA, A HANDBOOK OF PRESENT-DAY ENGLISH, PART II.3, 5TH ED. (1932); OTTO JESPERSEN, A MODERN ENGLISH GRAMMAR ON HISTORICAL PRINCIPLES, PART V (1940); F. TH. VISSER, AN HISTORICAL SYNTAX OF THE ENGLISH
23 22 21 20
19
Unfaithful to Textualism of relationships to their main clauses, including attendant circumstance, time, cause, reason, exception, and concession. Relevant to the Amendment, a distinction exists between absolutes expressing a causal or conditioning factor and those not doing so, for example (for ease of reference, I follow the practice common in linguistics of numbering linguistic examples): 1. Causal/conditioning absolutes a. b. c. 2. The rain being really hard, Max ran for cover. His mittens having been found, Ben ran out the door. The movie being pornographic, little Fred cannot see it.
Other absolutes a. Rain pelting down, Max walked through the quiet woods. Present company (being) excepted, lawyers are lousy musicians. The movie had a totally predictable plot, boring writing, and dull photography. That (being) said, I loved it.
b.
c.
The absolute in (1a)the rain being really hardprovides the reason Max ran for cover. In (1b), the absolutehis mittens having been foundstates a precondition for Ben to run out the door. In (1c), the absolutethe movie being pornographicstates a rationale for the prohibition against Fred seeing the movie. I will call such absolutes
LANGUAGE, PART II (1972); and RANDOLPH QUIRK, STANLEY GREENBAUM, GEOFFREY LEECH, & JAN SVARTVIK, A GRAMMAR OF CONTEMPORARY ENGLISH (1972).
Unfaithful to Textualism conditioning absolutes. In contrast, the absolute in (2a) the rain pelting downexpresses an attendant circumstance, the one in (2b) an exception, and the one in (2c) a concession. It will be shown that the
10
absolute in the Amendment is a conditioning absolute. To do this, a more detailed examination of conditioning absolutes is necessary. First, the presence of the participle being in an absolute guarantees either a concessive/exceptional reading, as in (2b) and (2c) above, or a conditioning interpretation: 3. a. The crowd silent, Miranda bowed her violin vigorously. The crowd being silent, Miranda bowed her violin vigorously.
b.
Example (3a), without being, has an attendant circumstance reading (as well as, perhaps, a conditioning reading), while (3b), with being, has only a conditioning reading.24 A second factor associated with conditioning absolutes is the presence of an individual rather than stage predicate.25 Individual predicates identify enduring or intrinsic properties: (being) French, tall, made of paper. Stage predicates identify generally transitory properties:
Why being has this effect is not clear. Stump suggests the possibility that being absolutes are idiomatic, noting that some speakers use being as (how) and being (that), as in Being as you are a giant, you move naturally in seven league boots, which are unquestionably idiomatic constructions used exclusively to express reasons and causes; perhaps adjuncts and absolutes with being are analogous. STUMP, supra note 22, at 31415 (citing VISSER, supra note 23, at 1218). This suggestion is plausible but not explanatory. Nonetheless, I have no better suggestion. Gregory N. Carlson, Reference to Kinds in English (doctoral dissertation, University of Massachusetts), in OUTSTANDING DISSERTATIONS IN LINGUISTICS 1, 1 (Jorge Hankamer ed., 1980).
25 24
Unfaithful to Textualism (being) drunk, in a good mood, amused by something. Consider the following pair: 4. a. b. The senator asleep, the party continued quietly.
11
The senator a teetotaler, the party continued quietly.
Example (4a), with the stage predicate asleep, is ambiguous between an attendant circumstance reading and a conditioning reading, while (4b), with the individual predicate a teetotaler, unambiguously has a conditioning reading. A third factor Stump identifies with conditioning absolutes is their occurrence before, not after, the main clause: 5. a. b. The wind fresh, we went sailing. We went sailing, the wind fresh.
Example (5a) is preferably understood with the absolute (the wind fresh) expressing a reason we went sailing, whereas (5b) can easily be read either way: The absolute expresses either a reason we went sailing or an attendant circumstance. In addition, conditioning absolutes are appropriately presupposed. That is, they are in, or can easily be added to, the common ground, the set of propositions shared by speaker and addressee.26 Consider the following examples: 6. a. My car being old, I didnt want my prospective mother-in-law to see it.
Robert Stalnaker, Common Ground, 25 LINGUISTICS AND PHILOSOPHY 701, 701 (2002).
26
12
b.
My helicopter being old, I didnt want my prospective mother-in-law to see it.
The addressee of (6a) either already knows that the speaker has a car or, not knowing that, has no trouble accommodating, that is, adding the proposition that the speaker has a car (in fact, an old one) to the common ground. Not so with (6b); in most contexts today, the proposition of the absolute will strike an addressee as inappropriately presupposed. In contrast, attendant circumstance absolutes need not be presupposed: In Miranda bowed her violin vigorously, the crowd silent, the absolute the crowd silent represents unpresupposed new information. C. The Second Amendments Absolute The presence in the Amendments absolute of the individual predicate necessary to the security of a free state, along with being, predicts that the absolute bears a concessive, exceptional, or conditioning relationship to the main clause. In the context of the Amendment, the relationship is obviously not concessive or exceptional, and the absolute precedes the main clause. The linguistics of the absolute therefore make it a conditioning one. In addition, it seems clear that the proposition of the Amendments absolute was in the common ground at the time of enactment. At the time of the Constitutions ratification, all thirteen states had statutes requiring
Unfaithful to Textualism citizens to serve in the militia.27 While the militias spotty performance during the war for independence28 gave rise to support for a standing army, in the debate over whether to ratify the Constitution, both anti-
13
Federalists and Federalists argued for the importance of the militia. AntiFederalists argued for it in lieu of a standing army, while Federalists argued that it provided protection against any hypothetical tyranny imposed through a standing army, thereby rendering a standing army less threatening.29 The presence in the common ground of the proposition of the absolute is inferable also from the mere fact of the enactment of the Amendment. The Constitutional Convention would not have enacted a provision presupposing a proposition broadly regarded as false, for
SAUL CORNELL, A WELL-REGULATED MILITIA 27 (2006). Cornell cites several scholarly writings in support of this view of the place of the militia in early America, including WILLIAM J. NOVAK, THE PEOPLE'S WELFARE: LAW AND REGULATION IN NINETEENTH-CENTURY AMERICA (1996), EDMUND S. MORGAN, INVENTING THE PEOPLE: THE RISE OF POPULAR SOVEREIGNTY IN ENGLAND AND AMERICA (1988), and JOHN SHY, A PEOPLE NUMEROUS AND ARMED: REFLECTIONS ON THE MILITARY STRUGGLE FOR AMERICAN INDEPENDENCE (1990). A 1777 letter to Thomas Jefferson from John Harvie included the following: Youl hear of the Dunmore Militias behaviour when Orderd to Camp. Pray do not suffer them to Escape Reprehension, . . . A well Regulated Militia may be our Salvation and Officers who are not Attentive to their duty ought to be broke like Glass and certain I am the Dunmore Field Officers were not . . . . Letter from John Harvie to Thomas Jefferson (October 18, 1777) in 8 Letters of Delegates to Congress, Sept. 19, 1777Jan. 31, 1778, at 140 (Paul H. Smith et al. eds., 19762000) (emphasis added); see also THE FEDERALIST NO. 25 (Alexander Hamilton) ([W]e shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion.), available at http://www.constitution.org/fed/federa25.htm. CORNELL, supra note 27, at 4647. In Federalist 29, Hamilton wrote if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. THE FEDERALIST NO. 29 (Alexander Hamilton), available at http://www.foundingfathers.info/federalistpapers/fed29.htm.
29 28 27
14
example, A king being necessary for national unity . . . . While there were Federalist objections to the Amendment, both specifically30 and subsumed under the general objections to the Bill of Rights, these objections did not attack the need for the militia. Rather, they questioned whether a bill of rights was needed at all, on the grounds that the new governments potential threats to liberty would be limited by checks and balances31 and enumerated powers only.32 D. The Conditioning Effect of a Conditioning Absolute It will be assumed here that legislation and constitutional provisions are speech acts, specifically illocutionary ones.33 Illocutionary acts are acts carried out by the use of language: for example, promises, warnings, requests, prohibitions, and (I assume) acts of legislation. Speakers uttering a sentence entailing a proposition that is in the common ground can condition the illocutionary act carried out by uttering the sentence on the assumed truth of the proposition. I will argue that precisely this characterizes the working of the Amendment. In each
CORNELL, supra note 27, at 60. About the proposal to include the Second Amendment, Federalist Fisher Ames mockingly wrote, Risum teneatis amici, that is, Would you refrain from laughter, my friends (translation thanks to N. Genovese, pers. comm.).
31 32 30
Id. at 48.
H. RICHARD UVILLER & WILLIAM G. MERKEL, THE MILITIA AND THE RIGHT TO ARMS 88 (2002). If they are not, but rather are non-communicative descriptions of morality, as argued by Heidi Hurd, Sovereignty in Silence, 99 YALE L.J. 945, 995 (1990), then there is no effect on the analysis I offer. The reason is that non-communicative descriptions are created under the same principles as communicative utterances. A person speaking to himself can, for example, describe a causal relation: The dishwashers full, so this pot wont go in. A speaker whose mind is full of 18 th century writings could, in the same situation, say The dishwasher being full, this pot wont go in.
33
Unfaithful to Textualism example below, the success of the speech act represented in the main clause depends on the assumed truth of the common ground presupposition expressed in the absolute. 7. a. Today being St. Patricks Day, Ill buy drinks for everyone in the house. The movie being pornographic, I will not allow little Fred to see it. The team having lost yesterday, they will never make the playoffs. The teacher being ill, class is cancelled.
15
b.
c.
d.
In (7a) the speech act is an offer, in (7b) it is a prohibition, in (7c) it is a prediction, and in (7d) it is a cancellation.34 To see the conditioning effect in these examples, imagine contexts in which the presuppositions expressed in the absolutes are recognized as false. In each case, the intended effect of the speech act vanishes, or at least is seriously compromised. If it is known that today is not St. Patricks Day, the
34
In narratives or reports, events or states can be reported as being conditioned by the truth of absolutes, as, for example, in examples (1a-b), (3b), and (4b), supra. Assertionsa kind of illocutionary actwork differently, as pointed out to me by Muffy Siegel (pers. comm.). Consider the following pair: a. Peter being a pipe-smoker, he has a beard. But Peters being a pipe-smoker is not the reason he has a beard. In fact, no one knows why those things always go together. b. #Peter being a pipe-smoker, he has a beard. But Peters being a pipe-smoker isnt what makes me think he has a beard (or, more precisely, isnt what makes me think I can reasonably assert that he has a beard). In fact, I dont know why those things always go together. (Note: The symbol # is used in linguistics to mark a language sequence that is impossible or odd for meaning-based reasons.) Only example (b) is contradictory. These examples show that in the case of an assertion, the conditioning absolute provides evidence the speaker relies on as the basis for the assertion, rather than providing the reason for some event or state. So, within the broad category of conditioning, conditioning absolutes can bear different specific relations to their main clauses.
Unfaithful to Textualism speakers offer in (7a) either becomes void or enters a kind of limbo, where what is wanted is a retraction by the speaker (Wait; its not St.
16
Patricks Day; never mind.), a dispensation from an addressee (Its not St. Patricks Day, so youre off the hook.), or a condition-free confirmation by the speaker (Its not St. Patricks Day? Well, Ill still buy drinks for everyone.). If it becomes known that the movie referenced in (7b) is not pornographic, little Fred could reasonably argue that he should be allowed to see it, and the parental prohibition either becomes void or invites retraction (or confirmation, perhaps on other grounds). If it becomes known that the team in (7c) actually won yesterday, the prediction loses its intended persuasive effect and may invite a retraction (or a reaffirmation, perhaps with different supporting evidence). If students read the notice in (7d) on a classroom door and discover, in time, that the instructor is fine, the students may reasonably infer that class will be held after all. The conditioning effect of a common ground presupposition can be seen in attempts to cancel the conditioning, which results in contradiction: 8. a. #Today being St. Patricks Day, Ill buy drinks for everyone in the house, but the reason Ill buy drinks for everyone is not that its St. Patricks Day. #The movie being pornographic, I will not allow little Fred to see it, but the reason for the prohibition is not that the movie is pornographic. #The team having lost yesterday, they will never make the playoffs, but the reason for this prediction is not that they lost yesterday.
b.
c.
Unfaithful to Textualism d.
17
#The instructor being ill, class is cancelled, but the reason for the cancellation is not that the instructor is ill.
Example (8a) is contradictory because the speaker attempts to cancel the stated reason for the act of offering; (8b) is contradictory because the speaker attempts to cancel the stated reason for the illocutionary act prohibiting Fred from seeing the movie; (8c) is contradictory because the speaker attempts to cancel the stated reason for the illocutionary act of predicting that the team wont make the playoffs; and (8d) is contradictory because the speaker attempts to cancel the stated reason for the illocutionary act of cancelling the class. Forms marking a conditioning relationship encode (and abbreviate) a chain of reasoning. To see this, consider the following, based on the prohibition example (7b): 9. The movie being pornographic, I will not allow little Fred to see it. a. Presupposition in common ground: The movie is pornographic. Presupposition in common ground: If a movie is pornographic, kids (or Fred) must not be allowed to see it. Presupposition in common ground: Little Fred is a kid.35 Therefore (prohibition): I will not allow little Fred to see it.36
b.
c.
d.
This premise is not needed if the one above is about Fred specifically, not kids generally.
35
18
If any of the speakers presuppositionsnecessary premises to the argumentare recognized as false, the chain of reasoning breaks, leaving its conclusionthe prohibitionunsupported by its stated necessary premise(s). The result is that major repair is needed, such as supplying a different chain of reasoning or simply abandoning the prohibition. E. Applying the Conditioning Analysis to the Amendment We can now apply this analysis to the Amendment. First, observe that attempting to cancel the stated reason for the speech act embodied in the main clause results in contradiction: 10. #A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed, but the reason that the right of the people to keep and bear arms shall not be infringed is not that a well-regulated militia is necessary to the security of a free state.
The following chain of reasoning makes explicit the connection between the absolute and the main clause of the Amendment: 11. A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
A chain of reasoning like this operates in the same way in the case of separate sentences related the way the absolute and the main clause are above, for example The movie is pornographic. (So) I will not allow little Fred to see it. According to Diane Blakemore, so encodes the information that the utterance it introduces is relevant as a contextual implication of a mutually manifest assumption. Diane Blakemore, Discourse Markers, in THE HANDBOOK OF PRAGMATICS 221, 239 (Laurence R. Horn & Gregory L. Ward eds., 2004). With absolute constructions, the optional so is not possible. There is no reason to limit the mutually manifest assumptions to one; in (9) there are three (a, b, and c).
36
Unfaithful to Textualism a.
19
Presupposition in the common ground at the time of enactment: A well-regulated militia is necessary to the security of a free state. Presupposition in common ground at the time of enactment: Peoples keeping arms is essential to a militia. If a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms must not be infringed. Legislative enactment: Therefore, the right of the people to keep and bear arms shall not be infringed.
b.
c.
d.
Evidence was supplied supra for concluding that the presupposition of (11a) was in the common ground at the time of enactment. The one in (11b) must have been too, given what the militia was at the time: a citizen-based armed force for which citizens supplied their own arms. Because the one in (11a) is recognizably false today (as will be argued infra), it is not in the common ground of todays U.S. speech community, although it may be in sub-communities of it. The one in (11b) is probably not in the common ground of the U.S. speech community either. Take the militia as a latent citizen-based armed force separate from the regular armed forces. For (11b) to be in the common ground, most members of the speech community must have the militia in their mental store, which presumably is not the case. In addition, (11b) requires that it be widely assumed that militia arms would have to be owned and kept individually rather than owned communally and stored in armories. The NRAs amicus brief in Heller argued that individual gun ownership is necessary for an effective militia: An effective militia
20
cannot spring forth fully-formed from a people unfamiliar with firearms. Widespread civilian familiarity with firearms from private ownership and use, on the other hand, greatly contributes to the efficacy of the militia when called upon.37 Arguing for the importance of private gun ownership suggests that that importance is not in the common ground. At this point the question might be asked: What about (new) originalism? Originalists argue that Constitutional interpretation must adhere to original meaning because, otherwise, laws would change as linguistic meaning changes, violating the nature of laws, which continue in force over time until . . . amended or repealed.38 If we are supposed to interpret the Amendment as the framers or the ratifiers did,39 dont we have to see the world as they did? We will take up this important question below, following a more detailed analysis of the truth value of the absolutes proposition (11a) above. The falsity of proposition (11a) is easy to show. This proposition is either a universal quantification, that is, a proposition asserted to be true under all circumstances and in all time, or a generic, that is, a proposition
Brief for the National Rifle Association and the NRA Civil Rights Defense Fund in Support of Respondent at 1112, D.C. v. Heller, 554 U.S. 570 (2008) (No. 07-290). Jack M. Balkin, Original Meaning and Constitutional Redemption, 24 CONST. COMMENTARY 427, 429 (2007). Balkin cites Madison for an early statement of this principle. Id. at 430 n.7. Balkin says the relevant set is the ratifiers, because only they had the authority to make the proposed Constitution law. Id. at 445. Another possibility: Since the process of enacting the Constitution also included the general public, who debated and elected the ratifiers[, p]erhaps the best description of this wider set of people would be the enactors . . . . John O. McGinnis and Michael B. Rappaport, Original Interpretative Principles as the Core of Orginalism, 24 CONST. COMMENTARY 371, 372 n.1 (2007).
39 38
37
Unfaithful to Textualism asserted to be (possibly only) generally true, like A puppy makes a nice
21
pet. Taking it as the former, it is falsified by a single counterexample, that is, a free state whose security does not depend on a well-regulated militia. Of course there are many such states, the present-day U.S. being just one. Taking it as the latter, a bit of analysis is required. If the absolute represents a generic proposition, it can be paraphrased roughly as A typical free state requires a well regulated militia for its security. Taking it this way, how to falsify it depends on whether indefinite singular generics like this one are falsified merely by some sufficient number of counterexamplesan empirical or inductivist approachor in a different manner. Under the inductivist approach, the proposition is false just the way it is when taken as a universal quantification, with the same sizable number of counter-exemplifying states. A different approach to some generics is proposed by Gregory Carlson: a rules and regulations approach.40 Under this approach, a generic sentence denotes a rule; the sentence is true just in case the rule is in effect. A simple example is a rule of a game: A bishop moves diagonally. We do not collect evidence from chess games to see if this sentence is true. The sentence is true because it is in effect as a rule of chess.41
Gregory N. Carlson, Truth-Conditions of Generic Sentences: Two Contrasting Views, in THE GENERIC BOOK 224 (Gregory N. Carlson & F.J. Pelletier, eds., 1995); see also Ariel Cohen, On the Generic Use of Indefinite Singulars, 18 JOURNAL OF SEMANTICS 183, 192 (2001); Ariel Cohen, Genericity, 10 LINGUISTISCHE BERICHTE 59, 60 (2002). Here is a slightly more complex (and subtle) example. Imagine a store where bananas sell for $0.49/lb. The manager then raises the price to $1.00/lb., but checkout
41
40
Unfaithful to Textualism Suppose the Amendments absolute clause represents a generic proposition. To see whether the proposition is true we have to check whether the rule it denotes is in effect. Whether the rule is in effect depends on what kind of rule it is. The rules denoted by generics can apply in many different domains: science, morality, linguistic meaning (definitions), games, etc. The rule expressed by the Amendments absolute is not a rule of a game or a deontic social rule like A gentleman opens doors for ladies. Nor is it a rule of law, because it has the wrong illocutionary force. Laws are Directives or Declarations42 under Searles taxonomy.43 Directives are attempts to get addressees to do something. Declarations create a match
22
between propositional content and the world, by changing the world (e.g., pronouncing a couple married). But the proposition represented by the Amendments absolute is a Representative, that is, a statement about the world that has a truth value. More importantly (and incontrovertibly), it is encoded syntactically in a subordinate (i.e., modifying) clause and consequently can have no operative force by itself.
clerks mistakenly keep selling bananas for $0.49/lb, the old price. Despite this commercial fact, A banana sells for $0.49/lb in this context strikes most people as false, because the rule that it denotes is no longer in effect, whereas A banana sells for $1.00/lb seems true, because the rule that it denotes is now in effect. Cohen (2001), supra note 40, at 193. The example develops one from Carlson.
42 43
But see Hurd, supra note 33, for a different view.
John Searle, A Classification of Illocutionary Acts, 5 LANGUAGE IN SOCIETY 1, 22 (1975).
23
Perhaps it is a definitional rule, representing part of the meaning of the linguistic expression secure free state. The idea is that that part of the sense of that expression is the proposition that a secure free states security depends on a well-regulated militia. The problem with this is that definitions, to be rightthat is, to be in effect as ruleshave to match use, that is, (possibly tacit) knowledge. The use of the expression secure free state in any relevant speech community does not require the assumption that a free state is defined in part by its dependence on a wellregulated militia for its security. This is the case today, and there is no evidence that it was not the case in the late eighteenth century. It can be argued that a free states security depends on a militia, and in writing the Amendment the framers presupposed that proposition, but this is not the same as saying that the sense of the expression secure free state included (or entailed) the proposition that a militia necessarily guarded the states security. The late 18th century belief was a belief about the world, not a component of the sense of a linguistic expression.44 The best answer is probably that the rule is a social scientific rule, stating a connection between a well-regulated militia and the security of a free state, like, for example, A well-functioning democracy requires an educated citizenry. Proposed or apparent scientific rules can be supported
In the same way, it might be widely assumed that a successful major league baseball team requires a productive farm system. But no one would argue that having a productive farm system is part of the meaning of (or is entailed by) the expression successful major league baseball team.
44
Unfaithful to Textualism empirically or shown, empirically, to be not in effect. So with scientific rules, the distinction between empirical (inductive) generalizations and
24
rules disappears. If the absolutes proposition is a social scientific law, it is not in effect, because it is empirically contradicted. Consequently, the Amendments absolute cannot be taken as representing a rule that is in effect. Under the rules-and-regulations approach to generics, then, the absolute is recognizably false, just as it is under the inductive approach and just as it is under the universal quantification understanding. If this analysis is correct, the Amendment has to be understood as expressing a false presupposition that is encoded in the absolute and entailed as the condition for the main clause speech act. The falsity of a proposition is no guarantee against the propositions being in the common ground, the beliefs of the authors of the Amendment being a case in point. However, when the overwhelming and obvious evidence from the real world contradicts the proposition, as is the case today, it becomes very hard for the proposition to be in the common ground. What follows from this? First, consider the conclusion drawn by Uviller and Merkel, pointing out that in todays U.S. there is no obvious militia. In modern usage, then, the word militiainsofar as it is heard at alldescribes no organization genetically related to the ennobled assembly identified by the term as originally written in the Constitution. . . . Therefore, the
Unfaithful to Textualism introductory clause of the Second Amendment is today devoid of meaning, an empty vessel from which time and history have sucked every trace of the considerable substance it once had. And the right standing upon itas the right memorialized in the second clause does collapses for lack of footing.45 But, if next year we have a real militia, and it is necessary to the
25
security of the U.S., under Uviller and Merkel's view the Amendment will presumably revive, doing what it says, namely, guaranteeing the right to keep and bear arms for the sake of militia service. But whether the absolute encodes a universal quantification or a generic, either way it was false from the beginning and remains falseit was never true, even though it might have seemed true at the time of its enactment and even if it was deemed true (say, by a court). If it has never been true, then the main clause never had a footing that was true, and its effect depended on a false proposition being in the common ground. Because the proposition was (mistakenly) believed to be true, and widely so, it was in the common ground at the time of adoption, making the Amendment effective, though mistakenly, at that time. Today is a different story. Because the absolutes clause is recognizably false, the main clause speech act is unsupported by its stated necessary condition, voiding its intended effect.46 Because the Amendment is part of the Constitution,
45 46
Uviller & Merkel, supra note 32, at 158.
If constitutions are not illocutionary, see Hurd, supra note 33, the point holds but is described slightly differently. Non-illocutionary utterances can include word sequences encoding propositions which function as conditions. A captains ship log or private journal might include The crew being unhappy, I must increase the rum ration.
26
the failure of the chain of reasoning creates a big legal contradiction: What the law says it does, it doesnt do, but, being law, it does. Below I will briefly discuss possible solutions to the significant legal problem this creates. But first we need to take a closer look at originalism. II. INTERPRETING AND CONSTRUING THE AMENDMENT A. Originalism and Textualism as Applied to the Amendment Originalism has at least two forms. Original intent requires interpreting the Constitution according to the intent of the drafters (or delegates or ratifiers).47 Original intent did not last long because it raised intractable problems both of psychology (how to know the minds of legislators?) and of multiple intents (a legislating body comprises actors with many and sometimes irrelevant or contradictory intents).48 Original meaning (the new originalism) requires seeking the original understanding of the language, its original public meaning.49 Either way, originalism is justified on grounds of popular sovereignty and through the Constitutions having been written. The Constitutions written
If the Amendment is not illocutionary, the falsity of the absolute still spoils the description encoded in the main clause. See, e.g., Balkin, supra note 38, at 444 n.44 (citing Edwin Meese III, Address before the American Bar Association, in THE GREAT DEBATE: INTERPRETING OUR WRITTEN CONSTITUTION 9 (Paul G. Castle ed., 1986)).
48 49 47
See Balkin, supra note 38, at 44445.
Lawrence Solum, District of Columbia v. Heller and Originalism, 103 NW. U.L. REV. 923, 933 (2009); Mitchell N. Berman, Constitutional Constructions and Constitutional Decision Rules: Thoughts on the Carving of Implementation Space, 27 CONST. COMMENTARY 39, 42 n.6 (2010). According to Berman, the term new originalism is attributable to Keith E. Whittington, The New Originalism, 2 GEO. J.L. & PUB. POLY 599 (2004).
27
form ensures permanence of the fundamental law democratically enacted in it.50 The original understanding of the Amendment naturally included the background assumptions necessary for the Amendment to make sense and apply, including the presuppositions (11a) and (11b) above. Pegging original meaning to the public suffers from the same psychological problem as original intent: how to know the minds of members of the public? Original meaning seems to reduce to textualism: not how did people understand Text X? but what did Text X mean?51 Answering the second question could well require a historical examination of word meaning at the time of ratification, but we would not want to say that the meaning of some text was necessarily precisely how people understood it at that time. The meaning of any text, old or new, can bepartlyfree from how the text is understood. The main source of the possible discrepancy between meaning and understanding is mistakes. If I bet you
Tara Smith, Originalisms Misplaced Fidelity: Original Meaning is not Objective, 26 CONST. COMMENTARY 1 (2009). However, Smith criticizes both justifications. Among her criticisms of the popular sovereignty pillar is the observation that it misses the fact that the Constitution was enacted without the participation or even consent of excluded groups such as women, blacks, and those without property. Whats more, the Founders, fearing unvarnished majority rule, were not perfect democrats. Smith criticizes the link between written-ness and originalism on the grounds that the original ideas of the Founders do not limit the interpretation of the written language, because that interpretation is objective, not subjective, and open-ended. A word refers to a kind of existent, not to [e.g., Founders] beliefs about a kind of existent. Id. at 49. Thus, while [o]riginalism does reflect an undeniable truth, that truth concerns a comparatively innocuous claim. Its fidelity is misplaced insofar as it is directed at original meaning rather than at the law's objective meaning. The latter is what the rule of law truly demands. Id. at 6. [The] main distinguishing features [of new originalism] include an explicit focus on textual meaning as opposed to authorial intentions . . . . Berman, supra note 49, at 42 n.6; see also Smith, supra note 50.
51 50
28
all the cash in my wallet, believing I have $10 in it, having forgotten the $200 I withdrew from an ATM last evening, the meaning of my words and my understanding diverge. Here is another example, from John McGinnis and Michael Rappaport52: Imagine mineral deposits believed to be gold at the time of Constitutional ratification, thereby (once minted as coins) apparently satisfying the Constitutions Article I 10 requirement that states permit only gold and silver to serve as legal tender. The deposits turn out later to be some other mineral closely resembling gold. A later court in possession of the new facts would presumably recognize that the deposits and coins were not gold. As McGinnis and Rappaport observe, Even people who believed in 1787 that the deposits were gold would now accept that they had been mistaken.53 So it is with the Amendment: The ratifiers were mistaken about the link between a well-regulated militia and the security of free states. There simply is no general link, despite what the Amendment says and the ratifiers believed. McGinnis and Rappaports example is about a mistake in denotation, not sense: The denotation of the Constitutions word gold does not include the deposits or coins, although people once thought it did. The Amendments problem is a mistake in presuppositions that are part of the meaning of the Amendments language. But presuppositions have a hybrid nature. They are semantic, part of the (linguistic) meaning of a
John O. McGinnis and Michael B. Rappaport, Original Interpretative Principles as the Core of Orginalism, 24 CONST. COMMENTARY 371, 37980 (2007).
53 52
Id. at 380.
Unfaithful to Textualism text, but they must also be part of the relevant speech communitys common ground in order for the text that presupposes them to uncontroversially make sense. When they are recognized as false, the text no longer does. Therefore, based on the analysis given above, the Amendment
29
must today be interpreted as presupposing a recognizably false proposition that is encoded in the absolute and entailed as the condition for the main clause speech act. Because the absolutes clause is obviously false, the main clause speech act is unsupported by its stated necessary condition, rendering it infelicitous. What people mistakenly believed in 1791 does not matter. Had the truth been clear to the original enactors, they would not have enacted the Amendment that they did. Now that the truth is clear, the original misunderstanding cannot reasonably be held to condition a law. B. Solutions? So what should happen? As observed supra part I-D, something normally has to happen to repair a speech act with a recognizably false condition, as in the following examples: 12. A: Today being St. Patricks Day, Ill buy drinks for everyone! Today isnt St. Patricks Day. Oh, well then . . . Dont worry, youre off the hook.
B: A: B:
Unfaithful to Textualism 13. Dad: The movie being pornographic, you cant see it. But its rated G. Let me check. Hm, youre right, it is. So can I see the movie? OK.
30
Little Fred: Dad: Little Fred: Dad:
A constitutional provision representing a conditional speech act whose stated necessary condition is demonstrably false raises a problem which, as far as I know, has not been explicitly addressed by courts or scholars.54 Justice Scalia implicitly recognized the problem in his majority opinion in Heller: Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.55 Amending the Amendment is the obvious solution, but amending the Constitution is very difficult. Mostly what has happened is that the Supreme Court, until Heller, ignored the problem by refusing to grant
It has been addressed implicitly by constitutional amendments: The Article VI 2 requirement that escaped slaves be returned from free to slave states presupposed the existence of slaves. The Thirteenth Amendment ended slavery, making the provision moot. Similarly, the Thirteenth and Fourteenth Amendments superseding the Article I, Section 2 provision that slaves were to be counted as three-fifths of a person had the effect of cancelling the presupposition of the existence of slaves.
55
54
Heller, 554 U.S. at 636.
31
certiorari to Second Amendment cases.56 Each denial of certiorari left in place a law restricting individual gun ownership. This occurred most recently in 2003 in Silveira v. Lockyer.57 The denial of certiorari in that case left untouched the Ninth Circuits holding that the Amendment protected a collective right. One possible reason for the Supreme Courts routine denial of certiorari in Second Amendment cases is that the Court did not want to confront the problem identified by Scalia above. The petitions denied by the Court were all appeals from cases upholding the constitutionality of laws that limited individuals rights to keep and bear arms. Those lower court holdings presupposed the existence of the militia and read the Amendments protection of arms ownership as only for the purpose of the militia. Those courts could thus easily observe that a persons weapon was not for militia service and hence find ownership of the weapon unprotected by the Amendment. The result was that until Heller, the Amendment was for practical purposes legally moot. One can only speculate why the Court granted certiorari in Heller but not in Silveira. A third possibility (in addition to amending and ignoring) would be for the Supreme Court to recognize the interpretation of the Amendment
See, e.g., Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983); United States v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978); United States v. Warin, 530 F.2d 103 (6th Cir 1976), cert. denied, 426 U.S. 948 (1976); Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied sub nom., Velazquez v. U.S., 319 U.S. 770 (1943); United States v. Kozerski, 518 F.Supp. 1082 (D.N.H. 1981), affd, 740 F.2d 952 (1st Cir. 1984), cert. denied, 469 U.S. 842 (1984).
57 56
540 U.S. 1046 (2003).
Unfaithful to Textualism (the main clause protection of a right is conditioned by a recognized-asfalse presupposition) but construe it in a way that contradicts what it (linguistically) means. Of course this option is not available to a textualist. What the Court could not reasonably do is interpret the
32
Amendment as protecting the right of individual citizens to keep and bear arms regardless of the recognized falsity of the absolute clause. C. Two Remaining Details If the Amendment were felicitous, it would protect the possession of weapons for the purpose of the militia. What weapons? Bearable ones that are relevant to the militia. The limitation of the denotation to bearable militia-relevant weaponry is a particularized conversational implicature,58 generated by Grices maxim of Relevance (whose content is deceptively simple: Be relevant). Because of the content of the absolute clause and because of the dependence of the main clause on it, the only arms whose possession is protected are those relevant for militia purposes. In the Gricean system, conversational implicatures must be calculable. The calculation of the implicature in question goes like this:
See H. Paul Grice, Logic and Conversation, in SYNTAX AND SEMANTICS 3: SPEECH ACTS 41, 43 (Peter Cole & Jerry Morgan eds., 1975). Grices work is the foundation for an entire subfield of linguistics, Gricean pragmatics. Particularly seminal subsequent works include: Laurence R. Horn, Towards a New Taxonomy for Pragmatic Inference: Q- and R-Based Implicature, in MEANING, FORM, AND USE IN CONTEXT 11 (D. Schiffrin ed., 1985); STEPHEN C. LEVINSON, PRESUMPTIVE MEANINGS (2000); DAN SPERBER & DEIRDRE WILSON, RELEVANCE: COMMUNICATION AND COGNITION (2d ed. 1995). The word conversational in conversational implicature is a term of art and does not restrict implicature to conversation.
58
Unfaithful to Textualism The drafters have said that a well-regulated militia being
33
necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. Arms denotes all weaponry. People can only bear arms that they can carry. Therefore the drafters could not relevantly have intended, by enacting the Amendment, to protect the possession of non-bearable arms such as artillery or tanks or planes. Therefore, not all arms are included. Bearable arms include weaponry not suitable for militia purposes, such as bows and arrows, boomerangs, tasers, and brass knuckles. The absolute clause would not be maximally Relevant if the framers had meant to protect any weapons other than militia-suitable ones. Assuming Gricean Relevance, it follows that the Amendment was intended to protect only militia-suitable weapons. Because it is a conversational implicature, this limitation can be cancelled,59 for example by appending a phrase like and arms means, here, any weaponry. But there does not seem to be any implicature that bearable and militia-relevant weapons ordinary citizens do not ordinarily possess, like machine guns, grenades, and small rocket launchers, are excluded from protection. Any court finding in the Amendment a restriction on the types of bearable arms whose possession the
59
Conversational implicature is distinguished from semantic entailment by (inter alia) its cancellability. Entailments cant be cancelled: #We ate broccoli but no vegetable is contradictory.
34
Amendment protects is engaging not in interpretation, but in construction not based on textual meaning. One puzzle about the interpretation of the Amendment remains. Consider the Constitutions Article I 8: The Congress shall have the Power . . . To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, . . . reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress . . . . Art. I 8 grants specific powers to Congress to do various things with respect to the (pre-existing) militia. So the Amendment, by guaranteeing that people can own firearms, ensures that the militia can function; and Art. I 8 grants Congress the power to call up, organize, etc., that militia. The puzzle comes from the presence of arming in the second to clause of Art. I 8. If the purpose of the Amendment is to secure a (well-regulated) militia in order to protect the security of the nation, and Congress has the power to arm the militia, why is the Amendment necessary at all?60 Perhaps the purpose of the Amendment is simply to protect the right to personal firearm ownership unrelated to militia service, as gun rights supporters believe and as Scalia ultimately concludes. But if
See Glenn Harlan Reynolds & Don B. Kates, The Second Amendment and States Rights: a Thought Experiment, 36 WM. & MARY L. REV. 1737, 174445 (1995). Reynolds and Kates adduce the apparent clash between Art. I 8 and the Amendment as one argument for the individual right interpretation of the Amendment and against a states rights interpretation.
60
35
that is the case, why did the framers include the absolute clause? Why not write a Second Amendment reading flatly, The right of the people to keep and bear arms shall not be infringed?61 The assumption here is of rational legislating. Of course, there may have been (e.g., political) reasons to include the absolute clause that are irrelevant to the Amendments interpretation. Perhaps the answer to this interpretive conundrum is that Art. I 8 only gives Congress the power to arm the militia, which does not preclude its not doing so. Once the Amendment became part of the Constitution, the congressional arming power became, perhaps, a back-up; the Amendment guaranteed the people the right to own firearms for the sake of the militia, and Congress could, if need be, additionally or instead, arm the militia (say, if it found militiamens arms insufficient or inadequate). D. Alternative Analyses This section will examine two alternative analyses. First, in Nelson Lunds amicus curiae brief in Heller, the following argument is made: Suppose that a dean announces: The teacher being ill, class is cancelled. Nothing about the deans prefatory statement, including its truth or falsity, can qualify or modify the operative command. If the teacher called in sick to watch a ball game, the cancellation of the class remains unaffected. If the dean was secretly diverting the
Paul Finkelman points out that only the Second Amendment has an explanatory clause, and if the First Congress wanted to protect an individual right to bear arms, it would not have cluttered up the Amendment with a discussion of the militia. Paul Finkelman, It Really Was About a Well Regulated Militia, 59 SYRACUSE L. REV. 267, 268 (2008).
61
Unfaithful to Textualism teacher to work on a special project, the class is still cancelled. If someone misunderstood a phone message, and inadvertently misled the dean into thinking the teacher would be absent, the deans order is not thereby modified. The Second Amendments grammatical structure is identical, and so are the consequences.62 According to Lunds argument, the absolute is irrelevant. But Lund's example involves lies or, like the bar offer example, mistakes, illegitimizing the speech act of class cancellation. The relevant chain of reasoning63 is operating: If a teacher is sick, class is cancelled, with the teachers illness being the stated reason for the cancellation. If the dean cancels the class at its starting time, and the students have no contrary evidence, the cancellation will be successful. But if the deans announcement precedes the classs starting time, students who discover
36
before the classs starting time that the reason given for the cancellation is false may conclude that class will be held. Whether class is actually cancelled depends on the evidence discovered. Has the instructor just been seen in the department hall, looking ready to teach? If so, whether class is cancelled becomes a knowledge problem: To what extent does the false proposition of the conditioning absolute depart the common ground in the relevant speech community (the class), replaced by the truth (namely, that the instructor appears likely to teach)? Once the conditioning absolute in Lunds example is recognized by the speech
Brief for Second Amendment Foundation as Amicus Curiae Supporting Respondent at 89, District of Columbia v. Heller, 554 U.S. 570 (2008) (No. 07-290).
63 62
See examples (9) and (11), supra.
37
community as false, the speech act that depends on it becomes infelicitous. The same goes for the Amendment. But suppose that an interpretation of the Amendment is possible under which the recognized falsity of the absolute is irrelevant. That is, suppose speakers divide, some understanding the Amendment as I have described it and some as Lund seems to read it. The issue of what happens when a conditioning absolutes proposition is false was tested by means of a questionnaire submitted to eighty-seven students in two upper-division introductory linguistics classes at San Diego State University and eleven other adult subjects.64 About half the student subjects had taken at most one previous linguistics course and about half had no background in linguistics at all. The nonstudents were not linguists and had no legal background. The questionnaire was administered to students on the first day of the semester and to the non-students around the same time. The questionnaires contained one of the two items given below in (15), along with the instruction given in (14): 14. Please read the following examples and answer Yes or No for each, andif you canprovide a brief explanation. a. A bar patron announces, Today being St. Patricks Day, I will buy drinks for everyone in the bar.
15.
Suppose he is mistaken about the date. Its not St. Patricks Day. Should he be held to his offer?
64
On File with the author.
38
___ YES b.
___ NO
Explanation:
A city ordinance includes the following provision: Water being an abundant resource, property owners shall have an unrestricted right to irrigate their property as they see fit.
Suppose, one hundred years after the ordinance was adopted, population growth and drought have resulted in water being scarce. Should the ordinance still apply? ___ YES ___ NO Explanation:
The questionnaire also included two distractor items. The hypothesis being tested was that a false conditioning absolute would be understood as voiding a main clauses speech act. Here are the results: For the bar offer question (a), there were 40 NO responses and 10 YES responses. That is, 80% responded as predicted: The bar patron should not be held to his offer. For the ordinance question (b), there were 39 NO responses and 9 YES responses, that is, 81.25% responded as predicted: The ordinance should not apply. Counting only responses from native speakers of English, the results were nearly identical: For the bar offer question, 25 NO responses (83.3%) and 5 YES responses and for the ordinance question, 28 NO responses (84.8%) and 5 YES responses. Explanations from subjects answering NO tended to show intuitions consistent with the hypothesis, for example: The abundance of water is a central tenet of the law and is a dependent clause in that sentence. If water is no longer abundant then the rest of the law is invalid because it loses its main support and reasoning.
39
If water is no longer abundant, the ordinance is no longer applicable. The ordinance was predicated upon being abundant [water]. They should have said When water is an abundant resource Because the independent clause I will buy drinks . . . is only in result of the dependent clause Today being St. Patricks Day. Since it is not St. Patricks day he shouldnt be held accountable. His preposition [sic] was contingent upon it being St. Patricks Day. Since it is not actually St. Pattys day he is no longer accountable. One cannot happen without the other. Unless it is in fact St. Patricks Day, he should not buy drinks. Conditional. Even explanations from some subjects answering YES showed semantic intuitions which supported the hypothesis: The ordinance should apply from a legal standpoint until it is rescinded. From a practical standpoint it should not apply, as the first phrase is no longer valid. The writer of the above response interpreted the ordinance as predicted by the hypothesis, but made a judgment about law, that is, in effect, construed it differently from its interpretation. There were only four explanations that clearly contradicted the hypothesis: He offered and therefore should be held to his commitment. because he still offered them that day and he could of [sic] confused other people at the bar. There was no way of knowing this ordinance would affect the pop. growth in the future. If resources seemed abundant then yes the ordinance should still apply.
40
I would have to say that the bar patron should still buy the people drinks, since he already announced that he will, even if it isnt really St. Patricks day. Without a strong conditioning effect as hypothesized, such lopsided results could not have occurred. Nonetheless, the minority interpretationthat a false conditioning absolute does not void a speech actmay be genuine. Frankly I doubt this, because the type of grammatical construction in question, an absolute, is relatively unfamiliar today and requires careful thought to process. The minority interpretation may just be noise rather than reality. But since there is no way to know this, we will proceed temporarily on the assumption that the minority results, echoing Lunds interpretation, are real and relevant. Assuming that courts care about evidence about meaning gathered from the speech community (a generally over-optimistic assumption65), it might be supposed that the speech community divide suggested by the survey results could permit a court to choose either of the competing interpretations. In the case of a normal linguistic ambiguity, where all interpretations are licensed by the linguistic structure66 and are part of any native speakers competence, a court that has to decide what some legally
See generally, e.g., LAWRENCE M. SOLAN, THE LANGUAGE OF JUDGES (1993); Peter Tiersma & Lawrence M. Solan, The Linguist on the Witness Stand: Forensic Linguistics in American Courts, 78 LANGUAGE 221 (2002). For example, a phrase structure ambiguity (cold beer and hot dogs: the hot dogs are, or are not, cold), or ambiguity due to the location and meaning of an empty category (Barack loves the presidency more than Michelle: more than he loves her, or more than she loves the presidency), or lexical ambiguity (Fred went to the bank: the financial institution or the edge of a body of water).
66
65
41
operative language means may reasonably choose one interpretation. The basis might be extrinsic, for example, evidence outside the text such as facts tending to prove authorial intent, the purpose of the text, or other factors playing into construction. Here, though, Lunds interpretation is hard to explain linguistically. But it is not a problem for judges; their responsibility is only to decide cases, not figure out why some stretch of language can, or cannot, have some meaning. Nonetheless, one fact relevant to deciding a case about the meaning of the Amendment is the presence of the absolute. Lunds interpretation effectively reads it out of the sentence, thereby contravening Gricean Quantity and Relevance.67 Consequently, on a linguistic basis alone, if there are truly two readings of the Amendment, it would be more reasonable for a court to select the reading that takes the absolute as relevant than to select the reading that doesnt. This conclusion is bolstered by the existence of the (Gricean) principle of constitutional and statutory interpretation that all words are to be given effect68: All other things being equal, a court should choose an
See Grice, supra note 58. The second maxim of Quantity reads, Do not make your contribution more informative than is required. Id. at 45. Thus, any information communicated is expected to be relevant. The overlap between the second maxim of Quantity and the maxim of Relevance has given rise to a great deal of theoretical development, and is partly responsible for the development of a whole post-Gricean theory called Relevance Theory. See, e.g., Sperber & Wilson, supra note 58. As noted by Stevens in his Heller dissent, 554 U.S. at 643 (Stevens, J., dissenting), this principle was stated by the Supreme Court for the first time in Marbury v. Madison, 1 Cranch 137, 174 (1803): It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.
68
67
Unfaithful to Textualism interpretation that gives effect to all words of a provision over one that does not. Eugene Volokh offers a second analysis.69 Volokh argues that constitutional words like the Amendments absolute are justification
42
clauses which bear only a weak relation to their operative clauses, namely to disambiguate (as we will see, a claim asserted also by Justice Scalia in Heller), and which are included mainly for rhetorical reasons: [E]arly constitutions were political documents as well as legal ones. They were meant to capture peoples allegiance, both in order to get the provision approved, and to persuade future generations to adhere to it. . . . [S]etting forth the justifications for a provision makes perfect rhetorical sense. This . . . counsel[s] against viewing the presence of the clauses as something deeply portentous . . . .70 [T]he justification clause . . . might have a political and educational goalstressing to the public and government officials the connection between an armed citizenry and freedom, just as other provisions may aim to persuade people about the desirability of a more perfect Union . . . .71 Volokh collected thirty-seven examples, four with absolutes, of justification clauses from early state constitutions, including this one from the 1842 Rhode Island Constitution: The liberty of the press being essential to the security of freedom in a state, any person may publish his
Eugene Volokh, The Commonplace Second Amendment, 73 NYU L. REV. 793 (1998).
70 71
69
Id. at 79697. Id. at 807.
43
sentiments on any subject, being responsible for the abuse of that liberty . . . .72 But the interpretation of the examples he cites is just like that of the Amendment. The Rhode Island Constitutions provision above has the same sort of chain of reasoning already discussed: 16. a. Presupposition in the common ground: The liberty of the press is essential to the security of freedom in a state. If the liberty of the press is essential to the security of freedom in a state, any person may publish his sentiments on any subject. Legislative enactment: Therefore, any person may publish his sentiments on any subject.
b.
c.
If it is NOT in the common ground that the liberty of the press is essential to the security of freedom in a state (16a), it does not follow that any person may publish his sentiments on any subject. And, as above, cancellation of the conditioning results in a contradiction: 17. #The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, but the liberty of the presss being essential to the security of freedom in a state is not the reason for the guarantee that any person may publish his sentiments on any subject.
The conditioning effect of the absolute like the one in the Rhode Island Constitutions provision is hardly noticed because of the nature of such absolutes as apparent truisms.
72
Id. at 794.
Unfaithful to Textualism Part of the evidence Volokh offers for his claim that parts of provisions like the Amendments absolute are simply justification clauses is what he calls the under- and over-inclusiveness of operative clauses, in relation to their justification clauses. Specifically with respect to the Amendment, Volokh writes that the operative clause is underinclusive because Congress has no obligation, for instance, to properly train the militia, or to demand that it be armed. Congress may
44
even take steps that might undercut the value of a well-regulated militia to the security of a free state, for instance by creating a standing army.73 The operative clause is overinclusive, according to Volokh, because the right to keep and bear arms belongs to the people, that is, to all the people. The justification clause, though, refers to the militia, which has always comprised able-bodied men from age eighteen to forty-five, rather than all people.74 If the Amendment is interpreted as I have argued it must beas protecting an individual right to bear arms because of the necessity of the militia for the security of the statepotential action or inaction by Congress would seem to be irrelevant to that interpretation. The Amendment protects a right, conditioning the protection on the truth of an
73 74
Id. at 802.
Id. at 80203. Volokh, fittingly for a professor of constitutional law, still expects justification clauses to have some legal effect. He does not say what this is for any of the examples he cites or for the Amendment, but he does write this: I believe the justification clause may aid construction of the operative clause but may not trump the meaning of the operative clause: To the extent the operative clause is ambiguous, the justification clause may inform our interpretation of it, but the justification clause cant take away what the operative clause provides. Id. at 807.
Unfaithful to Textualism assumption. The Constitutions failure to require congressional support for what is assumed does not change the assumption. Congressional
45
action could change the perceived truth value of the assumption, and over time in fact has done that very thing by supplanting the militia with a standing army, resulting in a new understanding of the Amendment. But this in no way supports an understanding of the Amendment under which the conditioning absolute becomes irrelevant to the Amendments interpretation. So the underinclusiveness argument is not persuasive for the purpose of interpreting the Amendment. The overinclusiveness argument is more significant. On its face the operative clause secures gun ownership rights to women, to men of other than militia age, to men unsuited for militia service (e.g., due to disability), and even to children. A judge construing the Amendment could limit the purview of the Amendment to full political actors, for example those with voting rights; thus a reference to the people in a constitutional provision might be taken to exclude children and (at the time of enactment) women.75 But what about women today, orever old or physically unfit men? I believe the answer is this: If not for its absolute clause, the Amendment would guarantee the right of adult
According to Akhil Reed Amar, women were not included within the relevant denotation of the people in the Amendment: [W]omen in 1787 had the rights of persons (such as freedom to worship and protections of privacy in their homes) but did not directly participate in the acts of the peoplethey did not vote in constitutional conventions nor for Congress, nor were they part of the militia/people at the heart of the Second Amendment. Akhil Reed Amar, The Second Amendment: a Case Study in Constitutional Interpretation, 2001 UTAH L. REV. 889, 893 (2001).
75
Unfaithful to Textualism citizens to own militia-relevant weapons because of the necessity of a militia. A woman, a disabled man, or a man over 45, could, under the Amendment, own a gun because of that necessity. The Amendment would not require that a weapon be used only by its owner and only in militia service, or even be intended solely for that purpose or for that person's use. For example, it might be used, or designated for use, or
46
merely theoretically available for use, for militia service, by a neighbor. If a woman owned it, her husband might so use it. If a 12year-old owned it, his father, older brother, or uncle might so use it. Thus, the alternative views expressed by Lund and Volokh do not stand. Lunds reading the conditioning absolute out of the Amendment fails on the basis of Gricean Relevance (under Marbury, a principle of Constitutional interpretation as well) and because of the infelicity of a speech act dependent upon a condition recognized as false. Volokhs view that the Amendments absolute is mere public relations, as it were, is shown wrong by the same argument. Possible congressional action or inaction pertinent to the militia cannot read the conditioning absolute out of the Amendment. And the hypothetical inclusion of more people in the denotation of the people than is militia-relevant does not matter either: All the citizenry may own weapons provided that the militia is necessary, so there is no overinclusiveness.
Unfaithful to Textualism III. HELLER In 1975 the District of Columbia City Council enacted an
47
ordinance prohibiting DC residents from possessing handguns and certain other firearms, barring the ownership of unregistered firearms, and requiring firearms kept in homes to be unloaded, disassembled, or bound by trigger locks or similar devices.76 In February 2003, six DC residents, including Dick Heller, whose name appeared on the case that was appealed to the Supreme Court (as the only one with standing), sued in federal court, challenging the constitutionality of the DC ordinance. The District Court for the District of Columbia dismissed the lawsuit, following the then-standard interpretation of the last Supreme Court Case addressing the meaning of the Amendment, United States v. Miller77: This Court would be in error to overlook sixty-five years of unchanged Supreme Court precedent and the deluge of circuit case law rejecting an individual right to bear arms not in conjunction with service in the Militia.78 On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed, holding, [T]he Second Amendment protects an individual right to keep and bear arms. That right existed prior to the
The apparent contradiction between the ban on possession and the implicature here that registered firearms could be owned disappears through an exception: Possession of guns was permitted to gun owners who had registered the weapons before the enactment of the ordinance. Gun owners did have to re-register their weapons within 60 days of the effective date of the ordinance, however. See Edward D. Jones, III, The District of Columbia's Firearms Control Regulations Act of 1975: The Toughest Handgun Control Law in the United StatesOr Is It?, 455 ANNALS 138, 139 (1981).
77 78 76
307 U.S. 174 (1939). Parker v. District of Columbia, 311 F. Supp. 2d 103, 109110 (D.D.C. 2004).
Unfaithful to Textualism formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendments civic purpose, however, the activities it protects are not limited to militia service, nor is an individuals enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.79
48
The District and its mayor appealed to the Supreme Court, which granted certiorari in November 2007.80 The case received significant public attention and was heavily litigated. There were sixty-seven amicus briefs, including one from linguists.81 The decision in Heller was five to four, along predictable lines. Justice Scalia was joined by Chief Justice Roberts and Justices Alito, Thomas, and Kennedy. There were two dissents: Justice Stevens and Justice Breyer, each joining the others opinion, along with Justices Ginsburg and Souter. The dissenters divided their labor with Justice Stevens focusing on the language of the Amendment and Justice Breyer on the social problem of gun violence.
79 80 81
Parker v. District of Columbia, 478 F.3d 370, 395 (D.C. Cir. 2007). District of Columbia v. Heller, 554 U.S. 570 (2008). One of whom is the present author. See supra note 3.
Unfaithful to Textualism The decision changed the legal meaning of the Amendment dramatically. The case held that there was (i.e., now is) an individual constitutional right, unrelated to militia service, to possess and carry
49
firearms. This result had the effect of overturning Miller, whose holding both presupposed and asserted that the Amendment protected firearm ownership only for the purpose of militia membership.82 Justice Scalia argued that under a proper understanding of Miller, the Heller decision was consistent. Regardless of whether Justice Scalias argument was correct, the effect of Heller was to change what had been regarded as settled law83that the Amendment did not protect an individual right to
From the opinion: In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than eighteen inches in length at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. . . . The Constitution as originally adopted granted to the Congress powerTo provide for . . . the Militia . . . . With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view. Miller, 307 U.S. at 178. Not only was Second Amendment law regarded as settled, it was also a matter of low priority in constitutional law scholarship, although that had changed somewhat in the preceding couple of decades. Laurence Tribes 1988 treatise gives it one footnote. See LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW (2d ed. 1988). Gerald Gunthers 1991 casebook has not one word about it. See GERALD GUNTHER, CONSTITUTIONAL LAW (1991). But Tribes later edition gives it ten pages, still few in contrast with the attention given to the First, Fourth, and Fifth Amendments. See LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW (3d ed. 2000). The growth from essentially zero interest to some interest from the late twentieth century to the early twenty-first century resulted from an outpouring of academic publications arguing for taking the Amendment to guarantee a broad unconstrained constitutional right to individual gun ownership. See, e.g., Randy E. Barnett and Don B. Kates, Under Fire: The New Consensus on the Second Amendment, 45 EMORY L.J. 1139 (1996); Anthony J. Dennis, Clearing the Smoke from the Right to Keep and Bear Arms and the Second Amendment, 29 AKRON L. REV. 57 (1995); Stephen P. Halbrook, THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT (The Independent Institute 1984); Stephen P. Halbrook, What the Framers Intended: A Linguistic Analysis of the Right to Bear Arms, 49 LAW & CONTEMP. PROBS. 151 (1986); STEPHEN P. HALBROOK, A RIGHT TO BEAR ARMS: STATE AND
83
82
50
firearm ownership, unrelated to militia membership. Now, after Heller, it does.84 IV. SCALIAS MAJORITY OPINION IN HELLER A. Introduction The organization of Scalias opinion is interesting. The brief introduction actually contains the most significant linguistic argument, namely that the absolute has no more than a disambiguating function with respect to the main clause. This argument will be examined below. The opinion then examines the main clause by semantically analyzing the expressions right of the people and keep and bear arms, concluding that the clause containing them protects an individual right to possess arms for self-defense. Scalias analysis of these expressions, to be discussed below, while not flawless, is linguistically insightful. Scalia next adduces historical evidence about the background of the Amendment in English
FEDERAL BILLS OF RIGHTS AND CONSTITUTIONAL GUARANTEES (1989); Stephen P. Halbrook, The Right of the People or the Right of the State, 26 VAL. U. L. REV. 131 (1991); Stephen P. Halbrook, Congress Interprets the Second Amendment: Declarations by a Co-Equal Branch on the Individual Right to Keep and Bear Arms, 62 TENN. L. REV. 597 (1995); Don B. Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204 (1983); Don B. Kates, The Second Amendment and the Ideology of Self-Protection, 9 CONST. COMMENTARY 87 (1992); David B. Kopel, It Isnt About Duck Hunting: the British Origins of the Right to Arms, 93 MICH. L. REV. 1333 (1995); Nelson Lund, The Second Amendment, Political Liberty,and the Right to Self-Preservation, 39 ALA. L. REV. 103 (1987); JANET MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT (1994); L.A. Powe, Jr., Guns, Words, and Constitutional Interpretation, 38 WM & MARY L. REV. 1311 (1997); Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 TENN.L. REV. 461 (1995); David E. Vandercoy, The History of the Second Amendment, 28 VAL. U. L. REV. 1007 (1994); Volokh, supra note 69. In June 2010, in McDonald v. Chicago, 130 S. Ct. 3020 (2010), the Supreme Court held that the Heller decision applied not just to federal jurisdictions like the District of Columbia, but to states and municipalities.
84
Unfaithful to Textualism history. Next, the opinion semantically analyzes the phrases wellregulated militia and security of a free state. These analyses will be
51
discussed below. Scalia concludes his examination of the language of the Amendment by revisiting the connection between the absolute and the main clause (first addressed in his introduction): While the absolute announces the purpose of the main clause, it does not limit the main clauses protection to arms possession for the purpose of the militia. This argument will be examined below. Because, Scalia argues, the absolute has no limiting effect on the (unambiguous) main clause, the language of the Amendment makes possible the holding of the case: The Amendment protects an individual right to keep and bear arms, with no necessary militia connection. The opinion next turns to contemporaneous state constitutional provisions, some of which included protections of the right of the people to bear arms in defence of themselves and the state, to argue that the contrary understanding of the Amendment would make it an outlier. Then Scalia responds to Justice Stevens argument in dissent about the drafting history of the Amendment. In keeping with his textualism, he rejects drafting history as an aid to interpretation.85 Next,
It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process. Heller, 554 U.S. at 590. However, not content to dismiss Stevens argument simply on grounds of principle, he goes on to argue against Stevens claim that Madisons original draft of the Amendment, which included the words but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person, was evidence for a military interpretation of the right protected by the Amendment. Id. at 660 (Stevens, J., dissenting). Scalia argues that because Quakers opposed the use of arms for any violent purpose, not just military ones, and a Pennsylvania statute from 1757 exempted from military service those scrupling the use of arms, the earlier drafts words bearing arms was not solely military in
85
52
Scalia discusses the post-ratification history of the Amendment, including commentary, state legislation, and case law, arguing that his conclusion about the Amendment fits with precedent, in particular with United States v. Miller. The opinion next limits the application of the holding: For example, possession by felons or mentally ill persons can be forbidden and there can be restrictions on where weapons can be carried, for example near schools. Finally the opinion applies the holding to the DC statute at issue. I will now comment on all of the linguistic arguments put forward by Justice Scalia. It will be evident that interpretive problems are created not by textualism but by originalism. It will be clear too that while some of his arguments do not stand up, Scalia largely follows his textualist program and demonstrates impressive linguistic insight, often supplying the same sorts of evidence for an interpretation that a linguist might.86
meaning. Id. at 590 (majority opinion). In reply, Stevens adduces proposals sent to the convention by Virginia and North Carolina [t]hat any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead, arguing that the use of bear arms in those provisions was exclusively military and observing that the State simply does not compel its citizens to carry arms for the purpose of private confrontation . . . or for self-defense. Id. at 661 (Stevens, J., dissenting). Observe that this dispute is about the (linguistic) meaning of certain words in context (bear arms). It fits within the textualist program to seek evidence, if necessary from outside the text, not about legislative intent or purpose, but about the (linguistic) meaning of words: I will consult the writings of . . . delegates to the Constitutional convention . . . [but] not because they were Framers and therefore their intent is authoritative . . . but . . . because their writings . . . display how the text of the Constitution was originally understood. ANTONIN SCALIA, A MATTER OF INTERPRETATION 38 (1997). I admit my prejudice: Linguists tend to argue well about linguistic interpretation. I admit also that we do not always get things right, one painful example being the argument in the linguists brief about the idiomaticity of bear arms in the Amendment, effectively criticized by Scalia. See infra Part IV(I).
86
Unfaithful to Textualism B. The Meaning of Well-Regulated
53
According to Scalia, well-regulated implies nothing more than the imposition of proper discipline and training.87 As we saw, the late eighteenth century militia was commonly regarded as undisciplined. But if todays militia is dormant, unorganized, and consisting simply of all able-bodied men of military age (see immediately below), that dormant militia is not regulated at all today (let alone well-regulated). The proposition that there exists a well-regulated militia necessary to the security of the United States today is even more obviously false than the proposition that a militia (whether or not un- or poorly regulated) exists serving such a necessity. C. The Meaning of Militia According to Scalia, the militia is all able-bodied men. His evidence is that the Constitution (Art. I, 8) gives Congress the power to raise armies and provide navies, that is, create them, but to organize the militia. Scalia writes: not to organize a militia, which is what one would expect if the militia were to be a federal creation, but to organize the militia, connoting a body already in existence.88 This linguistically astute argument points to the (presuppositional) definite Noun Phrase and a difference in the semantics of the verbs raise, provide, and organize. But it runs into an obvious interpretive problem: the nonexistence of the
87 88
Heller, 554 U.S. at 597. Id. at 596.
Unfaithful to Textualism militia. Can the factually nonexistent militia be presupposed into
54
dormant existence? While presuppositions of truth value uncertain to the addressee are routinely accommodated if they are noncontroversial, an accommodation of this false presupposition seems unlikely.89 D. The Significance of Necessary Scalia writes that the militia was thought necessary because it is useful in repelling invasions and suppressing insurrections, because it renders large standing armies unnecessary, and because if the ablebodied men of a nation are trained in arms and organized, they are better able to resist tyranny.90 Notice the tenses used. The militia was (past tense) believed necessary for the listed reasons. The reasons are listed in the present tense. This tense shift is misleading. Arguably, at the time of the nations founding, the militia was important for the reasons listed. But todays militiathe fictitious or at best dormant one comprising all able-bodied menhas none of the listed functions. Perhaps if today all militarily fit males were weapons-trained and organized into a genuine militia, that militia would be marginally useful for repelling invasions and suppressing insurrections (though resisting tyranny against overwhelming state military and police power might be another story). But only marginally: Our present-day regular professional armed forces and police
89
I have not investigated the issue of the possibility of accommodating the false presupposition of the existence of the militia. Anecdotally, I have heard it said about the Amendment, What militia? suggesting for these speakers, at least, no accommodation.
90
Heller, 554 U.S. at 59798.
Unfaithful to Textualism are much better suited for those purposes. And such a militia would not
55
make a large standing army unnecessary, because of the way our presentday armed forces operate, that is, globally, and with technologically sophisticated weapons. Scalia recognizes some of these facts, as we saw earlier. But he does not recognize how serious the interpretive problem is. Scalias originalismfocus on the meaning current at the time of adoption and the world context at that timeraises a problem that is central to an argument made by Tara Smith against Public Understanding Originalism. Smith writes: The Public Understanding school, unfortunately, chains us to the closed conceptions of words meanings that have been held by particular individuals. It attempts to reduce what is fundamentally a conceptual question (about the meaning of words) into a historical one (what did earlier people believe?) . . . . [D]iscerning the original meaning is significant insofar as we need to identify and respect the concepts that were expressed in the written law. Fidelity to that, however, hardly provides a method for judges to follow in applying the law. It will not be adequate guidance to remind judges who must decide contemporary controversies: avoid anachronistic readings of words. The conceptual character of language and the correlative need for judges to engage in rational thought about its meaning cannot be evaded. In truth, all Originalists chase a misguided solution. For the salient choice that a judge confronts when interpreting the law is not a question of time: then or now? Their meaning, in the past, or ours today? The choice is between objective and non-objective understandings of concepts.91 Scalias originalist, rather than merely textualist, take on the militias necessity leads to a mistake in interpretation.
Tara Smith, Originalisms Misplaced Fidelity: Original Meaning is not Objective, 26 CONST. COMMENTARY 1, 5657 (2009).
91
Unfaithful to Textualism E. The Meaning of State The appellate dissent below had argued that state denoted component states of the United States. Scalia properly dismisses this argument by pointing out that state has different senses, one of which is polity, and by quoting Joseph Storys 1833 rough paraphrase of the Amendment (The militia is the natural defence of a free country).92 Scalia also notes that in addition to its use in the Amendment, when the Constitution uses state to denote the various states, it uses the word with modifiers, e.g., each state, several states, that state, etc., and similarly uses foreign state for a foreign country.93 F. The Meaning of the Right of the People
56
According to Justice Scalia, the people denotes individuals, not a collective mass. His evidence is that elsewhere in the Constitution, the people used in connection with rights denotes individuals, for example in the Fourth Amendment, which guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.94 It is not a good linguistic argument to claim that, because of occurrences like this, the people in the Second Amendment must similarly denote individuals (and Scalia does not claim this), but such occurrences are indeed evidence for that conclusion. Justice Stevens, no
JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1890 (1833).
93 94 92
Heller, 554 U.S. at 597. Id. at 57980.
57
textualist, does markedly worse in analyzing the people. With respect to the First Amendment, he writes: [I]t is only the right peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of the people. These rights contemplate collective action. While the right peaceably to assemble protects . . . individual rights . . . , its concern is with action engaged in by members of a group. . . . Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert.95 In a footnote, Scalia correctly criticizes Stevens argument: Justice Stevens is of course correct . . . that the right to assemble cannot be exercised alone, but it is still an individual right, and not one conditioned upon membership in some defined assembly . . . . And Justice Stevens is dead wrong to think that the right to petition is primarily collective in nature.96 Scalia goes on to argue that because the right protected is an individual one and because the militia in the 18th century comprised only a portion of the people, Reading the Second Amendment as protecting only the right to keep and bear Arms in an organized militia therefore fits poorly with the operative clauses description of the holder of that right as the people.97 This argument echoes Volokhs about overinclusiveness, criticized above. As was argued above, if it were not for the now-recognized falsity of the absolute, the Amendment could be read straightforwardly as protecting an individual right, held by all, to
95 96 97
Id. at 645 (Stevens, J., dissenting). Id. at 579. Id. at 58081.
Unfaithful to Textualism possess firearms for militia purposes, even though only a subset of the
58
population, namely military-age and military-suitable men, would actually use them in militia service. But even without the overinclusiveness argument, Scalias argument for an individual rather than a mass interpretation of the right of the people is persuasive. G. The Meaning (or Denotation) of Arms According to Scalia, arms means weapons of offence, or armour of defence, the definition provided in Samuel Johnsons (1773) dictionary,98 without being limited to military weapons. His evidence for this non-limitation is an example from another 18th century dictionary, Timothy Cunninghams A New and Complete Law Dictionary: Servants and labourers shall use bows and arrows on Sundays, etc., and not bear other arms.99 Scalia also argues that the arms whose possession the Amendment protects are not limited to those in use in the 18th century: Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications . . . and the Fourth Amendment applies to modern forms of search . . . the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.100
98 99
Heller, 554 U.S. at 580. Id. at 581. Id. at 582.
100
Unfaithful to Textualism This point is linguistically astute: Even if what is obviously
59
included in the denotation has changed, the sense has not. So, does arms in the Amendment denote bearable weapons of any sort, including machine guns, grenades, and shoulder-launched rockets? No, says Scalia. In his discussion of Miller, Scalia focuses on the Miller courts ruling that the weapon in question (a sawed-off shotgun) had no reasonable relationship to the preservation or efficiency of a well regulated militia.101 Scalias reading of Miller is that it had to do only with the type of weapon at issue in the case.102 So, what types of weapons are permitted under Miller (and, since Scalia views his interpretation of the Amendment as consistent with Miller, under the Amendment)? Millers phrase, part of ordinary military equipment,103 appears to denote any weapons ordinarily used in war. As noted above, this would include weaponry such as the aforementioned machine guns, grenades, and rockets. But, says Scalia, we have to read ordinary military equipment along with what follows: when called for [militia] service men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.104 Scalia then cites the 1980 Oregon case, State v. Kessler: In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and
101 102 103 104
Id. at 622 (quoting Miller, 307 U.S. at 178). Heller, 554 U.S. at 622. Miller, 307 U.S. at 178. Id. at 179.
Unfaithful to Textualism the same.105 Scalia infers that the Amendment, under Miller, does not
60
protect those weapons not typically possessed by law-abiding citizens for lawful purposes . . . .106 Such an inference, of course, is construction, though probably within the limited bounds of variation from the text that a textualist judge must sometimes permit. But this analysis contradicts the position Scalia takes in the passage quoted above, supra note 100. If the First Amendments speech denotes all modern forms of communication and the Fourth Amendments search denotes modern forms of search, it would make sense that the Second Amendments arms denotes all modern weaponry which is militia-relevant. H. The Meaning of Keep Arms As he should, Scalia gives the conjoined verb phrase keep and bear arms close analysis. First, expanding the conjoined phrase, he addresses the meaning of keep arms. According to Scalia, the meaning of keep arms is simply retain, have in custody, arms; have weapons . . . .107 His evidence is again originalist: eighteenth century dictionaries and a few examples, all of which favor viewing the right to keep Arms as an individual right unconnected with militia service. William Blackstone, for example, wrote that Catholics convicted of not attending service in the Church of England . . . were not permitted to keep arms in their
289 Ore. 359, 368 (1980) (citing G. NEUMANN, SWORDS AND BLADES OF THE AMERICAN REVOLUTION 615, 25254 (1973)).
106 107 105
Heller, 554 U.S. at 625. Id. at 582.
61
houses.108 Scalia also cites a 1689 statute: [N]o Papist . . . shall or may have or keep in his House . . . any Arms . . . .109 And he goes on, in a typically acerbic comment (but one that shows his linguistic sensitivity), to criticize the argument that eighteenth century militia laws requiring militiamen to keep arms for military service were evidence that keep arms had a for the militia sense: This is rather like saying that, since there are many statutes that authorize aggrieved employees to file complaints with federal agencies, the phrase file complaints has an employment-related connotation.110 I. The Meaning of Bear Arms Scalias analysis of this expression is important. First, Scalia asserts that bear means carry, but in construction with arms, it refers to carrying for a particular purposeconfrontation . . . [but] in no way connotes participation in a structured military organization.111 His evidence (again, originalist) is contemporaneous state constitutional provisions, for example, Kentuckys: The right of the citizens to bear arms in defence of themselves and the State shall not be questioned.112 However, its simpler to blame any confrontation meaning on extra words, for example in the Kentucky provision, the words in defence of
108 109 110 111 112
Id. Id. Id. at 583. Id. at 584. Id. at 585.
Unfaithful to Textualism themselves. It is not clear why Scalia makes this for confrontation
62
claim, since he later writes, If bear arms means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (for the purpose of self-defense or to make war against the King).113 Second, Scalia addresses the argument that bear arms in the Amendment is an idiom meaning serve as a soldier, do military service, fight,114 an argument frequently made by gun control advocates (and made in the linguists brief). If bear arms were thusly idiomatic, the Amendment would protect only a military (perhaps collective) right, rather than private rights such as hunting or self-defense. According to Scalia, this expression is not idiomatic in the Amendment. First, constitutional protection of an individuals right to do military service is absurd.115 Second, the idiom reading is found only when the expression is followed by a prepositional phrase headed by against, as in paragraph twenty-eight of the Declaration of Independence: [King George] has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country . . . .116 It is easy to find later examples that contradict this interesting linguistic claim, for example from President Kennedys inaugural address (Now the trumpet summons us againnot as a call to bear arms, though arms we need . . . .). Footnote 9 in Justice Stevens
113 114 115
Id. at 589. Id. at 586.
Id. It may not be absurd, however, considering the controversy over openly gay military personnel.
116
Id. at 586.
Unfaithful to Textualism dissent lists six naturally occurring examples of bear arms used with the
63
military sense but without against from the period 17751819, including this one from 1778: Congress were yesterday informed . . . that those Canadians who returned from Saratoga . . . had been compelled by Sir Guy Carleton to bear Arms.117 So Scalia is wrong in claiming that bear arms is idiomatic only when in construction with against. Scalias next argument counters Saul Cornells finding,118 reported in the linguists brief, that the overwhelming majority (110 out of 115) of occurrences of bear arms from the founding period were military. If bear arms means simply carry weapons, adding a qualifying phrase like for the purpose of killing game is acceptable. But if it means carry weapons for military purposes, Scalia writes, one cannot simply add for the purpose of killing game. The right to carry arms in the militia for the purpose of killing game is worthy of the mad hatter.119 Fair enough. However, there can be no doubt that bear arms was, during the founding period (just as today), idiomatically military under its preferred reading. The problem with an idiomatic interpretation of bear arms in the Amendment arises from the conjoined expression keep and bear arms. Scalia writes:
Id. at 648 (Stevens, J., dissenting) (quoting Letter of Henry Laurens to the Mass. Council (Jan. 21, 1778), in LETTERS OF DELEGATES TO CONGRESS 17741789, 622 (P. Smith, ed., 1981)). Saul Cornell, The Original Meaning of Original Understanding: A NeoBlackstone Critique, 67 MD. L. REV. 150, 164 (2007).
119 118
117
Unfaithful to Textualism Giving bear Arms its idiomatic meaning would . . . [make] the phrase keep and bear Arms . . . incoherent. The word Arms would have two different meanings at once: weapons (as the object of keep) and (as the object of bear) one-half of an idiom. It would be rather like saying He filled and kicked the bucket to mean He filled the bucket and died. Grotesque.120 What Scalia has observed is the fact noted by linguists121 that an
64
ambiguous expression cannot be used in two different senses at the same time. For example, Joe put his money in a bank and so did Moe cannot mean that Joe deposited his money in a financial institution and Moe put his in the earth beside a river. The unacceptability of #Mary and her drivers license expired last week results from the fact that expires sense die is selected by its subject Mary but its sense become void because a term has ended is selected by its subject her drivers license. As Scalia would say, grotesque. Idioms can be strong, that is, non-compositional and semantically impenetrable, like kick the bucket, have an axe to grind, and cut the mustard, or weak, that is, with some degree of compositionality, like a drop in the bucket, slap on the wrist, cry over spilt milk, and hit the books. The compositionality can be seen in the fact that, for example, in order to hit the books (idiomatically), one normally has to do something with actual books. The same goes for bear arms: In order to bear arms
120 121
Id. at 587.
See, e.g., D.A. CRUSE, LEXICAL SEMANTICS (1986); Arnold Zwicky & Jerry Sadock, Ambiguity Tests and How to Fail Them, in SYNTAX AND SEMANTICS 1 (John Kimball ed., 1975).
Unfaithful to Textualism idiomatically, i.e., serve as a soldier, normally one has to bear them literally, i.e., carry them. Even weak idioms cant be used idiomatically and literally at the same time: 18. #The student located and hit the books.
65
A similar bad result emerges with bear arms: 19. a. #The conscript was forced to bear arms against the invaders and then clean them. #He bore arms when he served in the cavalry, as his daughter did when she moved his old guns to the barn.
b.
On the basis of this purely linguistic argument, Scalia is right: Bear arms in the Amendment does not have an idiomatic meaning serve as a soldier, fight . . . .122 J. The Relation Between the Absolute and the Main Clause Now we get to the most important argument Scalia makes about the interpretation of the Amendment. He writes, Logic demands that there be a link between the stated purpose and the command.123 This is a semantic assertion, and while it is not put the way a linguist would put it,124 the insight is right. Scalia goes on to do what a linguist might: provide a constructed example to support his assertion: The Second Amendment would be nonsensical if it read, A well regulated Militia,
Could the Amendment simply have been poorly drafted, with the intent that bear arms have the military interpretation? Perhaps, but resorting to imagined authorial intent is far from what is permitted within textualism.
123 124 122
Heller, 554 U.S. at 577. It is not logic making the demand, it is discourse coherence or Gricean relevance.
Unfaithful to Textualism being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.125 Next he writes, That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence. The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.).126 Again, he uses a made-up example, as a linguist might. But then he
66
writes, But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.127 This looks like a semantic claim, especially following, as it does, what is quoted above. As a semantic claim, it would be surprising, andassuming the correctness of the account I have provided above of the interpretation of the Amendmentwrong. What evidence does Scalia supply for it? Nineteenth century treatises about statutory interpretation. Scalia writes: See F. Dwarris, A GENERAL TREATISE ON STATUTES 268 269 (P. Potter ed. 1871) (hereinafter Dwarris); T. Sedgwick, THE INTERPRETATION AND CONSTRUCTION OF STATUTORY AND CONSTITUTIONAL LAW 4245 (2d ed. 1874). It is nothing unusual in acts . . . for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law. J. Bishop, COMMENTARIES ON WRITTEN LAWS AND THEIR INTERPRETATION 51, 49
125 126 127
Heller, 554 U.S. at 577. Id. at 57778. Id. at 578.
Unfaithful to Textualism (1882) (quoting Rex v. Marks, 3 East 157, 165 (K. B. 1802)).128
67
The evidence is not constructed examples, naturally occurring data, or, in fact, anything linguistic, but nineteenth century treatises about statutory meaning. Both Saul Cornell and David Thomas Konig point out that the dates of the nineteenth century treatises undercut Scalias originalism.129 So the very strong and very important claim about the allegedly very weak connection between the Amendments absolute clause and its main clause is supported not with linguistic evidence, but with an argument from authority, and not a linguistic authority, but authorities from (anachronistic) legal scholarship. Has Scalia suddenly left interpretation and shifted to construction without telling us? If so, no linguistic counterargument is possible, since Holy Trinity shows (and the Hart & Sacks legal process program130 argues) that courts, in determining the legal meaning of statutes, are not strictly bound by their linguistic meaning. But, as Scalia himself tells us, textualists are not supposed to do this sort of thing. Is the idea that the language of constitutions and statutes is different, in relevant ways, from English generally, governed by different syntactic-semantic rules? If so, one can ask for evidence that the
128 129
Id.
Saul Cornell, Originalism on Trial: The Use and Abuse of History in District of Columbia v. Heller, 69 OHIO ST. L.J. 625, 632 (2008); David Thomas Konig, Why the Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America, 56 UCLA L. REV. 1295, 1331 (2009). HENRY HART, JR. & ALBERT SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATIONS OF LAW (William Eskridge, Jr. & Philip Frickey eds., 1994).
130
68
language of statutes is exempt from one or more of the syntactic-semantic rules that govern English as a whole, and one would want more than simply an argument from legal authority. It is well known that legal language uses special lexical items and does have some unique syntactic patterns,131 but there is no evidence I know ofor can imaginefor the absence in legal language of the operation of the several factors that conspire to bring about the conditioning of a main clause by a conditioning absolute: the presence of being, the presence of an individual predicate, the assumed presence in the common ground nature of the presupposition expressed in the absolute, and the way common ground presuppositions can condition speech acts. A look at Scalias nineteenth century authorities reveals that they are not even particularly helpful to his argument, since they all contain statements that could be cited in support of the opposite view. Dwarris writes, [W]hether the words [of the enacting clause] shall be restrained [by a preamble] or not, must depend on a fair exposition of the particular statute in each particular case, and not upon any universal rule of construction.132 Both Sedgwick and Bishop quote the Latin Cessante legis prooemio, cessat et ipsa lex133 (literally, The preamble of a law
See generally, e.g., DAVID MELLINKOFF, THE LANGUAGE OF THE LAW (1963); PETER TIERSMA, LEGAL LANGUAGE (1999). FORTUNATUS DWARRIS, A GENERAL TREATISE ON STATUTES 268 (P. Potter ed., 1871). To make the same point, Stevens provides a different Dwarris quote. See Heller, 554 U.S. at 643 n.7 (Stevens, J., dissenting). THEODORE SEDGWICK, A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND CONSTRUCTION OF STATUTORY AND CONSTITUTIONAL LAW 42 (2d
133 132
131
Unfaithful to Textualism ceasing (i.e., no longer existing), the law itself also ceases).134 This
69
generalization is not cited with full approval, but the fact that it is cited in two different nineteenth century treatises suggests that it was something of a truism. Sedgwick also writes, [T]he preamble may be used to ascertain and fix the subject matter to which the enacting part is to be applied. So the purview or body of the act may even be restrained by the preamble, when no inconsistency or contradiction results.135 The impression a reader gets from the preamble sections of these treatises is ambivalence, with something of a leaning toward a limited role for preambles, but Scalia greatly overstates matters by relying on these treatises alone as support for his assertion that preambles have only a very limited role. Scalia offers no other support. Thus he provides extraordinarily weak support for his conclusion about what is an absolutely crucial issue, namely, the relation between the absolute clause and the main clause. There is a small remaining problem. What none of the nineteenth century commentatorsor, for that matter, Scaliaaddress is what makes something a preamble.136 Perhaps preambles are introductions to
ed. 1874); JOEL BISHOP, COMMENTARIES ON WRITTEN LAWS AND THEIR INTERPRETATION 49 (1882). In making a different point, Scalia, supra note 5, quotes Cessante ratione cessat lex (literally, When the reason for a law ceases, the law itself ceases.). Thanks to N. Genovese for translations of these examples.
135 136 134
SEDGWICK, supra note 133, at 43.
Terminology varies a bit. Justice Stevens, in his dissent, calls the absolute clause a preamble. In his majority opinion, Scalia calls it a prefatory statement, a prefatory clause, introductory language, a preamble, and a prologue.
Unfaithful to Textualism statutes without being operative. But that is circular, if we are trying to
70
find out whether some words in a statute or constitutional provision, like the Amendments absolute clause, are a preamble. Whether some stretch of language is operative when written as part of a statute is a legal and perhaps linguistic question. It is possible to answer the legal question first, making the linguistic question moot. That is what Scalia does, but, as we have seen, his basis for doing so is weak, not to mention supposedly out of bounds for a textualist. The linguistic question is: Taking a statute or the Amendment as a speech act, is the alleged preamble part of that speech act? The linguistic evidence offered above indicates that, in the case of the Amendment, it is. Later in his opinion, Scalia takes up the relation between the prefatory clause and the operative clause again, writing, It is therefore entirely sensible that the Second Amendments prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens militia by taking away their arms was the reason that right . . . was codified in a written Constitution. [The] assertion that individual self-defense is merely a subsidiary interest of the right to keep and bear arms . . . is profoundly mistaken. [It is based] solely upon the prologuebut that can only show that self-defense had little to do with the rights codification; it was the central component of the right itself.137
137
71
But it does not matter if eighteenth century Americans cared about hunting and self-defense more than securing the militia; why Americans valued the ancient right138 has no relevance for the interpretation of the Amendment. And distinguishing announc[ing] the purpose for which the right was codified139 from what the Amendment says and does is not valid as an interpretation of the language of the Amendment, because it disregards the semantics of the Amendment.140 We have seen that the absolute provides the basis for the guarantee of the main clause. There are no linguistic grounds for, in effect, reading it out of the Amendment. To grant that the absolute announces the purpose of enabling the militia but conclude that the Amendment protects an individual right to weapon ownership unconnected to the militia is contradictory. It is correct that the Amendment does not require weapons to be used only for militia service, or even possessed specifically by militia members. But it does require the presence in the common ground of the presupposition of the existence of the militia, and, more importantly, it requires the presence in the common ground of the presupposition that a militia is required for a free states security. As a textualist, Scalia should have recognized this and judged accordingly.
138 139 140
Id. Id.
Paul Finkelman points out, [I]f we accept Justice Scalias interpretation of the clause, we have to assume that the First Congress put the well regulated militia provision in the Amendment for no good purpose at all. The clause is absolutely unnecessary for Justice Scalias individual rights analysis. Paul Finkelman, It Really Was About a Well Regulated Militia, 59 SYRACUSE L. REV. 267, 268 (2008).
Unfaithful to Textualism In addition, the following rather obvious objection can be raised.
72
It should be a telling one against a textualist. Distinguishing the reason for enacting the Amendment from what the Amendment does, as a step in interpreting it, is a category error. The mistaken St. Patricks Day celebrant who offers to buy everybody a round because he believes it is St. Patricks Day is, let us say, really interested in impressing a certain person with his generosity. Thats the reason he makes his offer. But his speech act is conditioned on its actually being St. Patricks Day. The reason Dad prohibits little Fred from seeing the pornographic movie is, lets say, that he wants to create a record with his wife of disapproving of pornography (which, perhaps, he secretly enjoys), but his speech act conditions his prohibition on the movies actually being pornographic. In precisely the same way, there may have been a variety of reasons why the framers enacted the Second Amendment, including political considerations, a desire to justify to the public what the Amendment did (as Volokh believes), and, perhaps, the desire to protect private gun ownership for self-defense and other individual purposes. But the Amendments protection of the right to possess weapons is conditioned on the dependence of a free state for its security on the existence of a wellregulated militia. It does not matter whether self-defense was, or is, the central component of the right to keep and bear arms, because what the Amendment, by its words, does isonlyprotect that right for the sake of the militia because the militia is required for the security of a free state.
Unfaithful to Textualism And if the proposition that a militia is necessary to the security of a free state is recognized as false, the Amendment, by its words, should be understood as protecting nothing, just as the bar patrons mistaken St. Patricks Day offer probably becomes unenforceable and Dads barring little Fred from seeing the (innocent, it turns out) movie ought to disappear. K. An Evaluation Scalia, writing as a textualist, supplies insightful linguistic arguments to establish several points about the interpretation of the Amendment, most importantly that the interpretation of bear arms is not idiomatic. But in the key step in his argument, his analysis of the connection between the absolute and the main clause, he goes badly astray, asserting but not supporting with any linguistic evidence a very limited effect of a preamble on its main clause (namely, only to
73
disambiguate) and offering an argument (and a weak one at that) about the legal effect of preambles rather than about their semantics. Since the main clause is not ambiguous, the absolute, in his view, is superfluous to what the Amendment does: It protects the right to keep and bear arms, period. While he reasons as a textualist most of the time, at that key point Scalia abandons textualism, smuggling construction that is not based on interpretation into what is otherwise putatively interpretation. Following his own textualist program would have required him to find the Amendments protection of gun ownership void, or at least calling for
74
action to void it, for the reason detailed above: a recognized-as-false stated condition on the speech act. As a textualist, Scalia was unable to follow the Holy Trinity path of explicitly recognizing the interpretation of the Amendment and then proceeding to construe it contrary to the interpretation. The possibility cannot be ignored that he reverseengineered his opinion, finding arguments to support the public policy conclusion he wantedtextualist arguments where possible, but concealed result-oriented construction where necessary. CONCLUSION What would a faithfully textualist Court have done in Heller? By taking the language of the Amendment seriously, it would have held that the Amendment, by its words, guaranteed the right of the people to keep and bear arms exactly to the extent that a secure free state depends for its security on a well-regulated militiathat is, not at all.141 Consequently, it would have held that the Amendment posed no bar against governmental regulation of weapons ownership. This paper has argued for an interpretation of the Second Amendment based on the fact that an absolute clause of the type in the Amendment conditions the speech act of its main clause. In addition, it has examined Justice Scalias opinion in Heller, weighing his considerable linguistic insight and his commitment to the textualist program.
141
Whether it would have explicitly or only implicitly taken judicial notice of the falsity of the absolute clause would have been a rhetorical decision.
75
Understanding Scalias failure to follow his own textualist program to its natural result supports the conclusion that linguistic analysis can be useful in ascertaining the meaning of a constitutional provision. Because linguistic analysis can elucidate constitutional meaning, the analysis provided here supports the textualist program itself.

Jeffrey Kaplan, Unfaithful To Textualism

Загружено:

Сведения о документе

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Jeffrey Kaplan, Unfaithful To Textualism

Загружено:

Авторское право:

Доступные форматы

Unfaithful to Textualism

Electronic copy available at: http://ssrn.com/abstract=2160589

554 U.S. 570 (2008).

Electronic copy available at: http://ssrn.com/abstract=2160589

LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 895 (3d ed. 2000).

ANTONIN SCALIA, A MATTER OF INTERPRETATION 1722 (1997).

143 U.S. 457, 459 (1892). SCALIA, supra note 5, at 20.

The senator a teetotaler, the party continued quietly.

My helicopter being old, I didnt want my prospective mother-in-law to see it.

But see Hurd, supra note 33, for a different view.

John Searle, A Classification of Illocutionary Acts, 5 LANGUAGE IN SOCIETY 1, 22 (1975).

Uviller & Merkel, supra note 32, at 158.

See Balkin, supra note 38, at 44445.

Little Fred: Dad: Little Fred: Dad:

Heller, 554 U.S. at 636.

540 U.S. 1046 (2003).

See examples (9) and (11), supra.

On File with the author.

Id. at 79697. Id. at 807.

Unfaithful to Textualism B. The Meaning of Well-Regulated

Heller, 554 U.S. at 597. Id. at 596.

Heller, 554 U.S. at 59798.

Heller, 554 U.S. at 597. Id. at 57980.

Id. at 645 (Stevens, J., dissenting). Id. at 579. Id. at 58081.

Heller, 554 U.S. at 580. Id. at 581. Id. at 582.

Unfaithful to Textualism This point is linguistically astute: Even if what is obviously

Heller, 554 U.S. at 625. Id. at 582.

Id. Id. Id. at 583. Id. at 584. Id. at 585.

Id. at 589. Id. at 586.

Heller, 554 U.S. at 589.

125 126 127

Heller, 554 U.S. at 577. Id. at 57778. Id. at 578.

SEDGWICK, supra note 133, at 43.

Heller, 554 U.S. at 599.

Вам также может понравиться