Lund on Scalia in Heller: Nelson Lund has just uploaded to SSRN a new and important criticism of Justice Scalia's opinion in DC v. Heller: The Second Amendment, Heller, and Originalist Jurisprudence. While praising Justice Scalia for his originalist analysis that the Second Amendment protects an individual right to arms for purposes of personal and collective self-defense, the article mainly considers the exceptions to this right identified by Justice Scalia in dicta--which Lund quite reasonably fears will be followed by lower courts in future cases that the Supreme Court will then refuse to review. I will not summarize Lund's evaluation of each exception but simply recommend that you read it. The paper is clearly written and accessible to anyone interested in this topic.

Of most interest to me was Lund's assessment of where Justice Scalia went wrong and how he should have approached the problem. Justice Scalia contends that the exceptions he lists are historically grounded limits on the right, but as Lund demonstrates, Justice Scalia fails to establish this in the opinion, and these claims are unfounded.

In my view, and very briefly, I think that one reason why Justice Scalia approaches the subject this way is because (a) he views constitutional rights as trumping any cost-benefit calculations and (b) he objects to judicial second-guessing of legislative cost-benefit calculations. So if a constitutional right is "absolute" in this respect, it must be narrowly tailored so as to remove any "exceptions" from its scope. And to be "originalist," in Justice Scalia's view, this narrow tailoring must be a product of historical inquiry. Lund shows why Justice Scalia's efforts fail on their own terms to do this. And Lund also explains why such inquiries are typically problematic:
The fundamental problem with the Heller opinion is its failure to admit that some questions about the original meaning of the Constitution cannot be answered on the basis of a bare textual and historical inquiry. The logic of Justice Scalia’s theory that the Second Amendment codified a pre-existing right would render virtually all modern gun control regulations unconstitutional because such regulations did not exist in 1791 (and everyone therefore had a right to do anything that was not forbidden) and there is no historical record indicating which unenacted regulations would have been generally considered to be permissible at that time.
Instead, Lund proposes the following approach (which I am truncating for purposes of a blog post):
The core of originalism is the proposition that text and history impose meaningful binding constraints on interpretive discretion, but that does not mean that every question can be answered by identifying (or guessing at) the “original expectations” of the lawmakers. Unless one rejects originalism in favor of living constitutionalism or judicial deferentialism, some recourse to the purposes or principles of the Constitution’s provisions is unavoidable. [snip]

[T]he Second Amendment [does not] require the virtual absence of regulatory restrictions on firearms that existed in 1791. New regulations do not violate the Constitution just because they are new. In order to faithfully apply the Second Amendment to contemporary circumstances, the courts must instead evaluate restrictions on the right to arms in light of the purpose of the constitutional provision, which is to protect what its enactors considered the inherent or natural right of self defense. And contrary to the position Justice Scalia tried to take in Heller, that cannot be done without comparing the burdens of a challenged regulation on the individual’s right to self defense with the regulation’s benefits in promoting public safety. This balancing of burdens and benefits can be done overtly or covertly, but it cannot be avoided.

Justice Scalia showed one way to do it in Heller. Just announce the result. Or, what may be worse, announce that a handgun ban is unconstitutional because a large number of Americans have weighed the costs and benefits of keeping handguns in their homes, and decided to keep them. I think this approach is self-evidently wrong, at least in the sense that it is indistinguishable from living constitutionalism.

Justice Breyer’s approach in Heller also seems to me to be wrong, at least to the extent that it resembles what I described earlier as judicial deferentialism. He performs an explicit cost/benefit analysis, but one that is shaped by deference to the judgments of elected officials. The entire analysis is thus conducted in the shadow of a strong presumption of constitutionality, and one that could easily become an effectively irrebuttable presumption. This is how judges repeal constitutional rights that they dislike.

The approach most consistent with the original meaning of
the Constitution would reverse Justice Breyer’s presumption, and require the government to provide an extremely strong public-safety justification for any gun control law that significantly diminishes the ability of individuals to defend themselves against criminal violence.

In performing that analysis, doctrinal labels like “strict scrutiny” or “reasonable regulation” would be less important than judicial respect for the value of the inherent right of self defense and a correlative judicial skepticism about the wisdom of government officials who want to restrict the people’s ability to exercise that right.
"Using this approach," he writes, "it does not seem to me that the D.C. handgun ban presents an especially close question."

In my writings, I have defended a Presumption of Liberty as is a method of constitutional construction for the protection of individual liberty to be used when constitutional interpretation to discover the original meaning of the text is insufficient to resolve a particular constitutional controversy. In A Libertarian Constitution, Lund's review of my book, Restoring the Lost Constitution: The Presumption of Liberty, he criticized my applying a Presumption of Liberty to protect "any of an open-ended class of natural rights unless the government can demonstrate that the law meets stringent criteria of necessity and propriety." But in this paper he acknowledges the usefulness of a Presumption of Liberty at least to protect the enumerated right to keep and bear arms. I won't pursue this disagreement further here, except to note that he accepts the approach as practical with respect to evaluating the right to keep and bear arms by its purpose of facilitating the (unenumerated) natural right of self-defense.

One final note: Especially because I largely agree with Lund's analysis, I find it unfortunate that the paper repeatedly employs a harsh rhetoric towards Justice Scalia. In contrast, although Lund's 2005 review of my book is unremittingly critical, it remains respectful. I am myself a major critic of Justice Scalia's "faint-hearted" approach to originalism in which he leaves himself sufficient "outs" to enforcing original meaning as to undermine the conclusion that he is really an originalist. (See Scalia's Infidelity: A Critique of Faint-Hearted Originalism.) And I will always be saddened by his vote in Raich. Nevertheless, I think Justice Scalia is among the most thoughtful Justices in our history and he is certainly among the most forthright in articulating and defending his view of the proper judicial role. And even before he was a Justice, he pioneered the "new originalism" with his early rejection of original framers' intent in favor of original public meaning--the approach he skillfully employs in Heller to identify an individual right to bear arms in the Second Amendment. The tone of Lund's piece is neither necessary nor constructive. All of his insightful substantive criticisms could have been made without it, and might have stood a much better chance of moving Justice Scalia himself to reconsider the way portions of his Heller opinion were constructed. This is, however, a pre-publication draft and I sincerely hope that Nelson revises it in this regard before publication.

Update: The post above was corrected to reflect the fact that Professor Lund does NOT see the unconstitutionality of the DC gun ban as a "close question" under the approach to constitutional construction that he recommends.

Interpretation vs Construction in Heller: Larry Solum has a very important post today on Nelson Lund's new paper on the Heller case. Larry makes explicit what was implicit in my blog post on Saturday. The bulk of Justice Scalia's opinion is its original public meaning of the Second Amendment. The day after it was announced, I described Heller in the Wall Street Journal as "the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court." After ascertaining the meaning of text, the Court concludes that the DC gun ban violates the core of this provision. I stand by my effusive praise of the opinion and its holding. Later in the opinion, however, Justice Scalia briefly and in dicta offers a list of gun laws that he says the decision does not call into question. It is on this very brief part of the opinion that Nelson Lund focuses in his paper.

In his post, Barnett on Lund on Scalia: The Construction Zone and District of Columbia v. Heller, Larry Solum explains that Heller has this dualist quality because of the implicit distinction between constitutional "interpretation" and constitutional "construction." Here is how he summarizes these concepts:
We can use the following rough cut at a statement of the distinction:
Interpretation: The activity of determining the linguistic meaning (or semantic content) of a legal text.

Construction: The activity of translating the semantic content of a legal text into legal rules, paradigmatically in cases where the meaning of the text is vague.
The Heller majority reasons that a handgun ban infringes the core linguistic meaning of the operative clause of the Second Amendment. Indeed, that is exactly what the Court said in the following passage:
The portion of the District of Columbia ordinance that bans possession and carrying of handguns is a core case of infringement of the right to keep and bear arms. It is infringement, because a ban is the most extreme form of regulation and therefore is within the core meaning of "infringement."
But what about regulations that fall outside the "core"--we could use H.L.A. Hart's terminology and use the term "penumbra" to describe cases in which the semantic content (linguistic meaning) of the constitution is vague.

Originalist constitutional interpretation can only tell us what the constitution meant. If the original meaning was vague, then constitutional construction is required to provide some decision procedure (a supplementary rule, a balancing test, or something else) to permit the application of the vague provision to particular cases. When constitutional decisionmakers try to apply vague provisions to particular cases they are operating in what I have called the construction zone.
In a portion of his post that you should read for yourself, Solum identifies the potential vagueness in the original meaning of the terms "right," "keep," "bear," and "infringed"--each of which requires construction when a case arises in the penumbra of its meaning. He then concludes:
Once we appreciate the distinction between interpretation and construction, the seeming anomaly in Heller simply disappears. The holding in Heller resulted from interpretation--a gun ban is within the core prohibition of the Second Amendment. But there are many other questions, mentioned in various dicta in Heller, that are outside the core and hence which cannot be resolved by interpretation. Since the operative reasoning and hence the holding of Heller was limited to the core, Justice Scalia was correct when he said that "nothing in our opinion should be taken to cast doubt" on regulations that are outside the core. The constitutional status of those regulations must be resolved by work in the construction zone.
I think Solum is exactly right about this. Justice Scalia's originalist interpretation of the Second Amendment AND his application of that original public meaning to strike down the DC gun is powerful. The weakness of his opinion is confined to his failure to perceive that the other measures to which he refers in dicta would require constitutional construction that is not, strictly speaking, originalist. Lund intuits this when he says (as I quoted earlier):
The core of originalism is the proposition that text and history impose meaningful binding constraints on interpretive discretion, but that does not mean that every question can be answered by identifying (or guessing at) the “original expectations” of the lawmakers.
Lund's acknowledgment of the need to move beyond originalist interpretation is praiseworthy, as is his implicit adoption of a Presumption of Liberty to fill the gap:
The approach most consistent with the original meaning of the Constitution would reverse Justice Breyer’s presumption, and require the government to provide an extremely strong public-safety justification for any gun control law that significantly diminishes the ability of individuals to defend themselves against criminal violence.
But because Lund does not explicitly acknowledge the crucial distinction between "interpretation" and "construction," I am not sure he fully appreciates the necessity of engaging in both sorts of activities, and the need to clearly identify and defend one's approach to construction. His adoption of a Presumption of Liberty to protect the "inherent" right of self-defense undermines his previous criticism of using the presumption to protect the other inherent "rights . . . retained by the people" to which the Ninth Amendment expressly refers--rights that are not to be "denied or disparaged"--as well as "the privileges or immunities of citizens of the United States" (of which the right to keep and bear arms is one).

Perhaps now that Lund has wrestled with this issue is the context of the right to keep and bear arms, and the inherent right of self defense, he may be more open to adopting a general Presumption of Liberty as a principle of constitutional construction than he was when reviewing Restoring the Lost Constitution where, following the lead of Keith Whittington, I employed the interpretation/construction distinction. I examine this distinction in greater detail in my new paper, The Misconceived Assumption About Constitutional Assumptions. But if you are seriously interested in Heller and originalism, you should really read Larry Solum's article, District of Columbia v. Heller and Originalism.

Update: Bad link to Larry Solum's blog post fixed.

Related Posts (on one page):

  1. Interpretation vs Construction:
  2. Interpretation vs Construction in Heller:
  3. Lund on Scalia in Heller:

Interpretation vs Construction: Readers who think they may one day want to be legal academics should make it a habit to read University of Illinois Professor Lawrence Solum's Legal Theory Blog. There you will find his recommendations of recent legal scholarship, as well as his invaluable Legal Theory Lexicon. Today, for example, he explains the interpretation-construction distinction.
We can roughly define these two activities as follows:

* Interpretation: The activity of determining the linguistic meaning (or semantic content) of a legal text.

* Construction: The activity of translating the semantic content of a legal text into legal rules
In my experience, law professors conflate these two activities all the time. What matters is not the terminology--that is merely semantic--but that serious confusion results from failure to recognize them as two different sorts of activities. The failure to distinguish which of these two activities are being discussed obscures sources of potential common ground as well as the substance of whatever genuine disagreements may exist.

After a very useful discussion of the difference senses of "meaning" as well as the difference between "vagueness" and "ambiguity," Solum then asks, "What Work Does the Interpretation-Construction Distinction Do?"
Is this interpretation-construction distinction really necessary? What work does it do? Does the distinction reflect a real and fundamental difference between different modes of legal practice?

One way to think about these question is to imagine what things would look like if we didn't have the interpretation-construction distinction. What if we called everything "interpretation" and didn't recognize construction as a distinct activity. Well, we could reinvent the distinction within the concept of interpretation. You can imagine talking about two stages of interpretation--stage one corresponding to the narrower idea of interpretation and stage two corresponding to construction. But if we did that, we would simply be using different labels to refer to the same concepts.

So let's do a thought experiment that involves our failing to distinguish between the lingustic meaning and legal effect of legal texts. Judges and legal theorists have actually done that (so I guess it isn't really a "thought experiment). For example, Allan Farnsworth once wrote, "[Courts] have more often ignored [the interpretation-construction] by characteizing the process of 'construction' as that of 'interpretation' in order to obscure the extentof their control over private agreement." If courts deliberately ignore the distinction in order to make their role opaque rather than transparent, then legal theorists can deploy the interpretation-construction distinction in order to expose what is really going on. (There is a Legal Theory Lexicon entry on transparency.)

But sometimes courts run interpretation and construction together without any awareness of the what they are doing. That is, the court may not realize that there is a difference between the inquiry into the linguistic meaning of a legal text and the creation or application of subsidiary rules that translate the semantic content into legal content. When courts (or legal theorists) are confused in this way, it is not surprising that their reasoning is likely to be confused or incoherent. On the one hand, they may try to squeeze constructions out of linguistic facts. On the other hand, they may try to reach conclusions about the actual linguistic meaning of a text on the basis of policy considerations. (Making the egregious error of arguing for the existence of a fact from its desirability.) When this happens, the interpretation-construction distinction allows the legal theorist to step in and reconstruct the arguments so that they make sense (or if they don't, then in a way that exposes the error).

So is the interpretation-construction distinction real and significant? Of course, it isn't the particular terminology that matters, but the substance of the distinction is not something that legal theorists can do without. The linguistic meaning of a legal text and the content of legal rules are really two different things.

The Interpretation-Construction Distinction and the New Originalism

One especially important application of the interpretation-construction distinction occurs in the context of debates over the so-called "New Originalism." One way in which the "New Originalism" may be new is that it embraces the interpretation-construction distinction. (This is especially clear in the work of Keith Whittington and Randy Barnett.) The "Old Originalism" focused on the original intentions of the framers or ratifiers and was offered as a theory of constitutional interpretation. Old Originalists seemed to believe that the original intentions of the framers fully determined the translation of the constitutional text into the correct set of legal rules: interpretation could do all the work. New Originalists deny that this is true. They argue that the linguistic meaning of the Constitution is its original public meaning, but acknowledge that the original meaning runs out when the semantic content of the Constitution is vague: once interpretation makes its exit, construction enters the scene.

Thus, the interpretation-construction distinction opens the door for a partial reconciliation of originalism with living constitutionalism: the Constitution can live in the "construction zone" where the linguistic meaning of the Constitution underdetermines results. We might call the view that original meaning and a living constitutionalism are consistent "compatabilism"--the case for this view has been made by Jack Balkin.

This also suggests the possibility that continued appeals to "original intentions" or "original expected applications" beyond the original public meaning of the text are actually efforts to engage in construction to address issues of vagueness in original meaning. Some originalists who resist compatibilism are really arguing the living-constitutionalist construction is inconsistent with originalist construction.

This is just one example of the interpretation-construction in action. It is relevant in a number of other doctrinal contexts, including contract law, trusts and wills, and the theory of statutory interpretation and construction.


Once you become aware of the interpretation-construction distinction, you will begin to notice its ubiquity and subterranean quality. The distinction is ubiquitous, because the law in theory and practice is almost always about the application of legal texts to particular cases. The distinction is subterranean, because of the failure of theorists, judges, and lawyers to observe the distinction, with resultant deception or confusion. With the distinction at hand, your own thinking about the law can become clearer and more transparent, and you possess a powerful tool for understanding or criticizing the work of others.