Prometheus 6

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.

Meanwhile, the Constitution is perfectly clear about the purpose of the document and every statement therein.

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

What Did the Framers Have in Mind?

Whatever side of the Second Amendment controversy you may be on, the clear winner in District of Columbia v. Heller (striking down a Washington, D.C., ban on hand guns) was intentionalism, the thesis that a text means what its author or authors intend.

The text in dispute is 27 words long, and it is cited in the opening pages of each of the three opinions: “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.” None of the words in this sentence is esoteric and the syntax is straightforward; but if textual simplicity were sufficient to determine meaning, there would be no reason for 157 pages of close legal and linguistic argument.

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.