1
Reading with Guns:
District of Columbia v. Heller
All new laws . . . are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.
«JAMES MADISON1»
I am not so naĂŻve (nor do I think our forebears were) as to be unaware that judges in a real sense âmakeâ law. But they make it as judges make it, which is to say as though they were âfindingâ it.
«ANTONIN SCALIA2»
If Kafka writes so intensively about the Law it is because the law, bureaucracy, and theology are the intertwined figures of a hierarchical social order built on the necessity and the impossibility of interpretation. My first case study is of an American judgment that sets in play an interpretive conflict that is resolved with the performative construction of a right and the reality it brings into being.3
The case of District of Columbia v. Heller,4 decided by a 5â4 split in June 2008, is remarkable for two reasons: It was the first time that the United States Supreme Court had engaged with the full implications of the Second Amendment to the US Constitution, holding that the amendment articulated the right of private citizens to possess firearms for such purposes as self-defense; and the decision, written by the late Justice Antonin Scalia, was self-consciously and explicitly âoriginalist,â5 seeking to determine the âoriginal public meaningâ of the text of the amendment without regard to the intentions of those who framed and ratified it, using the text itself as the primary evidence for its meaning at the moment of its enunciation, and confining its legal force to that historically delimited meaning. The decision invalidated the District of Columbiaâs comprehensive gun-control legislation but left the way open to more restricted laws controlling the possession of firearms in the United States.
The way in which the decision was reached has implications for the practice of textual interpretation more broadly. First, it raises questions about how texts migrate from the past and are incorporated into each successive present. Against the historicism that constitutes the unexamined norm of originalist interpretation (and this includes both the âtextualistâ originalism of Scaliaâs ruling and âcontextualistâ forms of historical analysis), I argue that texts have no privileged âoriginal meaningâ but change their meanings (differently at different levels of determinacy) as they acquire new purposes and uses. Second, I seek to specify the institutional dimensions of the regime of interpretation that effects the translation of past texts into present structures of interest. In the broad sense in which I define it here, the interpretive regime is not just a matter of the rules of a discursive game but is effected by a mix of material, political, and disciplinary infrastructures (the interpretive institution of the Law) that make those rules binding upon a particular interpretive community. Finally, I examine the play of blindness and insight that constitutes, in this case and more generally, the rhetorical condition of possibility for the establishment of a truth which then defines and enacts a reality.
I
The text of the Second Amendment, ratified in December 1791 as one of the ten amendments to the Constitution which make up the Bill of Rights, reads as follows:
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.6
This enigmatic documentâa âmanifestly puzzling text,â7 âperhaps one of the worst draftedâ of all of the Constitutionâs provisions,8 and syntactically nonsensical unless one disregards its idiosyncratic punctuation9âhas given rise to an enormous interpretive literature, most immediately in the clash between Scaliaâs majority opinion and the two dissenting opinions written by Justices Stevens and Breyer. These two sides craft diametrically opposed interpretations:
Emphasizing different parts of the historical record, they draw different historical conclusions. They diverge on the significance to be attached to the extant judicial precedent. And they urge different readings of the sparse language of the amendment, the dissent emphasizing and the majority opinion minimizing the significance of the introductory language.10
We should start, then, with the syntax of this single sentence composed of a main clause and an absolute clause that qualifies it. Here the interpretive crux has to do with the politically charged distinction between a âprefatoryâ and an âoperativeâ clause,11 and with the nature of the qualification: does the initial absolute clause (âA well regulated Militia, being necessary to the security of a free Stateâ) merely explain the right to keep and bear arms (âbecause a militia is necessary . . .â), or does it limit it (âbecause and to the extent that a militia is necessary . . .â)? In Scaliaâs view, the function of the prefatory clause is to announce a purpose or justification but not to limit the operative clause grammatically;12 although there is a logical link between the two, the operative clause (âthe right of the people to keep and bear Arms, shall not be infringedâ) is relatively autonomous, and indeed Scalia treats it first and foremost as a self-contained unit before going on to discuss the prefatory clause. Stevens criticizes that reversal of the order of the clauses, with its consequent hierarchical ordering, and he treats the initial clause as a restrictive enunciation of the amendmentâs purpose: not to protect civilian uses of firearms, which are nowhere mentioned, but solely to preserve the institution of the militia.13 What is more generally at issue here, however, is the divergent uses made of eighteenth-century conventions of statutory interpretation of prefatory materials. For Scalia, the key text is an English case from 1716 which declares that a preamble cannot restrict the effect of words used in the âpurviewâ;14 Stevens cites the greater weight that Blackstone allows to contextual materials when words are âambiguous, equivocal, or intricate,â in which case âthe proeme, or preamble, is often called in to help the construction of an act of parliament.â15 âIn light of the Courtâs invocation of Blackstone as âthe preeminent authority on English law for the founding generation,ââ Stevens writes, âits disregard for his guidance on matters of interpretation is striking.â16
A second area of contention concerns the semantics of key terms such as âkeep and bear arms,â âwell regulated,â âMilitia,â and âthe people.â For âkeep and bear armsâ there is solid evidence from linguists and professional historians that the phrase âbear armsâ had, at the time, an almost exclusively military meaning. Kozuskanich documents this through statistical analysis of digitally archived documents from the time of the Constitutionâs framing,17 and the amicus brief submitted by a group of linguistics professors notes that the term only changes its idiomatic military meaning when additional modifying language (such as âfor self-defenseâ) is attached to it.18 âTo bear armsâ is the equivalent of arma ferre, and as Wills wryly comments, âone does not bear arms against a rabbitâ:19 arma are, etymologically, war equipment, and the word has no singular form. âKeep and bearâ is a single phrase, having to do with the rights of a militia: âTo keep-and-bear arms was the distinguishing note of the militiaâs permanent readiness, as opposed to the armyâs duty of taking up and laying down . . . their arms in specific wars. The militia was maintained on a continuing basis, its arsenal kept up, its readiness expressed in the complex process specified by âkeep-and-bear.ââ20
For Scalia, however, that military application of the phrase is only unequivocal when âbear armsâ is coupled with âagainst.â His strategy is to break the phrase into its component parts, which allows him to find that the word âarmsâ includes weapons that are not used for military purposes (2791),21 that âkeepingâ arms doesnât have an exclusively military sense (2792), and that the word âbearâ means âcarryâ and, when used with âarms,â refers to carrying for confrontation and âin no way connotes participation in a structured military organizationâ (2793). The argument made by the linguistics professors that the military sense of âbear armsâ can be modified if a particular purpose expressly qualifies it (such as âfor the purpose of killing gameâ) is summarily dismissed:
That analysis is faulty. A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on linguistics). . . . If âbear armsâ means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one cannot simply add âfor the purpose of killing game.â The right âto carry arms in the militia for the purpose of killing gameâ is worthy of the Mad Hatter. (2795â96)
Stevensâs rejoinder to this, arguing that the purposive phrase changes the meaning from an idiomatic military sense to a literal sense, relies on a notion of the âmost natural meaningâ of âbear armsâ in the absence of a qualifier, a natural meaning that can be confirmed by reference to the preamble. But such a reference is precisely what Scalia discounts by means of the privilege he allows to the âoperativeâ clause: the prefatory reference to the militia is incidental to the right enunciated in the second clause, since that right is not restricted to the narrow purposes of maintaining the state militias.
In order to define the right in this expansive manner, it must be tied to âthe peopleâ as a whole, and this whole is then either equated with or exceeds the militia, broadly conceived. Scalia thus contrasts the rights-bearing people, as the entirety of the citizenry, with the subset of able-bodied males within a certain age range which makes up the militia (2791), and he thereby refuses to read the âmilitiaâ of the initial clause as synonymous with the âpeopleâ of the second. As Amar notes, this makes the link to the preamble textually irrelevant; it is the people, not the militia, who bear the right.22
If we assume that the reference in the prefatory clause to the militia is in some way integral to the amendmentâs structure, however, then the question becomes one of the kind of right that is established and the way in which it is related to the importance of a âwell regulated Militia.â Scalia reads the amendment as the codification of a common-law right to bear arms for self-defense and as an incorporation and universalization of the separate English statutory right enunciated in the 1689 Declaration of Rights, which allowed âthe Subjects which are Protestantsâ to have arms for their personal defense; the facilitation of the militia is no more than a secondary effect of these personal rights. Scaliaâs historical evidence is drawn largely from English constitutional jurisprudence and from anti-Federalist arguments made during the ratification period. It assumes a continuity with âa body of writings absorbed by Americans prior to 1776,â without accounting for the ways in which the revolution transformed popular thinking about the militia.23 The amicus brief submitted by a group of academic historians, by contrast, points to the broader context of debate and to the paucity of contemporaneous references to the private keeping of firearms: the fact that the modern controversy over the Second Amendment âhas been forced to squeeze so much modern interpretive blood from so few evidentiary turnips . . . is itself an indicator of how minor a question this was at the time.â24 This is to say, rather than either a personal or a collective right, the Second Amendment articulates a civic right, which is closely tied to a duty of military service. Saul Cornell recalls that the amendment
was drafted and ratified by a generation of Americans who feared standing armies and had witnessed a systematic policy to disarm their militias. With these concerns in mind, Americaâs first constitutions explicitly protected the right of citizens to keep and bear those arms necessary to meet their militia obligation.25
That civic right is complicated, however, by the struggles between Federalists and proponents of statesâ rights that came to dominate debates over the framing and ratification of the Bill of Rights. Specifically, at issue was whether power over the militia would be centralized in Congress or whether the amendment would leave a residual military power with the states, which could be used as a check on federal power.
Here the question of the drafting history becomes crucial. Scalia gives it short shrift: investigating the history aims to establish legislative intent, but intent is neither unitary nor, in most cases, able to be objectively reconstructed. Since there is rarely any awareness on the part of legislators that a particular wording is likely to give rise to problems of interpretation, for nearly all âissues of constructionâ there is, effectively, no âintent.â26 For Stevens and for the academic historians, however, examination of the drafting history gives a clear indication of the relevant purpose of the amendment, and that purpose serves to anchor interpretation in its historical context.
At the First Federal Congress in 1789, James Madison was given the task of sorting and assembling proposals from the states for amendments to the Constitution and shepherding them through the drafting process. (He wrote to a correspondent that year of the need to placate the states, which had agreed to ratify the Constitution only on a âtacit compactâ of later amendments to do with the militia.)27 His initial formulation of what was to become the Second Amendment read as follows:
The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.28
As Stevens points out, this text is striking for its omission of civilian uses of firearms (something that the Virginia Ratifying Convention, for example, had proposed), and Madisonâs inclusion of an exemption for conscientious objectors âconfirms an intent to describe a duty as well as a right, and...