DISTRICT OF COLUMBIA, ET AL., PETITIONERS v.
DICK ANTHONY HELLER
The Second Amendment provides: 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. In interpreting this text, we are guided by the principle that [t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning. United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.
--Heller v. D. C., Majority Opinion, authored by Judge Activist Antonin Scalia
At the time the Second Amendment was made, there was well established common law governing the interpretation of legal instruments. There is an abundance of evidence that the lawmakers assumed the well established common law rules of construction would be used to ascertain the meaning of the words of the Constitution and Bill of Rights. It was well established common law in the late 1780's, that,
THE fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. Let us take a short view of them all.
1. Words are generally to be understood in their usual and most known signification; not fo much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorfl, which forbade a layman to lay hands on a priest, was adjudged to extend to him, who had hurt a priest with a weapon. Again; terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of settlement, where the crown of England is limited to the princess Sophia, and the heirs of her body, being protestants, it becomes necessary to call in the assistance of lawyers, to ascertain the precise idea of the words heirs of her body; which in a legal sense comprise only certain of her lineal descendants. Lastly, where words are clearly repugnant in two laws, the later law takes place of the elder: leges pofteriores priores contraries abrogant is a maxim of univerfal law, as ell as of our own conftitutions. And accordingly it was laid down by a law of the twelve tables at Rome, quod populus poftremum juffit, id jus ratum efto.
Inst. 1. 2. 6.
L. of N. and N. 5. 12. 3.
2. IF words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the fame legislator, that have some affinity with the subject, or that expressly relate to the same point. Thus, when the law of England declares murder to be felony without benefit of clergy, we must retort to the fame law of England to learn what the benefit of clergy is: and, when the common law censures simoniacal contracts, it affords great light to the subject to consider what the canon law has adjudged to be simony.
3. AS to the subject matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. Thus, when a law of our Edward III. forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victual; but when we confider that the statute was made to repress the usurpations of the papal fee, and that the nominations to vacant benefices by the pope were called provisions, we shall see that the restraint is intended to be laid upon such provisions only.
4. AS to the effects and consequence, the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf m, which enacted that whoever drew blood in the streets should be punished with the utmost severity, was held after long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.
l. 5. c. 12. §. 8.
5. BUT, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the laws itself ought likewise to cease with it. An instance of this is given in a cafe put by Cicero,or whoever was the author of the rhetorical treatise inscribed to Herennius. There was a law, that those who in a storm forsook the ship should forfeit all property therein; and the ship and lading should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who by reason of his disease was unable to get out and escape. By chance the ship came safe to port. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel: but this is a merit, which he could never pretend to, who neither staid in the ship upon that account, nor contributed any thing to it's preservation.
--Sir William Blackstone's Commentaries on the Law of England.
If the Supreme Court wants to ascertain the will of the lawmakers at the time they made the Second Amendment, the Court should follow the rules of construction the lawmakers probably intended for the Court to use.
PS: The
"normal and ordinary" meaning of the word "arms" in the late 1780's was, "human upper limbs; especially the part between the shoulder and the wrist."
