Semantic Originalism from the Other Italian Stallion?

Back in 1998 Antonin Scalia published A Matter of Interpretation, in part of which he and Ronald Dworkin debated whether judges who properly employ public-meaning originalism in order to determine what the Constitution means will, on occasion, have to engage in moral reasoning. Very roughly, public meaning originalism holds that a statute (or Constitutional clause) expresses whatever a competent speaker of the language in which the statute is written — who was living at the time the statute was enacted — would have understood the statute to express. (E.g. an 18th Century law “only gay people may officiate at awful weddings” no doubt expresses the requirement that ministers who preside at awe inspiring nuptials must be jovial, whereas a law with that same syntax enacted in the late 20th century may well express the (admittedly bizarre) requirement that the ministers who preside at unpleasant weddings must be homosexuals. This highlights one essential aspect of textualism — the meaning of a law is “fixed” at the time of the law’s enactment.)

According to Dworkin, judges who use public-meaning originalism to determine whether (certain) actions are prohibited by (certain) laws must engage in moral reasoning. So, in order to ascertain whether the death penalty is prohibited by the Eighth Amendment, the public-meaning originalist must complete two steps: (1) figure out what someone living at the time of the Constitution’s enactment would have understood the statement “cruel and unusual punishments [shall not] be inflicted” to express and (2) because he would have understood that statement to express a prohibition against inflicting punishments that are (a) not commonly inflicted and (b) uniquely opprobrious, ascertain whether the death penalty is (a) and (b). But, because the death penalty is uniquely opprobrious is a moral proposition, the public meaning originalist must figure out whether a moral proposition is true — he must engage in moral reasoning.

Scalia disagrees: “[w]hat [the Eighth Amendment] abstracts…is not a moral principle of ‘cruelty’ that philosophers can play with in the future, but rather the existing society’s assessment of what is cruel. It means not (as Professor Dworkin would have it) “whatever may be considered cruel from one generation to the next,” but ‘what we consider cruel today [mid-18th century]'” (Scalia, 145).

In a later post I’ll agree both with Scalia’s lamentably inchoate (and ambiguous) response and that it provides a plausible alternative to semantic-originalism. Meanwhile, I just want to note that it looks like Samuel Alito may be in Dworkin’s camp on this one. See this argument — from his dissent in Kennedy v. Louisiana — for upholding a Louisiana statute proscribing capital punishment for child rapists:

The Court’s final…justification for its holding is that murder, the only crime for which defendants have been executed since this Court’s 1976 death penalty decisions, is unique in its moral depravity and in the severity of the injury that it inflicts on the victim and the public.

With respect the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?

Implicit here is that Alito accepts (at least arguendo) that the Eighth Amendment prohibits cruel punishments (and that whether a punishment is cruel is, in turn, linked to how morally depraved is its victim). Verry interesting, and this is not the first time Alito’s originalism has lead him to differ from Scalia. (It is, of course, possible that Alito is attempting to provide a “skeptical response” to Stevens’s opinion, i.e. to show that, even granting Stevens his interpretive apparatus, the Court’s holding is wrong.)

Disarming the Second Amendment

There’s an interesting exchange going on over at the Volokh Conspiracy regarding whether there is a Constitutional Right to Self Defense. Both those who argue that there is;, and those who deny it seem to agree at least that the Second Amendment guarantees a right to use arms in self defense, and this, no doubt, because Heller unambiguously asserts as much. It seems to me, however, that there is a good originalist argument to the conclusion that the Second Amendment does not guarantee a right to use arms in self-defense.

Recall that the Second Amendment reads: “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.” Much of the debate over the meaning of the Second Amendment concerns whether its prefatory clause (“A well regulated Militia…a free State”) qualifies the right expressed in the operative clause (“the right…infringed”).

One side (the “collective rightists”) says that the prefatory clause puts pressure on us to read the operative clause as granting to people who belong to a well regulated Militia; the right to keep and bear arms. Put another way, the collective rightists say that the Second Amendment is elliptical for something like: “provided x is in the militia, x has a right to keep and bear arms.”

Others (the “individual rightists”) insist variously (i) that because any statement of the form “x’s being the case, y” is logically equivalent to “x and y,” the Second Amendment entails that “the right of the people to keep and bear arms shall not be infringed” simpliciter, and (ii) that the prefatory clause is really included to make the Constitution more internally coherent, by alluding to the “necessary and proper” clause of Article I and suggesting that, although Art. I gives Congress broad powers to regulate the militia, one unnecessary and improper piece of militia regulation deprives the people of the right to keep and bear arms. (See Nelson Lund’s excellent amicus brief for a dispositive defense of the individual rightist position.)

Because (a) my purpose here is to show that, even granting a strongly unqualified reading of the Second Amendment, it does not protect the right to use arms in self defense and (b) the Individual Righists are, after all, correct, I will not consider the competing merits of the Constitutional exegeses just summarized; instead, I assume that the Second Amendment entails that “the right of the people to keep and bear Arms shall not be infringed” (or forall(x):(if x is a person then in (virtually) all circumstances x has a right to keep and bear arms — call this the “strong reading”).

Even assuming the strong reading, questions concerning the meaning of the Second Amendment remain. To some of these questions (what are the necessary and sufficient conditions of something’s being a person? and what is it for x to have a right to do y?) the commonsense answer is, for our purposes, satisfactory; we can tell what a person is, and if x has a right to do y then it is (hedging a bit) under all but the most egregious circumstances impermissible to prevent x from doing y.

The questions to which we need to afford more careful answers are (1) what are “arms”? (2) what is it for one to “keep arms” and (3) what is it for one to “bear arms.” A corollary to the Individual Rightist view detailed above is a set of answers to each of these questions, each member of which is articulated by Antonin Scalia in his majority Heller; opinion. I will assume, with one important exception, that these answers are correct. They are:

(1) “The 18th-century meaning [of the term “arms”] is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offense, or armour of defense.”… The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity [as well]…[T]he Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”

(2) “We turn to the phrases ‘keep arms’ and ‘bear arms.’ Johnson defined ‘keep’ as, most relevantly, ‘[t]o retain; not to lose’ and ‘to have custody.’ No party has apprised us of an idiomatic meaning of ‘keep Arms.’ Thus, the most natural reading of “keep Arms” in the Second Amendment is to ‘have weapons.’…’Keep arms’ was simply a common way of referring to possessing arms, for militiamen and everyone else;.

(3) “At the time of the founding, as now, to ‘bear’ meant to ‘carry.’… Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment…indicate[s]: ‘wear, bear, or carry…upon the person or in the clothing or in a pocket, for the purpose…of being armed and ready for offensive or defensive action in case of conflict with another person.’ We think that Justice Ginsburg accurately captured the natural meaning of bear arms…Petitioners justify their limitation of ‘bear arms’ to the military context by pointing out the unremarkable fact that it was often used in that context — the same mistake they made with respect to ‘keep arms.’…[But] Cunningham’s legal dictionary, cited above, gave as an example of its usage a sentence unrelated to military affairs (“Servants and labourers shall use bows and arrows on Sundays…and not bear other arms”). And if one looks beyond legal sources, ‘bear arms’ was frequently used in nonmilitary contexts.”

I unconditionally acknowledge the correctitude of explications (1) and (2). Thus I acknowledge that the operative clause of the Second Amendment amounts to, in part, “the right of the people to retain and have custody of various carry-able weapons shall not be infringed.”

Regarding (3), however, I find Scalia’s explication of what it means to “bear arms” contradictory. He pretty clearly nods assent to the claim that to bear arms is to carry weapons on one’s person for the purpose of self defense — this is what Ginsburg’s assertion amounts to. On the other hand, however, he seems explicitly to deny that this is what it means. Presumably the quotation from Cunningham’s legal dictionary grants permission for servants and labourers to carry weapons on their persons not; solely for the purpose of self defense, but instead to conduct their various labors. Additionally, Scalia acknowledges later that one may sensibly assert that, say, “Jones is allowed to bear arms for the purpose of killing game” (Scalia, 15). To co-opt one of his own reductios, “to carry weapons on one’s person for the purpose of self defense for the purpose of killing game” is “worthy of the mad hatter” (Scalia, 16).

Scalia might reconcile the tension in his explication of what “bear arms” means by asserting that the “bear arms” is (a) an ambiguous phrase and (b) in the Second Amendment means both “carry weapons on one’s person” simpliciter; and “carry weapons on one’s person for the purpose of self defense.” However, earlier in his opinion Scalia mocks any sentence in which an ambiguous word or phrase is granted <i>both</i> of its meanings. To take “he filled and kicked the bucket” as equivalent to “he filled the bucket and died” is, by Scalia’s lights, “grotesque.”

One might also invoke the doctrine of noscitur a sociis; — which holds that “a word is given more precise content by the neighboring words with which it is associated” (Scalia’s opinion in United States v Williams,8) — and note that the prefatory clause demands that we resolve the ambiguity in “bear arms” in favor of “carry weapons on one’s person for the purpose of self defense.” After all, if one’s right to bear arms has something; to do with its being necessary that one be able to serve in a militia then surely the right should be interpreted so that it is as martial and offensive as possible! There are two reasons this is false. First, if we assume that the Second Amendment guarantees only that the right, inter alia, to carry arms on one’s person for the purpose of self defense then we must also acknowledge that the government may prohibit people from carrying arms for other; purposes (as ornaments, say, or for delivery). Second, it is far from clear that carrying arms for the purposes of self defense has anything more “to do” with serving in a well regulated militia than just carrying arms simpliciter; does. Surely it is vastly more important, in order that a Militia might assemble and be functional quickly, that people be allowed to keep and carry their weapons at all times (so as to be ready in a moments notice to report to the barracks) than it is that they get good target practice firing at aggressive brigands!

In light of all this, it seems to me that “bear arms” means “carry arms on one’s person. Thus we arrive at the meaning of the second amendment’s operative clause; “the right of the people to retain and have custody of various carry-able weapons, and to carry those weapons on their persons, shall not be infringed.” How does the Second Amendment protect the right to use those arms in self-defense?