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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 19th 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.
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Yesterday, in Giles v. California, Justice Scalia, true to the originalist method, kept to the text of the Constitution and enforced the Confrontation Clause for the benefit of a criminal defendant complaining that his conviction was wrongful because he did not have the ability to cross-examine the out of court testimony of his girl-friend about the defendant's pattern of violent abuse by reason of the fact that, well, he killed her.
Powerful concerns about domestic violence argued to let the testimony into court in Giles, but the Justice held fast even as he was sympathetic to the need to address domestic abuse. The words of the Constitution matter, he said in Giles, and "It is not the role of courts to extrapolate from the words of the Sixth Amendment to the values behind it, and then to enforce its guarantees only to the extent they serve (in the courts' views) those underlying values. The Sixth Amendment seeks fairness indeed -- but seeks it through very specific means (one of which is confrontation) that were the trial rights of Englishmen."
Giles is hard to explain to the average citizen, but it's principled.
Today, Justice Scalia takes the Second Amendment which so unmistakeably by text and context -- not to mention legions of lower court precedent -- protects the right of the people in the States to maintain a well-regulated militia, as against the threat of tyranny represented by a standing army and Congress' Article I power over militias, and by various linguistic tortures, switches round the phraseology until the Amendment advances the contemporary interest of those citizens who favor possessing arms for self-defense within the home. As a matter of human liberty, the right found by Justice Scalia may well advance the values lying behind the words of the Constitution in 2008, they just aren't the Constitution as it was originally understood.
More than once, I have enjoyed the lectures of the erudite and witty Justice Scalia on the importance and legitimacy of original understanding and fidelity thereto. I just hope Justice Stevens is up to carrying on the lecture tour.
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While deducing from the calendar who is likely to write an opinion from any given sitting is a matter of considerable speculation, there is reason to believe that Justice Scalia may be writing D.C. v. Heller. Should that prove to be true, it is worth recalling Justice Scalia's own definition of originalism, and his particular "originalist" understanding of the Second Amendment, at the time of the oral argument?
First, the general theory:
"The theory of originalism," explains Justice Scalia, "treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. ... I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words."
Next, the particular:
Observed Justice Scalia, at the oral argument, "I don't see how there's any, any contradiction between reading the second clause as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State-managed. But why isn't it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people's weapons—that was the way militias were destroyed. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.
"[Without the Second Amendment] so long as it was up to the Federal Government to regulate the militia and to assure that they were armed, the Federal Government could disband the State militias."
What does this mean for Heller? At the very least, if originalism matters, it should mean that the gun-possession right—whether thought to be individually held or collectively held—is at the very least militia-related. Because:
1. As understood at the time of ratification, the purpose and meaning of the Second Amendment was as a federalist check upon the feared abuse of Congress' Article I militia power as well as the historical risks associated with a standing army. The Second Amendment—like the original understanding of the Establishment Clause in the First Amendment, and the unenumerated rights retained by the Ninth, or the power reserved in the Tenth—is as a protection of the state, or the people within a state, as against the federal government. The Second Amendment has no application to the laws and ordinances of the District of Columbia, which are promulgated pursuant to the plenary power of Congress as delegated to the District.
2. Were the District a state, the Second Amendment would limit the ability of the federal Congress to interfere with the right described therein. What the scope of that right may be is not before the court, however, in this case. While, as indicated, militias at the time of the ratification of the Second Amendment were not all state-managed or -directed, all existing militias nevertheless did depend upon militia-eligible individuals possessing weapons in their homes that would then be made available for purpose of militia service.
3. Besides not residing in a state, Mr. Heller is beyond the militia-eligible age as it was understood at the time of ratification, and so he lacks standing to raise a claim in which the court is called upon to define the scope of the Second Amendment.
4. The court also should not address the question prematurely because the claim presents a difficult issue of constitutional obsolescence. There is no modern equivalent to the state or other militias that existed at the time of the founding where it was either required, or at least expected, that an individual would bring a personal weapon for use during militia service.
5. The court should if possible write consistently with the court's prior decision in Miller and the overwhelming body of case precedent that has assessed the Second Amendment right in terms of whether a militia-eligible person was asserting a right with respect to a class of weapons that would be useful or reasonably expected to be supplied by an individual for militia service.
6. The opinion should also be written consistently with Justice Scalia's longstanding admonition that where the court is called upon to enforce implied rights, or describe the contours of a right inferred from the more general or ambiguous language of constitutional text, that it be stated at the most specific level of generality. Said Scalia: "We must always start from the proposition that "the asserted liberty interest [must] be rooted in history and tradition," and then assess a claim from "the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified."
Will this judicially restrained result actually be the opinion? Consider one last colloquy:
JUSTICE BREYER [to Heller's lawyer, Alan Gura]: But does that make it unreasonable for a city with a very high crime rate, assuming that the objective is what the military people say, to keep us ready for the draft, if necessary, is it unreasonable for a city with that high crime rate to say no handguns here?
JUSTICE SCALIA [to Heller's lawyer]: You want to say "yes." That's your answer.
This is clever oral argument banter, but, of course, unless history is rewritten, the founders cannot be supposed to have justified individual gun possession in support for draft-readiness for a draft that would not exist until the Civil War. And since the historical justification for gun possession bears no relevance to any modern analogue of the actual founding justification (the support of a "well-regulated militia") that cannot really be Justice Scalia's answer, can it?
Why?
Again, let Justice Scalia speak in his own voice: "Originalism does not aggravate the principal weakness of the system, for it establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself. Scalia, 57 U. Cin. L. Rev. 849, 864 (.1989).
That's all the American people ask for Heller, a judicial result and an opinion faithful to text and history that is "conceptually quite separate from the preferences of the judge himself."
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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.
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The Supreme Court is cogitating over the meaning of the Second Amendment. I have previously suggested that it might wish to research and draft the opinion first before voting. It is an important case not just for the scope of a largely under-interpreted provision, but also for the legitimacy of the Court.
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.
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Jack's got it right when he writes: "
In short, consultation of foreign or international sources will not inevitably nudge interpretation of a constitutional term to the left or to the right -- any more than would consultation of historical context or contemporary legal practice in the United States. That fact counsels shifting away from blanket condemnation of foreign consultation, and toward demands that it be conducted with no less methodological rigor than is expected in historical exegeses and 50-state surveys.
* Here's Mr. Dooley on interpretation: "I niver r-read th‘ constitootion an I niver seen anny wan that r-read
it, but it must be all right, for an’ because ‘twas made wan hundherd
years ago or more be min that is now dead an’ in their graves. ... Could thim pathriots do wrong? Did they know what was best f’r
us afther fightin’ f’r our liberties? I should smoke a ham."
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(Cross posted at Balkinization)
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Over at Obsidian Wings, my friend Publius [not his real name -- a.w.] suggests that states should enjoy flexibility under the Second Amendment to calibrate gun-control regulations in light of the varying needs of different cities and towns:
If your world is 18th century Massachusetts, then broad gun rights make a lot of sense. If your world is a densely-populated housing project in the Bronx, then broad gun rights make much less sense. Indeed, they create very dangerous environments. And if your world is rural Montana, then the policy rationale shifts back the other way.
Publius seems to get the analysis precisely backward: If "my world" is a housing project in the Bronx, then I'd face a greater need to carry a gun, for self-defense. By contrast, if I lived in rural Montana, then my need for easier access to guns would be much, much lower.
That said, maybe Publius is on to something. Maybe the courts should take more care to calibrate constitutional rights in light of the facts on the ground in differing locales. If we're going that route, then I'd recommend that we start with the Fourth Amendment's protection against "unreasonable" searches and seizures, giving police officers greater discretion in searching persons, homes, and automobiles without a warrant in high-crime urban areas, and further limiting their discretion to conduct warrantless searches in low-crime suburbs.
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So here's where I think our arguments are passing in the ether, Jack. First, I've always understood there to be an at least doctrinal (perish the thought) distinction between "fundamental rights" and "everything in the Bill of Rights." (So when, for example, we studied in law school why a state law forcing the sterilization of certain people was constitutionally problematic, it mattered in the court's decision to apply strict scrutiny that in particular "[m]arriage and procreation are fundamental to the very existence and survival of the race.")
I take you in recent posts to be arguing there's no daylight between rights fundamental and any right in Amendments 1 through 8 (i.e. that "fundamental rights" include at a minimum everything in the Bill of Rights). Among other things, then, I'm stuck with how to understand things like the grand jury right, on which the states have gotten a constitutional pass. Guess that falls into the Balkin given-a-chance-I'd-reverse bucket.
Second, I wasn't arguing that strict scrutiny should apply to regulations of Second Amendment rights, or indeed that strict scrutiny is what applies to everything in the first 10 amendments. Just the opposite (as I'd hoped was made clear when I noted, for example, "the highly contextual availability of those rights (even the great First Amendment)..."). I was arguing that applying strict scrutiny (or something thereabouts) seemed like the necessary implication of your argument that the right to carry a handgun is "fundamental." Because you apparently think Amendments 1-8 or 9 are all "fundamental," I can see why you wouldn't think that the necessary implication at all. Glad to have the record straight.
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Douglas W. Kmiec
Professor Posner is right that -- by originalist lights -- the argument for gun rights belongs in the legislature, not the Court. Nothing said in the Heller oral argument persuasively demonstrated that the Second Amendment as originally understood protects an individual right of self-defense. The Court may decide to the contrary, but it will be doing something other than originalism, as Justice Scalia has practiced it. That said, a right of self-defense, especially in one's home, existed at common law as confirmed by the 1744 case of Mallock v. Eastly (87 Eng. Rep. 1370, 1374, 7 Mod. Rep. 482 (C.P. 1744) [viewing the issue as “settled and determined” that “a man may keep a gun for the defence of his house and family . . .”]; and the common law being merely the natural law applied, as the late Edward Corwin elegantly pointed out, there is a natural right of self-preservation. Professor Posner is mistaken to understand natural law as also supporting a right to disarm to secure public safety. Whether or not disarming the general public is a good idea is at most a derivative policy choice of the right of self-preservation, not the right itself. The Second Amendment was designed "to assure the continuation and render possible the effectiveness of” the Militia." In 1939, Miller treated this as the purpose guiding its construction. (Miller, 307 U.S. at 178.). Why Justice Kennedy thinks this “deficient” is unexplained by anything other than the fear of announcing to a portion of the general public that the NRA mailings they have received over the years have been overstated unless originalism includes the natural law of the Declaration of Independence which is the same natural law of the Ninth and Fourteenth Amendments so well explicated by my Pepperdine colleague Akhil Reed Amar.
A construction of the Second Amendment which assures the existence of militias by guaranteeing the private right to keep and bear arms is entirely consistent with Miller and the language and history of the Second Amendment, but for it to have any application in Heller, it would require someone in a state militia to assert it, and the existence of a militia that, as I have said in a previous post, is BYOG. Mr. Heller is neither in a self-arming militia nor in a state, and the Court has no business deciding this case without seriously accepting the premises of natural law originalism which as far as anyone can tell only resonates in the silence of Justice Thomas’ mind, and perhaps, not even there.
Maybe if the Court would write out its thinking first, before voting on it, it would grasp that it is error to make the Second Amendment into something it is not.
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Stopping the Justices from voting before they know the answer –
A proposal for reversing the internal operations of the Supreme Court of the United States.
Douglas W. Kmiec
Heller has already been identified as a test of the fidelity to precedent and restraint of the Roberts Court. That following oral argument, it seems possible if not likely that the Justices will disregard or minimize the significance of the militia clause of the Second Amendment and decide that there is a right of self defense that nowhere exists in the present text of the Constitution presents a unique challenge to that reputation. Putting aside whether that is or is not a defensible constitutional outcome, it is institutionally important for the outcome to be arrived at by means other than mere assertion.
When the Justices assemble around the table in the Chief’s outer office to decide D.C. v. Heller, they will follow the usual practice of voting on the outcome first and only then researching to justify and explain the outcome. With due respect to the Court’s tradition, that methodology is backwards. It is also subversive of public confidence in the Court. In a difficult case, like Heller, where the historical materials, linguistic analysis, and constitutional considerations are plentiful and largely being examined conscientiously for the first time, it is all the more important for the Court to follow the scientific method of doing the research and writing first before deliberation and vote. Reversing the process would have the benefit of: avoiding the appearance of elevating politics over law by actually avoiding the temptation to substitute politics for law. By engaging in the difficult work of legal research and analysis of existing text, history, and precedent before any of the members of the Court are asked to reach an ultimate determination, the Court can increase the odds of writing coherently and with greater unity. Those witnessing this morning's oral argument know that task will be difficult. The analytical strands and possibilities from the meaning of the English Bill of Rights of 1689 to Mr. Madison's expectations of draftsmanship to the deficiency (or not) of precedent, to the nature of trigger locks require Herculean effort to assemble into a proper answer. If they were fully candid, I venture the Justices would concede that at this moment they possess at best a tentative conclusion. Why vote before a fulsome examination of the law by reference to a complete exposition of what one member of the Court would offer as the most honest and defensible constitutional judgment. No one would buy a common appliance not knowing if it could be constructed to perform its intended task. Why ask Justices to accept opinions that have yet to be fully formed?
Who would write the opinion if a preliminary vote were not taken first for purposes of assignment? Quite simply, the Justice next in line for a writing assignment who is fully up to date with his or her work. Once and for all, the residual politics of confirmation would be set aside and only Court administration would govern. Yes, this would deprive either the Chief Justice or the senior associate justice, most often, John Paul Stevens, of the right of assignment, but that deprivation would be in pursuit of a higher order good to which I venture both the Chief Justice and Justice Stevens would subscribe: the elevation of the rule of law and the strengthening of the respect for the Court as an institution.
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Akhil Amar’s analysis of Heller is unlikely to persuade any justices doctrinally, but it captures the cultural point that will decide this case.
According to Amar, the Second Amendment had to do with militias, so it doesn’t create an individual right. However, he doesn’t think that ends the question. The Ninth Amendment states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, the Constitution’s list of rights is not exhaustive, which is to say that there are unenumerated rights. Sidebar: I’ve always wondered why progressives don’t make more use of the Ninth Amendment. Yes, it proves too much, but it’s at least a helpful textual reminder that text isn’t everything.
I nonetheless doubt any of the justices will go for Amar’s approach. Justices detect (or invent) unenumerated rights as a last resort. Justice Peckham finds the freedom to contract in Lochner in the due process clause because he can’t find it anywhere else (precedent having gotten in the way of him using the Contracts Clause). Poor Justice Douglas comes up with his penumbra theory in Griswold to escape the charge of Lochner-izing. And yes, Amar's hero Justice Harlan probably deserves our respect for baldly stating that there are unenumerated rights. But we should sympathize with the fact that justices—then or now—are not lightly going to cast aside their best shield against the countermajoritarian difficulty—the text of a supermajoritarian document.
Unlike the word privacy, the word arms does occur in that document. Better still for those with who fear the great silences of the Constitution, contrary interpretations of that text can pass the laugh test. The amendment consists of a prefatory clause, “A well regulated Militia, being necessary to the security of a free State,” followed by an operative clause, “the right of the people to keep and bear Arms, shall not be infringed.” The collectivist argues the prefatory clause limits the scope of the operative one. The individualist says the former provides a sufficient, but necessary, ground for the latter. This is not to say Amar is wrong (always a dangerous thing to do). But he’s not so right that he can stop fish from swimming, birds from flying, or textualists from parsing.
While I doubt a single Justice will be swayed by the Ninth (or 14th) Amendment arguments Amar makes, I think the analysis suggested by Justice Harlan holds the key to this case. Using Harlan’s approach, Amar correctly argues, would direct us to “the actual pattern of lived rights in America—what the people have, in fact, done.” This is a question of constitutional culture. It would have to be, if Harlan’s approach were not to be hopelessly open-ended.
Because the swing justices have enough textual cover to argue in either direction, their decision-making will turn on constitutional culture. Specifically, it will turn on whether we have a national gun culture or not. If we do, the individualists will win; if we don’t, they will lose.
I’m reminded here of the opinion in Dickerson v. United States, in which the court held the Miranda warning had a Constitutional dimension. I was surprised to see Chief Justice Rehnquist penning that opinion until he just broke down and said that the warning had become “part of our national culture.” Then it made sense—there is no way that we could get rid of the warning after so many seasons of Law and Order and shoot-'em-up movies. Even without text to cover their tracks, the court capitulated to the inevitable. This was not Congress as a co-equal constitutional interpreter. It was Hollywood.
Of course, the court doesn’t always use its magic to transform what people think is true about the Constitution into reality. Lots of people think they can assert free speech rights against private actors, like employers, but I’m not expecting a 13th Amendment approach to the First Amendment anytime soon. But I expect Heller to win, with a majority of the court holding that there is an individual right to bear arms with a moderated level of scrutiny.
Maybe that’s because I’ve logged significant time in countries—like Japan and England—with gun control. In Japan, police officers don’t say, “Stop or I’ll shoot!” They say, “Stop or I’ll yell ‘Stop’ again!” (That’s a joke, but it might even work.) As for Britain, here’s the former head of the fire arms intelligence unit at Scotland Yard: “In America, you have a gun culture. You can’t deny it. It’s written into your Constitution. In Britain ... it’s a very small subculture now.”
What’s at issue in this case is whether he’s right.
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[Doug Kmiec]
Oh, Second Amendment, we hardly knew ye.
The Second Amendment has two main parts: a preamble and an operative provision. The preamble: "a well regulated militia, being necessary to the security of a free state," is a statement of purpose. The operative provision: "the right of the people to keep and bear arms, shall not be infringed” is a provision that employs a collective "the people," and in this, it would not seem well-suited to convey the idea of an individual right.
This was the interpretation more or less given the Second Amendment by the Supreme Court in United States v. Miller in 1939. The court concluded that the possession or use of a short-barreled shotgun had no reasonable relationship to the preservation or efficiency of well-regulated militia, and therefore, the Second Amendment posed no limitation to its federal restriction.
Fast-forward to 2008—does the Miller opinion and the language of the Second Amendment mean that the District of Columbia can preclude the possession of a handgun even within one's home?
The best—but unlikely—answer: This is the District of Columbia and, unlike a state, Congress has plenary authority over it, and an amendment that is a limitation upon congressional power vis a vis the states is of no relevance. End of case, see ya in Salzburg, Tony.
This is not likely the answer since the justices themselves formulated the question granted cert to directly relate to states. “Does [the D.C. law] violate Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?” If things are going badly for D.C. tomorrow, maybe it might ask politely why the issue as formulated is not an invitation to advisory opinion.
So, what else might the court do? With a total of 69 briefs on file, the court has received plenty of advice with all kind of novel answers. Some fancy footwork from usually reliable originalists would simply disregard the preamble. It adds nothing to the operative provision, they say. Really? What happened to the interpretative admonition to give meaning to every word?
To see the Second Amendment in this structural way is not to make it an odd duck, but to treat it akin to the establishment clause. The establishment clause as originally understood (and before the invention of judicial incorporation) safeguarded state-established churches. In the case of the Second Amendment, what was safeguarded was the ability of the state to call up its citizens for service in the militia with their own guns at the ready. BYOG—see ya down at the square, Festus.
Since no state today expects individual citizens to bring their own weaponry into militia service, what, exactly, does the Second Amendment safeguard now?
Miller might be said to protect the right of citizens to access the kinds of weapons usable in today’s state guard units that are within the customary control of individuals—e.g., handguns and rifles, but not missile launchers and M-16s. This is possible, but the right should only apply if the particular state actually runs their militia BYOG, and given the deficit budget of California, are you listening, Arnold?
Respected Second Amendment scholar and my former OLC colleague Nelson Lund finds a broader right preventing "Congress from using its Article I authorities, including its authority to regulate the militia, to disarm American citizens." Professor Lund reaches this conclusion by conceding that the concern foremost in the minds of the founding generation—fear of a tyrannical federal government—has subsided, and in any case, an armed citizenry would not likely be able to deter a heavily weaponized federal government. There’s no getting around it—there is today a significant gap between civilian and military small arms, whereas in the 18th century, Americans commonly used the same weapons for civilian and military purposes.
Now, constitutional obsolescence is an unusual thing, but as an original matter, it need not be wrong. We may be used to constitutional rights having expanded application in light of new technology (e.g., the Fourth Amendment implications of electronic wiretapping abandoning the old trespass requirement for an unreasonable search), but there is no reason to believe that modern development might not also mean contracted application. Such may indeed be the second-best case of restraint—the first, escaping through the D.C.-is- not-a-state escape hatch, now looking ever so more attractive.
Since the Second Amendment is no longer needed or perhaps capable of performing its anti-tyranny function, Professor Lund would have the court substitute a new purpose for the Second Amendment, the right of self-defense—which indeed has a long English common law heritage—it’s just not related to the Second Amendment. Lund’s argument is interestingly premised upon natural law principles (which would immediately prompt me to like them), including the Declaration of Independence, and a liberal reading of William Blackstone who saw no distinction between "a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression." Notably, Lund says, Blackstone made no distinction between oppression by the government itself and oppression that the government fails to prevent.
Natural law this may be, but it is not restraint. If the Roberts Court finds a self-defense right based on the government’s failure to act, it will in fairness be obligated to awaken Joshua DeShaney from his coma and bring the Gonzales girls back to life, for in both cases, the court adamantly denied (albeit under the due process clause) that the Constitution was “a guarantee of certain minimal levels of safety and security.”
It will indeed be interesting to see if the American Constitution is transformed from a protection of negative to affirmative liberty at the point of a gun.