Convictions: Slate's blog on legal issues

What the Heller? Is Only the Supreme Court's Liberty Enhanced?

Jack Balkin and Sandy Levinson are right to probe with hypothetical the dimensions of the newly-minted, or perhaps ancient, right of self-defense, or right to own handguns, in one's home, or maybe outside it, or maybe also to own other weaponry, or maybe not, so firmly established in District of Columbia v. Heller (2008) per those clarifying originalist sources understood by Justice Scalia 5-4.

The Candidates Debate -- well, maybe not

My question relates to this indeterminacy and the politics of discussing this case, and the ultimate effect on political and human liberty. Specifically, is the manifold uncertainty raised by the opinion (and its consequent unsettling of state and local law and disregard of federalism that we conservative types used to care about) going to be challenged (condemned) by John McCain as an invitation to legislate from the bench?  Critiqued by Barack Obama?  Or, as is more likely not to be talked about by either since McCain's complaints about judicial activism are as meaninglessly one-sided as most everyone else's, and Obama is just happy to not have the NRA energized in his direction - and who could blame him?

No Originalism Left Behind -- well, maybe not

As an under-interpreted provision in the Constitution, the Second Amendment provided an opportunity to test the integrity and utility of the original understanding method of interpretation.  It failed.   The language to be construed: "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."  Prior to the Heller, many thought that the second half of the text was to be construed in reference to its preamble.  Justice Scalia concludes instead that the first 13 words of the amendment are "a purpose," but not the purpose.   

It's only Natural (Law) to Disagree

Dean John Eastman (a first-rate originalist scholar and the co-editor of our casebook) and I have been batting about the originalist legitimacy of this move by Justice Scalia.  I'm skeptical given how the preoccupation with state and private militia by the founders as a counterpoint to government tyranny had fit both the history and the text.  It also fit structure as an answer to the threat of abuse of Congress' Article I militia organizing authority.  Dean Eastman believes Justice Scalia is informing the text with an appreciation of a natural law right of self-defense perhaps a la the thoughts of Professor Akhil Amar here on Slate some months back.

As for "the right of the people" language, both majority and dissent agreed that this suggests an individually enforceable right, but that tells us nothing about its scope -- specifically whether that scope must have a militia-nexus. Of course, sometimes text, history, context and structure are contradicted by longstanding precedent which, by reason of reliance, merits adherence. But here the interpretation in U.S. v. Miller in 1939 arguably saw the Second Amendment as militia-related, and it was a precedent followed by virtually every lower federal court since it had been decided.  Justice Scalia argues that Miller holds only that a short-barreled shotgun was not "ordinary military equipment" because it was not the type men bearing arms would be expected to bring when called to militia service, but so what?  How does that free the "right" from the militia nexus?   

The dissent saw the opinion as legislating from the bench.  Wrote Justice Stevens for the four dissenters quoting Miller, "the signification attributed to the term Militia appears from the debates in the convention, the history and legislation of colonies and states, and the writings of approved commentators.'"  In light of that, Justice Stevens concluded: "Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well regulated militia.  The court's announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations."

But can it be plausibly argued, as Dean Eastman and perhaps Akhil Amar suggest, that there is another view of originalism in play as well?  One which heretofore has been championed largely by Justice Thomas but to which Justice Scalia's opinion in Heller now appears to give credence.  That view holds, with substantial evidentiary basis in the founding-era debates, that the Bill of Rights merely recognizes (rather than creates) pre-existing natural rights.  I concede natural law originalism has always been my preferred view, but given Justice Scalia's past denunciations of it, is it plausible to see him now as among the converted?  He does make reference to 19^th century case law approving of the perspective.  In this regard, the Court makes several references to this "natural law" view of the Second Amendment right, concluding that the Second Amendment necessarily codifies its more expansive right to self-defense, against both private thugs and government tyrants. 

But assuming Justice Scalia is in fact now willing to judicially enforce the text of the Constitution only as informed by the natural law, how exactly does he know that the natural law includes a right to possess a handgun for self-defense?   As he himself might have been given to point out in other contexts, when the right was linked to "the militia," he could define it in relation to an historical purpose originally understood. If natural law is the new lodestar, then Justice Scalia needs a defensible conception of human nature.  And far from the right being new support for abortion as Jack hypothesizes, would not any serious conception of human nature contest, not affirm, that practice?  But staying with just born persons, isn't it possible to see more widespread handgun possession as contrary to any natural law basis for the "right" insofar as gun usage has its own inherent dangers or just simply in light of the number of handgun deaths each year in urban areas, including DC?

Go to Hell(er), Federalism!

Does the new gun right apply against the states?  Within a week of the ruling in Heller, five lawsuits were filed seeking to apply the newly designed Second Amendment to nullify gun control laws adopted by local governments in California and Illinois. Each of the cases makes the argument that the Second Amendment is applicable to the state and local governments through the Fourteenth Amendment - an issue the Supreme Court has not considered since 1894, when it said the Amendment applied only to the federal government.   In note 23 in Heller, the Court declined to reach the incorporation issue. 

The Chicago case, NRA, et al., v. City of Chicago, et al. challenges a restriction very much like the DC ban that had been invalidated - namely, a city code provision that requires registration of firearms, but bars registering handguns.  Chicago is within the Seventh Circuit which last found that the Second Amendment applied only to the federal government in 1982 relying upon the Presser v. Illinois (1894). The Circuit Court specifically declined to find that Presser had been superseded by the Fourteenth Amendment and its incorporation of most of the Bill of Rights.

Raising the Standard (of Review)

Beyond applicability to the states or not, the standard of review is uncertain for laws that differ from the District of Columbia handgun ban that was nullified. Justice Scalia seems to eliminate rational basis as an insufficient standard, but not much else.

Depending on the standard of review to be named later, it is supposed that we will learn the answers to the questions that bedevil us now, including why carrying a concealed weapon beyond the home and hearth is not protected and also why licensing laws do seem - so long as they are not disguised as prohibitions - not to offend the "right."  Similarly, we will know whether switchblades or mace or tazers are beyond "weapons typically possessed by law-abiding citizens for lawful purposes."

Come, Learn from the Master -- or Go Directly to Jail   

Finally, the ever dutiful citizenry will be instructed by its judicial masters as to how far, if at all, the right can be taken outside one's home?  The front stoop?  One's car parked at the curb?  The RV parked out back?  In the meantime, I suspect it won't be long before a law-abiding Dick Heller-type fella is charged by a local prosecutor for a crime because he used a gun or other weapon beyond the home, in claimed self-defense, only to find upon posting bond that he did not successfully discern the constitutionally acceptable geographic location.

My friend, Bob Levy at CATO brought this case to enhance human liberty.  As I see it, only judicial liberty is being advanced.  Indeed, to borrow some florid prose from the one-time author of the opinion itself:  "The Imperial Judiciary Lives!"  Don't expect it to be talked about in those terms by either of the candidates, however, who in one way or the other will have been silenced, well, at the point of a gun.

Hills of Beans

Roe, Heller, Politics, and Jack

Jack—You really should not be required to repeat yourself, and so I apoligize for making you go through it all again. But at last, I get it! It's not the justices who are acting strategically, only the presidents who appoints them. Once they appoint them, justices do as they do. Which is why Reagan appointed Kennedy—he knew he passed the reverse litmus test on Roe. The theory is working great. After all, a nonstratgegic Republican president would have appointed someone like Scalia. Or, even dumber, Bork!  Oh, wait ... OK, maybe Reagan's not such a strategic figure. It's not like Bush pere would have appointed someone who thinks Roe should be overruled, like, say, Clarence Thomas. Oh, wait, again ... 

It's a problem for a theory, I think, when neither of the actors in a position to act in accord with it (that is, the presidents or the justices) seem to be ... reliably acting in accord with it. And while the Roe right in some form thus far survives, some think that has more to do with the Senate refusing to do what the prez wanted (see Bork above) than with the prez faking everybody out. 

But why should we care about this debate? One reason might be that it would warn supporters of the Roe right from taking false comfort in the political-calculation theory's prediction that it will survive a long line of Republican administrations—just as it would encourage Roe's opponents to take heart! 

In short, it's my contention that elections matter more for constitutional development than, paradoxically, for the super-sophisticated theory of electoral-jurisprudence theory (with its assumption of canny presidents—and maybe even justices—always seeking out some clever equilibrium) indicates.  

Of Heller, Roe, and Politics

Guns and Slate

C'mon, Orin, you don't give us enough credit with your non-Volokh post. There are plenty of truck-ownin', tobacco-usin', gun-shootin' folks here at Slate. Admittedly, we're a bit of a discrete and insular minority within the Slate family, but I don't think your Heller discussions are unwelcome here.

I'm going through the opinion now, and one thing that leaped out at me was the limiting language that Justice Antonin Scalia chose to use in his opinion. He carves out two very important limitations on the Second Amendment right—so big that they encompass nearly all gun control in existence today, save those most extreme bans like that in DC:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. ... For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. ... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” [cites omitted]

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

So, if I understand this right, Scalia's got no beef with "felon in possession" statutes like those at the heart of the Justice Department's Project Safe Neighborhoods strategy. And he's got no beef with states banning assault rifles, machine guns, rocket-propelled grenades, and other instruments of violence that are firearms but may be just a tad bit dangerous for you or me to keep and bear. And I think Scalia's also cool with background checks, registration, and waiting periods  If I'm adding up the scorecard right, that means most federal, state, and local gun control in America survives Heller.

What do you think?

Non-Volokh

In case some readers here may have tried to visit the Volokh Conspiracy today, we're, um, having problems due to incoming traffic. The site is not letting any of us bloggers log in to post, so although we have a ton of posts we want to write about Heller, we can't actually log in. I may post some stuff here instead, although posting on a Second Amendment case here at Slate instead of at Volokh is kinda like talking about adjusting your carburetor in a Harvard Square bookstore instead of in a sports bar.

What?

On the Bright Side ...

Rock Creek Park?

Now, Rosa, before we get all indignant or sarcastic (and I certainly hope you were being sarcastic), let's not allow ourselves to fall prey to exaggerated readings of today's gun decision. For example, let's not overlook Pages 54-55 of the court's opinion:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. ... Although we do not undertake anexhaustive historical analysis today of the full scope of theSecond Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

There a lot to digest in these lengthy opinions. (And I certainly won't get through them anytime soon, at least not during working hours.) But to suggest that this case opens the door to hunting in Rock Creek Park is a bit like suggesting that Lawrence v. Texas legalized homosexual romps in Rock Creek Park. Let's all agree to take a few deep breaths before we go around the bend.

And besides, there are more important decision to attend to, like Morgan Stanley ...

Hooray, Now We Can Go Hunting

... in Rock Creek Park! At last! (See the Supreme Court's decision in District of Columbia v. Heller, striking down the D.C. ban on handguns.) When I bag my first D.C. deer with my handgun, I will send a shoulder of venison to Justice Scalia in grateful admiration. If I manage to take out any muggers—or bystanders caught in the crossfire—I will send him their carcasses as well.

Guns & the 14th amendment

Jack is right to point out that the privileges or immunities clause of the 14th amendment was indeed, as Senator Howard at the time explained, intended to incorporate Corfield's partial listing of natural rights as well as the Bill of Rights, including the Second Amendment, as against the States declaring the body of these rights to be the true deposit of U.S. citizenship.  Were the Slaughterhouse Cases and its misinterpretation of the privileges or immunities clause to be overturned, I concede that the people in the several states would no longer have an unfettered legislative ability under the 10th amendment "either to broadly protect individual rights of gun ownership or the opposite," at least insofar as "the opposite" -- that is, restriction would need to comport with the incorporated Second Amendment.  

It is not clear to me however how the 14th amendment is relevant to the scope of Congress's authority over the District of Columbia, or the District's power which it has by delegation.  As I mentioned in my earlier post, Congress is directly limited by the Second Amendment in terms of its regulation of the several states, but is it contended that there is a reverse incorporation of the 14th amendment privileges or immunities clause as against the Congress in its governance of the District of Columbia?  If that is what is being contended, more than Senator Howard's Corfield and Bill of Rights reference in the legislative history would be needed to establish that fact and what it means -- at least for me.  For now, as I see it, with or without the 14th amendment and the proper interpretation of the privileges or immunities clause, the District of Columbia may ban handguns or do something less.

As originally understood, the Second Amendment has nothing to say about the DC City Council's handgun ban

The oral argument, which of course is not a sure guide, suggests that a majority of the Court may be contemplating a ruling that will be incapable of withstanding examination under originalist methodology, and once again, expose the Court to the claim that it is a political body robed in law's clothing.  The Court should avoid this, especially in a political season.

An originalist interpretation, at a minimum, must give respect to the meaning of every word of the Second Amendment, including its preamble.  Second, the interpretation must situate the Second Amendment intra-textually within the context of the entire Constitution.  Third, an originalist interpretation must be honest about the possibility of obsolescence -- namely, that something is in the Constitution which may have no modern analog.  Fourth, to the extent it is consistent with the original understanding, precedent must be respected.

What do these principles suggest is the meaning of the Second Amendment?  Just this:

The Second Amendment reflects the concerns of the founders that the federal government might exercise its Article I militia power to subjugate the people by disarming local militias in the several states.  The Second Amendment was drafted to combat this particular fear, and therefore, the Second Amendment is no limitation whatsoever upon the authority of the people within the several states, by the power reserved to them under the 10th amendment, either to broadly protect individual rights of gun ownership or the opposite.

It may be interesting to speculate how the Second Amendment in its protection of the states limits the authority of the federal government under either Article I or the commerce power, but since there is no state in the litigation, as a matter of prudence and restraint, the Court should refrain from such speculation.  Since I'm not a court, however, and the Court may disregard the above understanding of the Second Amendment, let me briefly speculate for academic purposes on what Congress' authority is vis-à-vis the states. 

Were D.C. a state, which is not, Congress's ability to encroach upon the right of individuals to keep and bear arms for militia related purposes would necessarily be limited by the Second Amendment.  However, contrary to some of the speculation at the oral argument, there is no free standing right of self-defense codified in the Second Amendment, even as that may well have existed as a common law right at the time the Second Amendment was drafted and ratified.  However, insofar as those serving in a local militia within a state at the time of ratification would ordinarily be expected to possess weapons that could also be employed in self-defense, the interpretation of the words "keep and bear arms" would modernly support that right as well. 

This interpretation would be entirely consistent with the Supreme Court's prior ruling in Miller and the abundant circuit court precedent applying Miller that, with two recent exceptions, overwhelmingly construed the Second Amendment as protecting only militia-related arms as they might be employed by someone eligible for militia-related status.  Giving the broadest gloss on history, militia-related status at the time of the Second Amendment could have theoretically included all able-bodied men and women.

So what would that mean in this case for the DC handgun law, were that law enacted by Congress to restrict a state? First, it might be plausible to find this particular case to be non-justiciable if Mr. Heller is not militia eligible.  Assuming there is someone with standing in the case, a congressional ban on handguns, a commonly used weapon for militia service at the time of the Second Amendment, would be unconstitutional.   While such a handgun ban by Congress against the states might be argued to be within Congress' Article I militia authority as an aspect of "organizing, arming, and disciplining, the militia," which is a power expressly given to Congress limited only in the un-amended text by the power of the states to make the appointment of officers and the states' authority to follow the training regimen for the militia as prescribed by Congress, that argument would leave the Second Amendment without meaning.  It is here where the amendment was intended to be a limitation upon congressional power.  

So let me be clear: had the DC law been enacted by Congress and applied to a militia eligible individual within the several states, it would be unconstitutional.  But there is one further complication, and it cannot be overlooked.  Modernly, the Second Amendment may be no limitation upon federal authority so long as there is no analog to the founding generation militia in the several states (the National Guard not operating on a bring your own weapons basis).  The problem of constitutional obsolescence here is real and in an appropriate case could not be avoided. 

It is interesting to speculate about all this, but again, since none of it is before the Court in Heller -- Congress not having chosen to regulate individual rights within the states -- there is absolutely no reason for the Court to give an answer as to the constitutionality of the DC handgun ban had it been enacted by Congress as against the states.  Likewise, Solicitor General Clement will have to wait for another day to have the definitive assessment of what standard of review should apply to federal gun regulation as applied to the states. 

As to the authority of the Congress of the United States, including the derivative authority of the City Council of Washington, DC, to ban handguns or do something less, the Second Amendment is no limitation.  Congress is free to empower or revoke the DC City Council's authority as it sees fit on this subject.  Since Congress has not revoked the power of the DC City Council to legislate upon this issue, Washington, DC is free to ban handguns generally. 

Given the vibrant empirical debate over whether the possession of handguns within the home deters violent crime, this fortuitously allows Washington, DC to be a genuine case study, thereby contributing in its own way, to the laboratory value of federalism.  

By the way, two of the nation's most preeminent champions of both federalism and individual liberty, Bob Levy and Chip Mellor, have contributed a different individual rights view of the Second Amendment at least as it applies to the District of Columbia in their new book, The Dirty Dozen, which I recommend not just for an opposing point of view, but also for its splendid writing including the untold back story of how the Miller case was argued only by one side.

Hypocrisy Without Hypocrites

Eugene Volokh takes Dahlia Lithwick to task for accusing Republican Supreme Court justices of hypocrisy when in fact they are merely applying their ("conservative") judicial philosophies in a consistent manner.  Dahlia thinks that conservatives believe that courts should leave policy to legislatures, respect precedent, and refrain from inventing constitutional rights, and that the Republican Supreme Court justices do none of these things.  Heller might not be the best case for her argument, especially because it has not yet been decided; but if it is decided as everyone expects it will be (namely, conservatives on one side, liberals on the other), it is not the worst example that she could have come up with.  (She says similar unflattering things about the liberals on the Court.)

The problem, as Volokh points out, is that it is hard to show that any of the existing Supreme Court justices are being hypocritical.  They have their particular judicial philosophies, and are arguably acting consistently with them.  Dahlia's hypocrisy charge will nevertheless ring true for some people.  Correctly read, I think, she is not so much accusing any particular justice of hypocrisy; rather, she is accusing a composite of conservatives of hypocrisy--those conservatives who argued, back when liberals ran the Supreme Court, that justices should try to avoid striking down statutes, and who now, with a conservative court doing the same thing, are egging it on.

Conservative thinking about courts has changed.  At one time, conservatives criticized the Court for aggressively striking down laws; now conservatives seem less concerned about this behavior.  (I am simplifying: there are exceptions in both groups.)  Because the time-one conservatives said the Court was doing politics, and the time-two conservatives deny that they have a political agenda for the courts, something, vaguely, seems hypocritical.  (A mirror-image argument is being made about liberals who have begun arguing for judicial restraint.)  But no particular individual is necessarily hypocritical.  The first group has faded into the background, and the second group has come to the forefront.  With the change in the personnel of the courts, there is more political demand for the ideas of the second group than for the ideas of the first.  No individual is hypocritical, but if you thought of the "conservative movement" as a living, breathing person, then you could accuse that person of hypocrisy.  Unfortunately, there is no such composite person.  Dahlia commits the "fallacy of division," attributing to the members of a group motives that would better describe the group as a whole, with the added twist that the group is inappropriately anthropomorphized.

One can see the problem more clearly by focusing on how people are chosen for the Court.  Presidents want to appoint Supreme Court justices who will decide cases consistently with the presidents' political agendas, but they can't very well ask their appointees to do politics.  The solution is to find and appoint people who sincerely hold judicial philosophies that are likely to generate the political outcomes that the president values.  It isn't fair to call these appointees hypocrites; they are sincere (as far as we can tell).  Nor does it seem fair to call the presidents hypocrites, though they are less than straightforward when they claim that they care about the judicial philosophies rather than the politics of appointees (they care about the former because they care about the latter).  Politicians do politics, so it would be strange to call them hypocrites for advancing their political agendas in the courts.  So voila, we have a hypocritical institution--the Supreme Court, which claims to do law, and not to do politics, but does both--even though it may well be composed of, and by, people who are not hypocritical at all.  How do we know that the Supreme Court is hypocritical?  Because it holds itself out as an impartial institution that decides the law only, but makes decisions that a twelve-year old could tie to the politics of its members--as Heller seems to make (or will make) painfully clear.

You can call an institution hypocritical until you're blue in its face, but it's not going to change its behavior.  It's just an abstraction, after all.  The question is whether one can live with the institution as it is, or can figure out some way to make it better.  Calling the justices hypocrites won't work because they are not hypocrites.  Telling them--or at least a wavering swing vote--that they risk damaging the reputation of that institution, and hence their means for exerting influence, might.

Guest poster Richard Schragger on externalist versus internalist views of the Constitution

Richard Schragger is another Slate contributor who teaches at UVA law school. He sent in this email in an effort to clarify where you and I differ Jack.

In his post concerning the “living Constitution” Jack takes Dahlia to task for her naiveté – how can a “living constitutionalist” believe that constitutional law-making is anything other than a mixture of constitutional law and constitutional politics (with the latter more dominant than the former)? This explosion of the law/politics divide is too all-encompassing—and it doesn’t give us much traction on the important question—which is: What does the Constitution require? Jack offers an externalist perspective on constitutional change and calls it the "living constitution" -- but what he is offering is a description of how political/historical forces shape courts and other institutions of government – an account that may or may not be accurate but is, in any case, not what lots of opponents of originalism mean when they speak of the “living constitution.”  Jack’s description also doesn't answer the question of whether the Court is actually engaged in making law.  What I think Dahlia cares about (or, more accurately, what I care about) is the Court from an internalist perspective: We think that the Constitution is law, that law has content, and that legal doctrine has to be justified by an actual theory or account of the Constitution, the rights it contains, and how those rights apply through time. 

Guest poster James Ryan on the influence of social movements on the courts

I’ve been getting lots of interesting emails about my conversation with Jack about the proper role of social moments in constitutional courts so I thought I’d share some of the best. James Ryan teaches at the University of Virginia and has written for Slate. He writes:

I wonder if what really bothers you is the difference between well-heeled interest groups, who should be able to do just fine in the legislature, versus social groups that are traditionally disadvantaged in the legislative process. Seems like you could accept that social groups can and should help shape the Court's agenda but believe, ala Ely and political process theory, that there's no reason for the Court to overturn the legislative process when it disadvantages social groups that can and often do just fine in the legislative arena, as in the NRA. The Court might want to take a closer look when groups that are routinely disadvantaged ask for their help.  E.g., you can make the argument that the Court should pay more attention to the NAACP than the NRA. 

I like my living constituion medium rare

Jack, thanks for your thoughtful post on the drawbacks of living constitutionalism. I don’t imagine you really believe that the version of living constitutionalism you’ve unspooled -- if it’s living constitutionalism at all – is one I’d embrace. That’s judicial tyranny. My objection in Heller was not to “political and social movement guided constitutional development” but to political and social movement ­dominated constitutional development as the courts snoozed. I don’t imagine anyone genuinely believes the courts could or would ignore political forces.

I’m actually rather fond of the unwashed masses. But what I didn’t see happening in Heller was the kind of serious constitutional conversation between the unwashed and the courts that we both favor. What I did see was the individual right to bear arms “arise full blown” from the head of Chief Justice John Roberts.

It’s not clear to me that we differ about “living constitutionalism” at all. Both originalists and living constitutionalists can embrace judicial restraint. I simply think the constitution has real meaning, and that courts play a role beyond merely carrying water for special interest groups social forces. That’s why I am most looking forward to your answer to the question Eric and I posed earlier this week. If it’s really all just politics, why do we need constitutional courts at all?

Cheney is Not a JAG

I'm not inclined to defend Cheney's freelancing in Heller, but I do think David's being a little too facile when he says in this post that "the next time a unitarian tells you the JAGs in the military, civil rights lawyers in Justice, or scientists throughout the government have no right to assert their independence, remember-they're only following Cheney's lead."

The argument for the executive's tolerating a certain measure of independent action from each of the groups David names is different, and in all of these cases, the argument is totally different from the unique case of the office of the Vice President. We expect a measure of independence from the JAGs in order to protect their ability to represent clients in the context of a justice system that exists within an executive department. We expect government scientists to be insulated from politics because scientific truths are not supposed to change with party control over the executive branch. Civil Rights Division lawyers in the Justice Department, by contrast, are not and should not be independent of their agency's positions; as lawyers representing the United States, they are arms of it. Each of these cases represents a different weighing of the relative benefits of unity versus diversity in viewpoint, the executive's ability to formulate and promulgate its policies versus its interest in preserving such goods as the right to trial or free scientific inquiry. In none of these cases is independent action by lower executive officials built into the constitutional design.

The vice president, by contrast, has a measure of independence for a unique reason: Because the Constitution makes him at once president of the Senate and first in line to the presidency-both a creature of the administration and a sometimes-meaningful part of the legislature. In Cheney's case, the vice president is also perhaps the president's closest aide and the strongest voice within his administration for a unitarian conception of the executive. These facts make his involvement in Heller hypocritical, as David suggests, but they do not alter the reality that he-unlike almost all other executive branch officials-legitimately wears more than one hat. His ability to switch hats is a function of the same constitutional design as the unitary executive he belligerently champions.

An unoriginal thought about Heller

Musing on the oral argument in Heller, which I just found time to digest (check out the read-along-picture-book-like function at Oyez.org):

Anyone else struck by the oddity of an originalist focus with regard to the existence vel non of an individual right, followed by a 20th century fast-forward with regard to application?  On the 1st point, nearly all (though not all) Justices spent the 1st third of the argument plumbing what words in the 2d Amendment used to mean, as far back as 1689.  Then, at p. 40, Justice Antonin Scalia:  "And yet we've never held that simply because it was pre-existing and that there were some regulations upon it, that we would not use strict scrutiny.  We certainly apply it to freedom of speech."  Litigants and Justices alike -- with the notable exception of Chief Justice John G. Roberts, Jr. (p. 44) -- seemed to accept that some "level of scrutiny" applied.

No great thoughts here about what the Court ought to do, but was struck by this juxtaposition in 1 case of discourse from 2 eras.

More on Heller and Roe

Does this story sound plausible?  Economists will recognize it as an agency-cost theory: the agent (the leader or leaders) and the principals (the members) have divergent interests.  Both want to achieve X but the agent also wants to keep his job.  If group members cannot adequately monitor his actions, the agent will take steps that best satisfy both his ends, which means working toward X but not actually achieving it.  Because the group cannot distinguish between honestly working toward X and deceitfully taking baby steps, they cannot discipline the leader for his bad behavior.

The story underlies Jack's claim that the leaders of the Republican Party don't really want the Supreme Court to overturn Roe, because once that happens, they will be out of the job.  They have been working toward X for 35 years now, but they will make sure never to achieve the goal, apparently by ensuring that people willing to overturn Roe are not appointed to the Supreme Court.  David tries to refute this argument by adopting its logic to gun rights.  The Republican Party also seeks to secure guns rights.  If it succeeds, then it will fall apart.  Yet the Supreme Court justices seem inclined to deliver success.  This must mean that Jack's logic is faulty, the leaders of the Republican Party actually do want to overturn Roe, and hence Roe will be overturned.  Jack responds by denying David's implicit premise that establishing gun rights serves the Republican coalition in the same way that overturning Roe does.

Jack's theory can be attacked more directly.  The agency theory assumes an information asymmetry between leaders and members: the members cannot monitor the leaders' behavior.  In many settings, such an assumption is reasonable, but here it is not.  It is perfectly clear what the Republican Party leadership is, and is not, doing to undermine Roe.  That they have not put all their resources into this task is consistent with an innocent explanation: they have to please all members of their coalition and these people care about things other than (or in addition to) overturning Roe.  If Bush had put all his political capital (when he had political capital) into appointing clearly anti-Roe jurists to the Supreme Court, he would not have been able to use it to obtain other things that he and other Republicans care about (tax reductions, etc.).

The theory also makes too much of the difference between overturning Roe and chipping away at it.  Members of the Republican coalition are not so much concerned about Roe as about reducing the number of abortions.  They also care about other things.  So as the Roe precedent becomes weaker, it will become easier to restrict abortion, and therefore people opposed to abortion will feel decreasingly concerned about that issue and correspondingly more concerned about the other issues that they care about.  If Jack's theory is right, then the leaders of the Republican Party can't merely preserve Roe as a hollowed out shell; they must ensure that, in fact, little progress is made in restricting abortion as a practical matter.  In other words, they maintain their leadership by accomplishing very little for their followers, all the while arguing that they are doing their best.  Not a plausible recipe for political success.

What's Fundamental About a Fundamental Right?

[Deborah Pearlstein] Can't wait to read the Obama posts, but first thanks to Jack for the interesting post about the nature of constitutional rights, fundamental and otherwise. Nonetheless, I confess it didn't quite overcome my lingering sense of puzzlement about where the Second Amendment fits in the constitutional hierarchy.  To start I'll need some help understanding the evidentiary weight I should accord Senator Howard's remarks about the Fourteenth Amendment to our understanding of the meaning of Second.  But I've always been inclined to support a relatively eclectic methodology of constitutional interpretation (i.e. start with the text and if that doesn't settle everything, at least consider other sources that might plausibly shed light) so I won't quibble much in a non-litigation setting. 

There's also, however, the problem that the Supreme Court seems rather early and often to have disagreed with the Senator's take on what "privileges and immunities" under the Fourteenth Amendment includes. Now I'm hardly a supporter of the Slaughterhouse view of matters, but surely (harking back to our living constitution dilemma) such precedent counts for something, even in a post-Roberts world. 

And then there's the logic puzzle.  As I read Howard, he says whatever "privileges and immunities" means, it includes "fundamental rights" (per Corfield) plus the first 8 amendments of the Constitution (i.e. "to these should be added the personal rights guaranteed...").  While he later suggests it's all "fundamental" in some sense, his initial cut could at least be read as distinguishing all the good stuff we know about in the Bill of Rights from other rights, deemed fundamental, not necessarily enumerated in the first 8 tries.  His views as in support of living constitutionalism I'd buy.  But that Howard sheds any light on the jurisprudential distinction between rights "fundamental" and not, I don't quite see it. 

Which brings us back to the original question - how do we know a fundamental right when we see it?  Or, how do we know the Second Amendment fits the bill?  Inclusion in the Bill of Rights per se, and perhaps strangely enough, hasn't actually seemed sufficient.  Indeed, given the highly contextual availability of those rights (even the great First Amendment), someone new to Supreme Court case law might reasonably conclude that a right is more likely to be found fundamental if it's only claim to textual fame is the "substantive due process" clause (so to speak).  The grand jury is apparently not implicit in the concept of ordered liberty; bodily integrity is.  Now it could be that I've just been making this more complicated than necessary, and calling a right "fundamental" is just a way of getting it treated like a right we would've included in the Bill of Rights but for those pesky word limits.  I'd be delighted for clarification.  For now, though, I guess count me as unconvinced of the fundamental status of the right as Mr. Heller sees it.