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.”So does this conflict bode well or ill for our faith in the ability of the Supreme Court to do its job? My two cents: it is nonsense to think that a document debated over months and years and produced by multiple individuals has a single underlying meaning. The internal conflicts within the document are its key strength. The idea that one meaning, and one meaning only, exists plays into judicial arrogance: "the Constitution means what I say it means because I can determine its true meaning."
Heady--if childish--stuff.
