Constitutional Law

A few disappointments in Heller

I love the result, but the academic in me sees a few disappointments in the method.

MAJORITY: Scalia begins with a clear statement of his method: "In interpreting this text, we are guided by the principle that ?[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.?" This suggests original public meaning, with some textualism: the issue is not so much what did the Framers as individuals intend (nor even the First Congress), but rather what did Americans as a whole understand they were ratifying.

Yet he doesn't consider what is probably the strongest evidence of public understanding: Tench Coxe's newpaper articles discussing the Bill of Rights, which were printed in New York, Boston, and Philadelpha, and referred to the right to keep and bear "their private arms."

DISSENT: Justice Stevens vaguely implies his method. Original intent (i.e., the purposes of the Framers themselves): "Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature?s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution." Note references to "framers" and "proponents."

His conclusion is that "It [the 2A] was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States."

In order to reach this, the dissent has to ignore Argument I of the Academics' brief (pasted in extended remarks below). Basically, yes, there were Framers who worried about Congress disarming the militias by neglecting to arm them. But what they wanted was something entirely separate from the future 2A, and they lost. The Framers were articulate men. They did not try to say "States can arm militias if Congress fails to do so" by saying "the right of the people to keep and bear arms shall not be infringed." Instead, the concerned Framers came right out and said what they wanted: "each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same."

The reason you don't see that in the Bill of Rights is (1) Madison omitted it and (2) when the proponents pushed it as an addition in the First Senate, they lost it. I'd say that's decisive against the dissent's reading of the Amendment.

Full post as published by Of Arms and the Law on July 04, 2008 (boomark / email).