Background on interpretation
Just as a background to Armageddon... there are several schools of thought as to how you interpret a constiutional or statuory provision, and we may see them all in play tommorrow. Note that a judge may use one of them, or a mixture, or explain his/her position by saying it's justified under more than one. One approach you'll rarely see is "living constitution." It may be the underlying thought, but to come out and say it is a bit too obvious. Main approaches:
1) Textualism (a favorite of Scalia). The words mean what they say, and unless hopelessly muddled, there is no reason to study the writer's intent. After all, the legislature or the people voted on the words, not on the drafter's intent.
2) Original purpose/understanding (a favorite of Thomas, and well suited to combine with textualism). On a constitutional level this started out as original intent -- what did the constitutional convention, of the First Congress, intend to do? Given limited records, this can be difficult to judge, but we must do our best to carry out their intent. (As Gene Volokh points out, if you want to adjust or repair a machine, you go to the manufacturer's manual to understand how it was meant to work. The Framers created a very good machine for manufacturing laws).
This evolved into original public understanding. After all, it was the people of the US as a whole who gave life to the constitutional provisions, via convention or legislative ratification. Let's look to what they understood things to mean. The records of the constitutional convention and the Framer's private letters weren't available to the people then, and are accordingly less important (except to the extent they, like anyone's letters, suggest what people in general thought). Now we can consider newspaper articles, letters, and even things written after the ratification, so long as it's unlikely that popular views as to meaning had changed.
3) Pragmatism. Don't sit there with a grammar book trying to parse the words. Figure out what the drafters meant to do by it, and construe their words so as to make that outcome more likely. They probably weren't all that careful about word choice anyway. They just said "freedom of speech" and didn't bother to explain what exceptions there are, did they mean the 1776 British idea of it, something much broader, or what?
As one fellow said--you can argue for any of these standards, and maybe the most we can expect is that a judge will stick to one or a fixed combination of them, and not be textualist when it yields a desired result, then switch to pragmatism in a different case because that gives the desired result.
(I leave off other approached, such as Prof. Levinson's argument that we have an unwritten consttution as well as a written one, the unwritten may add to our freedoms but not negate them, since these aren't likely to play a role in Heller).
Personal feelings -- they can play a role in all of this. I suspect at a subsconscious level. You're apt to be enthusiastic about rights you personally value. They play a much bigger role when you get down to what is allowable regulation. How strict is the standard? That's entirely up in the air, with no hard rules. If it's the strictest standard, what is a "compelling" government interest, and does this properly address it? Hard to make that judgment without be affected by your underlying beliefs that gun control is generally nice, or generally stupid policy. If you're on the Court and a porn case comes up, it's going to be hard to decide whether this particular movie is OK or not without being affected by whether you feel porn is sociallly corrupting, or is harmless, and whether you're hard to shock anyway.
In law school, I took a con law course co-taught by Robert Bork, and he is a proponent of the "original understanding" school of thought, which I like very much - it seems to make sense to me.
One thing I don't agree with Bork is his interpretation of the 9th Amendment. He essentially says its true meaning is unknowable -he says it's as if the text of the 9th were covered by an inkblot and you can't read what it says. Rather than try to intepret what the Framers might have meant, we can't tell, so we shouldn't try to interpret it and read some meaning into it. I guess under "textualism," the 9th would be considered "hopelessly muddled."
I don't like that because there are words there and they have to have some meaning - even if, as some suggest, it was added simply to placate those who were fearful that the Bill of Rights would be construed as a canonical list of the rights retained by the people. The real tricky part is trying to figure out what those other "retained" rights are, that are in addition to and beyond those enumerated.
Posted by: Bill at June 25, 2008 12:00 PM
Unfortunately, the current court seems to have a significant number of justices who are willing to let personal feelings overrule all other rules of construction. A good illustration of this is Baze v. Rees (the lethal injection case). All the justices understood at the beginning that whether or not the death penalty itself was unconstitutional was not up for debate, yet in the end most of the seven different opinions addressed, either directly or indirectly, that very question. One (Stevens' concurrence, I think) basically boiled down to "Because we're not addressing the constitutionality of the death penalty itself, I concur. But here's why the death penalty is unconstitutional."
Posted by: Jake at June 25, 2008 01:07 PM
"Just as a background to Armageddon..."
Whoah, there Counselor, don't scare us like that!
Here's my "Armageddon" question: If the opinion comes down as favoring ONLY collective right, who gets to define Militia, and how would we stop the government from setting the definition in such a way as to preclude personal possession and maintenance of militia arms?
Posted by: Rivrdog at June 25, 2008 02:22 PM
Rivrdog, some people have predicted that if that happens, the meaning of militia, and what a militia can do, will be plain for all to see!
I don't agree, but there are many people who really think that.
Posted by: Jim at June 25, 2008 06:49 PM
Bork is not the brightest bulb on the tree. He testified before Congress that there is no right to privacy in the constitution, when the fourth amendment is the very definition of privacy.
I actually agreed with the conclusion he drew on the issue at hand, bit for different and defensible reasonsl. h
He shouldn't be allowed to teach and I am certainly glad he was "Borked" out of the SC nomination. To me Borked does not mean unfairly depicted, but justifiably shown to be an intellectual lightweight.
He says the words that sound like he thinks the constitution means what it says, until his personal preferences dictate otherwise. We already have enough of those.
Posted by: straightarrow at June 25, 2008 10:17 PM
Yes, I know what you mean, Straightarrow. I have read several of Bork's books and they are interesting and entertaining reads, but I do find myself disagreeing with his conclusions regarding the meaning of certain provisions of the Constitution. Mostly, as I said above, the 9th Amendment.
It was an enjoyable class, regardless. I do like the "original understanding" school of thought, though.
Posted by: Bill at June 26, 2008 07:51 AM