the lost law

Here is something I wrote but didn’t publish (not being a law professor) several years ago on the disastrous Heller judgment re: the US 2nd Amendment. It’s fairly long and academic. But I still think it’s right.

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In its recent judgment striking down the District of Columbia’s handgun ban (DC v. Heller), the US Supreme Court found that the Second Amendment protects a legislatively inviolable  right of domestic gun ownership. This despite the Amendment’s failure to say so, transparently or self-evidently. It says (precisely, down to the commas):

“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.”

Justice John Paul Stevens, dissenting in Heller, notes that the Amendment subordinates the question of gun ownership to a question of militia regulation. He also notes that some contemporary and analogous state laws, and some rejected proposals for the wording of the Second Amendment itself, carefully and explicitly mention and protect private gun ownership for domestic and non-military purposes (such as hunting and self-defense). In other words, the extension of the “right to bear arms” beyond the area of militia organization precisely did not go without saying, in the founding period. Yet this very extension is exactly what the Second Amendment fails to provide.

To be sure, it does not follow from the Second Amendment’s ambiguity, or from the militia subordination, that the Amendment constitutionally invalidates domestic gun ownership. It does follow, however, that the Amendment does not constitutionally necessitate domestic gun ownership. As Justice Breyer argues in his own dissent, the Amendment simply does not rise to the standard of explicitness and unequivocality that is necessary to the extraordinary circumstances of judicial review – when judges, unelected, and (on most questions) empirically non-expert, strike down statutes that express the democratic will of the people, as codified by their elected representatives, after consideration and application of the available evidence.

Interestingly, the attitude that Breyer asserts – judicial circumspection, founded on a reflexive scepticism about his own insight, and a keenness to respect the constitutional separation of powers – is itself usually asserted by conservative judges like those who formed the majority in Heller. Yet in Heller, the Court’s originalist majority sees fit to strike down the DC handgun law: to find, that is, that the justices know a priori what are the limits of acceptable gun control, because of what the Second Amendment, allegedly, means.

And what, on the originalist reading, does it mean? Justice Antonin Scalia, writing for the majority, argues as follows. Scalia proposes that the Amendment’s two clauses – the “Militia” clause and the “bear Arms” clause – need to be read in reverse order. As Stevens comments, understatingly, “that is not how this Court ordinarily reads such texts.” It seems a very unusual way for anybody to read any text – especially a complex sentence, in which a dependent clause leads into, and in some sense determines, an independent one. However, Scalia justifies his move by asserting that the syntax of the Second Amendment allows, even dictates, its own reversal. The militia clause, he says, is “prefatory.” The bear arms clause is “operative.” “A prefatory clause,” he writes, “does not limit or expand the scope of the operative clause”; “the former does not limit the latter grammatically, but rather announces a purpose.” Scalia’s hermeneutic redistribution of the Amendment depends, evidently, on his grammatical talk of “prefatory” and “operative” – as opposed to,  say, “dependent” and “independent,” or even “first” and “second” – clauses. For this talk is what allows Scalia to assert that the “bear Arms” clause is the one that basically matters, being “operative”; while the “Militia” clause, being merely “prefatory,”  is only there to lead into the “bear Arms” clause.

No doubt there are complex sentences in which the dependent clause can accurately be called “prefatory” to the independent  one, rendering the latter solely “operative.” (E.g.: “As he walks up the street, shoot him”). Equally, however, there are certainly complex sentences in which the dependent clause semantically determines – limits or expands or redirects – the extension of the independent one. (E.g.: “If  he walks up the street, shoot him”). In the first case, one might be able to parse the second clause first. In the second case, one certainly could not.

It is far from clear that the Second Amendment is closer to the first kind of complex sentence than it is to the second. The question of whether it is, moreover, is nothing other than the question of whether or not the Second Amendment, prima facie, seems to enshrine a constitutional right to domestic gun ownership. For if the Amendment’s syntax really breaks down into “prefatory” and “operative” clauses, then (as we have seen) the “bear Arms” clause will seem to be the one that really matters, being “operative.” If, on the other hand, the bear arms clause is not the one that really matters, then the militia clause cannot hardly classified as merely “prefatory.”

The point here is that Scalia’s basic reading of the Amendment, and the pseudo-grammatical binary he invokes in order to ground that reading, are one. They are twin iterations of Scalia’s sense of the Second Amendment’s “original understanding” as having to do with the armed defense of “hearth and home.” One iteration appears as reading; the other as the rule that allows that reading. Scalia’s “original understanding” of the Amendment is a pre-interpretative intension that he “discovers” by a method that is projected by that very (alleged) discovery. This is a classically objectivist circularity.  The “original understanding” is projected before constitutional interpretation, and even before the constitutional text. It therefore allows Scalia to determine the latter, and dismiss the former.

Author: JD Fleming

I am Professor of English Literature at Simon Fraser University in Vancouver, BC. My work is in intellectual history of the early-modern period (1500-1700), with a special interest in epistemic issues around the emergence of modern natural science (the "Scientific Revolution"). In 2012, I initiated the international conference series "Scientiae: Disciplines of Knowing in the Early Modern World."

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