Think Again
by Stanley Fish
fish.blogs.nytimes.com
July 6, 2008, 6:28 pm
What Did the Framers Have in Mind?
Tags: intentionalism, second amendment, Supreme Court
Whatever side of the Second Amendment controversy you may be on, the clear winner in District of Columbia v. Heller (striking down a Washington, D.C., ban on hand guns) was intentionalism, the thesis that a text means what its author or authors intend.
The text in dispute is 27 words long, and it is cited in the opening pages of each of the three opinions: “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.” None of the words in this sentence is esoteric and the syntax is straightforward; but if textual simplicity were sufficient to determine meaning, there would be no reason for 157 pages of close legal and linguistic argument.
What are the justices arguing about? A lot – the meaning of words, the significance of documents contemporary to the framing of the amendment, debates at constitutional conventions, regulations adopted or not adopted by various states, the Court’s own precedents – but basically the argument is about what the framers had in mind. As Justice Antonin Scalia, writing for the majority, observes, “The two sides in the case have set out very different interpretations of the amendment.”
But the two sides do not proceed from different theories of interpretation. Both agree that the task is to read the amendment in the light of the purpose the framers would have had in writing it. They disagree about what that purpose was, and the materials they cite are meant to establish a purpose so firmly that in the light of it the words of the amendment will have one and only one obvious meaning.
For Scalia, that meaning is that Americans have “an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” For Justice John Paul Stevens, the Second Amendment “was adopted to protect the right of the people of each of the several states to maintain a well-regulated militia,” and he finds no “evidence supporting the view that the amendment was intended to limit the power of Congress to regulate the civilian uses of weapons.”
The evidence that might satisfy Stevens will not be found in the amendment itself, for as the opinions amply demonstrate, the 27 words can be made to bear either interpretation. Does the first clause of the amendment govern the second, propositional, clause and constrain its meaning (it is only in relation to the desire to maintain a healthy militia that the right to bear arms is asserted)? Or does the first clause only establish a general, pre-existent condition that does not direct the application of the second?
Scalia, who holds the latter view, declares that “ a prefatory clause does not limit or expand the scope of the operative clause.” But in fact it sometimes does and it sometimes doesn’t. A formal, grammatical analysis will no more settle the matter than will a lexical analysis. Only by putting a background intention firmly in place can one stabilize a text that (like all texts) varies with the purpose assigned to it. That is why each side hears the other’s interpretation as “grotesque” or “strained.” Reading within different assumptions of the framers’ intention, they see different texts and cannot understand how anyone could miss what is to each of them so differently clear. Scalia confidently concludes that nothing in the Court’s precedents “forecloses our adoption of the original understanding of the Second Amendment,” and he is sure he knows what that understanding was.
Stevens just as strongly believes that the evidence he marshals “sheds revelatory light on the purpose of the amendment” and that he too knows what that purpose (and therefore the amendment’s meaning ) was. And yet, while the two jurists come to different interpretive conclusions, they are playing the same interpretive game, the game of trying to figure out what the authors of the amendment intended by its words.
For a large part of his separate dissenting opinion, Justice Stephen G. Breyer seems to be playing another game. He is less concerned with intention and purpose than with the problems faced by crime-ridden urban areas. His question, at least at first, is not How can we be true to the framers’ intention? but How can we read the amendment in a way that furthers our efforts to deal with a serious social problem? He wants to focus on “the practicalities, the statute’s rationale, the problems that called it into being, its relationship to those objectives – in a word, the details.” He identifies as the statute’s “basic objective” the saving of lives and he cites statistics that establish, he believes, a strong correlation between the availability of hand guns and crime. Handguns, he observes, “are involved in a majority of firearms deaths and injuries in the United States.” And they are also, he declares, “a very popular weapon among criminals.” He puts particular weight on a report from a congressional committee that found handguns “to have a particularly strong link to undesirable activities in the District’s exclusively urban environment.”
If that were all there was to Breyer’s opinion, it would be vulnerable to Scalia’s retort that even if “gun violence is a serious problem,” no mere sociological finding authorizes or obligates the Court “to pronounce the Second Amendment extinct.” Where’s the link to what the Constitution says?
Breyer claims to find it in the phrase “exclusively urban environment,” which allows him to ground his support of the statute in what at least looks like an intentionalist argument. The reasoning is somewhat convoluted because it relies on a negative. The problem the statute is intended to redress, he says, is largely urban; but in thinking about the Second Amendment, the framers would have been “unlikely… to have thought of a right to keep loaded handguns in homes to confront intruders in urban settings,” if only because in the America they knew there were no urban settings. Therefore they couldn’t have had the intention to disallow a regulation of a kind they could not have contemplated.
Whether or not this argument is persuasive as an account of the framers’ intention (and it wasn’t persuasive to five of Breyer’s brethren), its intention is clear – to allow Breyer to present himself as an intentionalist.
In the end, what we have in District of Columbia v. Heller is a unanimous decision. The vote is 5-to-4 on the interpretation of the amendment’s intention, but it’s 9-to-0 on the specification of intention as the interpreter’s task.
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