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Monday, July 07, 2008

Stanley Fish, Heller, and Intentionalism

I'm sick of reading about Heller, but then again I'm not, which is probably why I read with interest Stanley Fish's take on Heller in the NY Times. In "What Did the Framers Have in Mind?", Fish observes, "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." In short, he notes that all of the justices, even Breyer with his "urban environment" dissent, agreed that their task was to ascertain the framers' intent; they just disagreed with what that intent was.

So here's my question, which I begin with a few assumptions.

First, let's assume that Scalia's interpretation of the 2nd Amendment is correct, and that as citizens we each have “an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

Second, let's assume (bear with me here, this is just an assumption) that enforcing the 2nd Amendment--assuming that it applies to the states as seems likely--will result in x (5? 10? 100? 1000?) more deaths per year (through gun violence, suicides, accidents) than would occur if the 2nd Amendment were not enforced, and unfettered state regulation of the use of firearms was permitted. Nina Totenberg on NPR, for example, recently did a segment in which mayors and police chiefs voiced their disagreement with the decision and predicted that the decision will result in a significant increase in gun violence.

Third, let's assume that in light of the foregoing, we conclude that the 2nd Amendment is stupid. Or to put it less bluntly, inconsistent with our contemporary concerns.

Question: Is the only option before us another amendment repealing or modifying the 2nd? Or do we accept the number of extra deaths as a cost outweighed by the benefit of gun ownership? In short, what's a conscientious judge/legislator/citizen to do if it's not the interpretation that's wrong, but the amendment itself?

Posted by Bennett Capers on July 7, 2008 at 11:34 AM | Permalink


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I think what you're getting at is do we need to go through Article V of the Constitution to change what it means. The answer is "yes." Otherwise (and I ask this in all seriousness) why do we have a written constitution?

Excellent point.

Posted by: Stephen M (Ethesis) | Jul 12, 2008 8:49:43 PM

I think what you're getting at is do we need to go through Article V of the Constitution to change what it means. The answer is "yes." Otherwise (and I ask this in all seriousness) why do we have a written constitution?

Posted by: anon | Jul 7, 2008 3:56:42 PM

This has been a curiosity of mine since the decision. Doesn't Heller present a unique situation in meeting strict scrutiny (or whatever level is ultimately determined to be the controlling doctrine on the Second Amendment)? DC ends its handgun ban. Violent crime and deaths either go up or they don't. Let's assume first that they do. Given a conclusive study showing that the change in DC's handgun law caused more deaths (maybe a fantasy, but let's assume it for now), wouldn't we have a narrowly tailored way of preventing those deaths (which is certainly a compelling government interest) - re-enact the handgun ban.

So, you could have gun control without getting rid of the Second Amendment. And here's the nice thing about it - if violent crime and deaths do not increase, then maybe we shouldn't care much after all about gun bans.

Posted by: David S. Cohen | Jul 7, 2008 2:33:09 PM

I agree with Justinian. I've presented the "intentionalism" argument before to friends, who've universally agreed that I'm a moron... If you think the justification for the 2d amendment is silly, that's fine... but it is still there... Personally, I'd vote against repealing the 2d amendment (as if I get a vote, but since I am neither a Congressman nor in a state legistlature, I do not), but that's irrelevant.

I'd be wary of any "study" that purports to correlate Heller with an increase or decrease in gun violence... Very few states/locales have gun bans as restrictive as DC's... and criminals do not care whether they have a constitutional right to carry a gun or not... all they care about is that they have a gun, and you do not ...

Posted by: PA | Jul 7, 2008 12:46:33 PM

I've always said that if we want gun control, the only legal way to get it is to modify the 2nd amendment.

Posted by: Justinian Lane | Jul 7, 2008 12:04:05 PM

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