Textualism and District of Columbia v. Heller.

• Author: Volokh, Eugene
• Position: Texualism and the Role of Judges

The text of the Second Amendment has played a large role both in judicial debates about the Amendment and in public ones. The majority opinion and dissents in District of Columbia v. Heller (1) talk extensively about the constitutional text. Lower courts continue to talk about it. (2) The public talks about it, too. Indeed, Second Amendment textualism has been kept alive (while it was largely dormant in the courts and among scholars) by people who thought, "Well, we read the text, and we think it means something other than what many courts have said."

So let me talk a bit about some of the textual issues that came up in Heller and that have come up since. I don't want to focus on repeating the arguments in Heller--those of you who are interested have read Heller for yourselves. Rather, this Essay will address some of the things we mean when we say "textualism," and some of the ways in which good textualists must go beyond the text of the particular document being considered.

Right of the people: Let's begin with the text, the "right of the people." The Supreme Court looked closely at this phrase, (3) but, as with much text, the phrase is facially ambiguous. The Seventh Amendment, for example, talks about the right to trial in "Suits at common law." (4) When I talk about textualism and originalism, I sometimes ask people: what are the possible meanings of "common law"?

"Common law" could mean common law as opposed to statutes. It could mean common law in the sense of English law, as opposed to the continental European civil law. It could mean common law in the sense of the rules generally accepted in the late 1700s, as opposed to modern law. (5) Or "common law" could refer to the sorts of claims that were historically litigated in the common-law courts--because of the remedies sought, such as damages--as opposed to other claims (seeking remedies such as injunctions) that were litigated in equity courts, or still other claims that were litigated in admiralty courts. And it turns out that, even though lay people probably almost never think about common law as opposed to equity or admiralty, the Court has interpreted "Suits at common law" as referring to precisely this distinction.

The Court is likely correct, because that was probably the original meaning of the text. (6) To the extent that you're going to be a textualist, you ought to be an originalist. You may reject both originalism and textualism, but if you care about textualism, it's hard to say, "We're going to interpret that text because it was enacted into law by the Framers, but we are going to use modern meanings for words that the Framers never contemplated." That would be constitutional law by pun--a strange way of interpreting a legal provision. If you care about the text because that's what the Framers enacted, you rightly resolve the ambiguities in the text by considering what the text meant at the time it was made into law, rather than importing a modern, ahistorical understanding.

Likewise, the Court in Heller resolved the ambiguity by looking at original meaning, and in particular one important source of original meaning: the way the phrase was used in the rest of the document. (7) The Court recognized that "the people" could mean the people collectively, as in "we the People of the United States," the ones who ordained the Constitution, or it could mean the people in the sense of each person individually. And when "right of the people" is used in the First Amendment as to petitioning the government, in the Fourth Amendment as to searches and seizures, and in the Ninth Amendment as to retained rights (whatever those might be), it generally refers to an individual right. (8)

Now, the dissent disagreed, arguing that the Petition Clause right is actually a collective right. (9) I don't think that is correct; but, in any event, the important point is that, when we talk about the text, we should generally look at the whole text--not just...