Appointing Expert Historians in Second Amendment Cases

Second Amendment law is in a strange place right now. The Supreme Court's ruling this past summer in New York State Rifle & Pistol Association, Inc. v. Bruen struck down New York's licensing scheme for the concealed carry of firearms. More dramatically, though, the opinion rejected a consensus approach that lower courts had adopted to test the constitutionality of firearms restrictions. Rather than subject these laws to varying degrees of scrutiny (determining the government interest at issue and whether the law was sufficiently tailored to achieve that interest), the Court instead held that the constitutionality of gun restrictions was solely a question of history and tradition:

When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's "unqualified command."

I've critiqued this approach to the Second Amendment at length here. To summarize my primary concerns: a focus on history and tradition forces courts out of their legal wheelhouse and into unfamiliar territory of undertaking rigorous historical analysis and attempting to analogize it to the modern day. The Bruen Court provides little guidance on how to analogize historic laws, simply stating that courts must evaluate whether they result in similar restrictions to the law being evaluated, and whether they were motivated by comparable concerns. Questions over how how far analogies may extend (e.g., how much support partial restrictions are due), how many laws are sufficient to establish a tradition, how old or recent laws must be to be relevant, are all unresolved and subjected to inconsistent analysis in the Court's own opinions.

My criticism of the history and tradition approach aside, what are lower courts to do now that this is how Second Amendment analysis is to be done. A few judges have suggested that independent experts on history may provide guidance, acknowledging that courts and attorneys lack the expertise to do so. Judge Carlton Reeves, for example, ordered the parties to a dispute over the constitutionality of a gun restriction to indicate their position on whether a consulting expert should be appointed. As it happens, both parties opposed the notion, with the United States raising concerns over how expensive such an approach would be if applied on a wide basis. This concern is unconvincing. The Supreme Court has ruled that gun restrictions must now be evaluated against history and tradition, and judges and lawyers tend not to be trained historians. If engaging in rigorous and accurate analysis is the goal, the Court has effectively required the costly measures required to accomplish correct results.

At the Volokh Conspiracy, Stephen Halbrook argues against the employment of historical experts to advise courts on the historic landscape of gun restrictions in Second Amendment cases. There are two focal points of Halbrook's arguments. First, Halbrook raises concerns over biased experts. Second, Halbrook argues that it is courts that are required to determine what the law is--not experts, and that appointing experts would upset this balance. There are problems with both of these arguments, and Halbrook's argument as a whole is a good example of those arguing for purportedly neutral approaches to constitutional interpretation doing so out of a desire for specific outcomes rather than accuracy or neutrality.

Halbrook starts by with an anecdote of a scholar who engaged in fraudulent Second Amendment research--suggesting that experts appointed by courts may end up engaging in similar analysis:

Turns out that Michael A. Bellesiles, author of Arming America, fabricated sources, distorted facts, and committed fraud. The Bancroft Prize was rescinded and Emory University fired him. But some judges, professors, and activists had welcomed his thesis with open arms because he attacked America's "gun culture" and derided the right to bear arms. A Ninth Circuit opinion relied on him in support of its "collective rights" holding about the Second Amendment, but the embarrassing cite was removed after the scandal broke. Until then, Bellesiles would have been the perfect candidate for a court to appoint as an "expert" on history.

As for experts who have not engaged in such flagrant misconduct, Halbrook suggests that they are almost just as bad:

Judge Reeves went on to quote Patrick Charles as stating that adherents of the Standard Model of the Second Amendment, who read the right to have arms as an individual right, as "fail[ing] to adhere to even the most basic norms of historical objectivity and methodology." And he quotes Saul Cornell, writing in Slate, accusing the Court in Bruen of having "cherry picked" the historical record. Both Charles and Cornell are partisan historians who oppose Second Amendment rights in their writings and amicus briefs.

. . . 

If the parties do submit expert reports in Second Amendment cases, judges should treat them for what they essentially are—amicus briefs. And courts should be particularly wary of "experts" whose views have repeatedly been rejected by the Supreme Court. If the expert joined an amicus brief supporting the government in Heller, McDonald, or Bruen, that is a pretty good sign the expert's views are out of step with the Supreme Court.

Halbrook does not take a similarly critical approach to how courts are supposed to analyze history and tradition without appointing experts. Were he to do so, his argument would fall apart. Halbrook's critique is based on the possibility that experts will engage in incorrect or biased analysis. But this possibility becomes a guarantee absent expert analysis--in which only the submissions of attorneys advocating for their clients form the basis of what is supposed to be a thorough and balanced analysis of the relevant history.

Additionally, Halbrook's view of what would render an expert's analysis untrustworthy is revealing. He suggests that any analysis that is out of step with the Court's recent opinions on the Second Amendment are unreliable--particularly in the last paragraph of his analysis. It seems that Halbrook's metric for accurate historical analysis is what the Court has declared the history to be, rather than what the history actually was. Under such a formulation, expert opinions are only reliable to the extent that they comport with the rulings of the non-historian members of the Court's majority in prior Second Amendment cases. This is not only a bonkers approach to evaluating historical analysis, but it is designed to guarantee outcomes overturning restrictions on gun possession.

What about the second argument, that it is the province of the Court, rather than experts, to determine what the law is? Halbrook writes:

Both Heller and Bruen came to the Supreme Court on decisions granting motions to dismiss. They were decided on the basis of the complaints and the parties' briefs with no factual development. The Supreme Court was urged to decline to rule on the ultimate merits in both cases but rather to send the cases back down to the lower courts for more development—in Heller by the U.S. Solicitor General and in Bruen by the N.Y. Attorney General. But the Court rejected the suggestion in both cases, and instead conducted its own analysis of the relevant historical materials to determine the scope of the Second Amendment.

This was proper because historical information does not consist of the types of facts that are determined in a trial through competing witness and expert testimony. In legal jargon, historical facts are "legislative facts," not "adjudicative facts." As Judge Posner put it in Moore v. Madigan (7th Cir. 2012), striking down Illinois's ban on carrying firearms outside the home, "Only adjudicative facts are determined in trials, and only legislative facts are relevant to the constitutionality of the Illinois gun law." That is going to be true in pretty much every Second Amendment case after Bruen, as the historical inquiry the courts are required to undertake is purely a matter of legislative facts. As Bruen noted, the historical inquiry "that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge."

Halbrook and the Court may deem historical facts as legislative facts that need not be developed by the parties, but this bare proclamation does not undo the reality that history, tradition, and the relevant context can be complicated and require a fair amount of work and training if accurate results are to be obtained. For example, the Bruen majority distinguished England's Statute of Northampton as largely irrelevant as an analogous historical restriction on the carrying of firearms. One of its bases for doing so was to note that the statute, in its early days, applied to the carrying of armor and larger weapons like halberds. Knives, which the Court contended were most analogous to modern day handguns, were not similarly restricted. In doing so, though, the Court overlooked a great deal of relevant historical context. Knives, while sometimes used for combat and self-defense, were also highly functional--especially in the medieval era. As an example of one overlooked function, the Statute of Northampton was enacted hundreds of years before the fork was introduced to England--before then, knives played a central role as a utensil. The Bruen majority appears to have overlooked all of this context, resulting in a misleading claim of a close analogy between handguns and knives. (For citations and other examples of the Bruen Court's failure to account for the complexity of historical analysis, see my article here).

This is only one example of how it is misleading to treat the original meaning of constitutional provisions, or the history and tradition of gun restrictions, as nothing more than legislative facts. To engage in historical analogizing, one must be aware not only of the text of prior laws, but the context of their enactment, how they were applied, and what their text meant to those who were alive at the time. This is a complex, fact-intensive undertaking, and simply declaring this to be a simple task that judges can undertake at the pleading stage does not change this. Instead, such arguments and proclamations are a tactic designed to draw attention away from the complexities of the approach the Court has adopted.

Arguments like Halbrook's should raise alarms to anyone who is seriously committed to the task of interpreting the Constitution based on its original meaning or in a manner that aligns with history and tradition. Under the guise of neutrality and the illusion of simplicity, advocates like Halbrook urge a method of interpretation that is designed to accomplish specific policy outcomes. The history and tradition approach has many problems. But if it is the approach that courts must take, there may be ways to make it better. Appointing experts is one such approach. Those who oppose this proposal are not concerned with accuracy--instead they treat the Court's precedent as historical gospel and seek only to perpetuate desired policy goals. 

Strategic Originalism

About a week ago, Ruth Marcus at the Washington Post wrote an essay attacking originalism. Her critiques are varied and are digestible versions of arguments made at length in the academic literature. Those looking for an approachable version of a variety of arguments critiquing originalism would do well to read her entire essay.

At the National Review, Ed Whelan responds to Marcus's criticism of originalism. Both essays involve multiple levels of critiques and responses, and I won't rehash the line-by-line debate. Instead, I will first address an exchange over whether originalism is guilty of making false promises about the objectivity of the Constitution's meaning and how Whelan's response fails to engage with Marcus's critique. I then address a brief response to the exchange by Michael Ramsey which exemplifies a common misconception of the implications of progressive originalist scholarship, From there, I address the question of whether the strategic use of originalism by progressive scholars and commentators is worthwhile. 

Originalism and Clear Answers

In Michael Ramsey's summary of Whelan's response to Marcus, he highlights the following portion of Whelan's article that he thinks calls out the "most important" flaw in Marcus's critique:

Marcus contends that originalism “offers the mere mirage of objectivity and therefore of constraint” and is a “fundamental[ly] futil[e]” enterprise. She quotes with approval the notion that “For most constitutional provisions, there is no ‘original meaning’ to be discovered.”

I have no quarrel with the proposition that there are many constitutional questions to which originalism cannot provide a clear answer. Nor, I think, do other originalists. But that is no reason to dismiss originalism when it can provide a clear answer. And on most of the hot-button questions of the past several decades (e.g., abortion), originalism clearly rejects the favored progressive position.

Originalists recognize the incompleteness of originalism as a judicial methodology, and they differ on important questions such as what level of certainty as to constitutional meaning is needed to decline to enforce a statute. I, for example, have defended a presumption of constitutionality, while many libertarians propose a presumption of unconstitutionality. There are also lots of methodological issues on which originalists hold various views. Marcus could fairly have cited this lack of consensus as a flaw in originalism.

It's worth including the precise language of Marcus's original argument that prompts these responses:

The shifting forms of originalism — from trying to discern the intent of the document’s framers, or maybe those who ratified it, to hunting for the original meaning of the words they used — suggests the fundamental futility of the enterprise. “For most constitutional provisions, there is no ‘original meaning’ to be discovered,” Berkeley law dean Erwin Chemerinsky writes in a new book, “Worse Than Nothing: The Dangerous Fallacy of Originalism.” Rather, he says, “there is a range of possibilities that allows for exactly the kind of judicial discretion that originalism seeks to eliminate.” The founding-era documents are incomplete and contradictory; there are many constitutional questions for which they supply no answer.

Whelan's response fails to engage with Marcus's original point. While Whelan concedes that there may be instances where originalism doesn't provide a clear answer, it is not clear how much of a concession this is. And, two sentences later, Whelan seems to limit the scope of his concession so that it does not cover "most of the hot-button questions of the past several decades." For these, Whelan claims, "originalism clearly rejects the favored progressive position."

In my not-so-distant prior career as a litigator, the word "clearly" is something I always searched for when I was preparing an opposition or reply to an opposing party's brief. This term tended to signal the most dubious claims. This is the case here. In a single sentence, Whelan waves aside libraries' worth of debate between legal scholars and historians over the original meaning of constitutional provisions at the heart of disputes over the last few decades. Whelan also fails to engage with the deeper point: history is a complex undertaking, and a thorough investigation into the original meaning of the Constitution may reveal that there is no clear original meaning. If this is the case, originalism does not seem appropriate to resolve a dispute where the Court must rule on a single meaning.

Marcus also critiques the methodology of corpus linguistics, in which lawyers and judges search databases of documents from a particular time period to determine how words and phrases were commonly used. Her broader point is that the methodology is an example of her overall argument: that uniform historical meaning is uncertain and potentially nonexistent. Whelan also fails to engage with this, focusing instead on Marcus's examples of how corpus linguistics being misapplied. He argues that this is an argument "for using corpus linguistics cautiously, not an argument against originalism." This ignores the larger point that corpus linguistics demonstrates originalism's indeterminacy. But to respond directly to Whelan's assertion, I've argued before that it's relevant to point out instances where corpus linguistics is misapplied. If this is a common mistake, then it risks a great deal of shoddy analysis under the guise of originalism--something that should raise more concern for someone like Whelan than he expresses in his response.

(This same point applies to theories of interpretation more generally as well, as I've begun to argue here, but I will leave that point aside since this post is already becoming too long, and because I'll be saying much more on this in a future article.)

Strategic Originalism

The last issue I want to address in this already lengthy post--and the issue that inspired me to write this post in the first place--is prompted by the remark that Ramsey includes after quoting Whelan's response to Marcus:

I agree with all of this, and I'd add that many center-left commentators and legal scholars are very willing to make originalist arguments when they perceive that the original meaning helps their preferred view (as it sometimes does).

Ramsey does not explain the implications of his remark, but he seems to be suggesting that those on the left are conceding the legitimacy of originalism as a theory of interpretation by resorting to originalism when it serves their desired political ends. This inference is dubious because originalist arguments may be made in a strategic manner to appeal to a conservative Court. Those making the arguments may not agree with their methodology, but such arguments may have a slightly better chance of getting the Court's attention than a straight up critique of the Court's interpretive methodology.

In the past I tended to think that progressive originalist commentary and scholarship was of little use and caused more harm than good to progressive policy objectives. Ramsey's point illustrates one of the main reasons I held this view: progressive scholarship employing originalist methodology could be characterized as legitimizing originalism. I did not agree with this inference, as I believe it is not only possible, but common, to assume certain conditions for the sake of argument and then to argue against a certain conclusion on those terms. But, as Ramsey's remark here demonstrates, this distinction is frequently overlooked for the purpose of achieving a "gotcha" argument against progressive scholars and commentators who also disapprove of originalism more broadly.

Moreover, I believed then (as I do now) that history and tradition is often skewed against progressive outcomes. Many of the Constitution's framers owned slaves. Women's rights were limited at the time of the Fourteenth Amendment's passage, and many legal regimes denied women the legal status and abilities held by men. Originalism may not provide clear answers on the meaning of vague and ambiguous constitutional provisions. In the face of this uncertainty, interpreters may give history and tradition an outsized role in constitutional interpretation. Indeed, the Court seems to have leaned into this approach in its last term, as I detail here. In cases involving the interests of women, racial minorities, and other groups who have historically been subjected to oppressive legal regimes, an approach grounded in history and tradition will tend toward negative outcomes for these groups. This isn't a fair playing field, and originalist suggestions that progressives simply must engage more at the level of historical debate are therefore unconvincing.

Despite all of this, my views today of the value of progressive originalist arguments and scholarship are now more nuanced than they once were. While it is easy for a scholar or commentator to take a stance on little more than principle, considering how commentary and scholarship may ultimately be employed in practice remains important. Broad theoretical arguments have their place: they may inform the public and politicians of the state of constitutional interpretation and, to the extent that things are unsatisfactory, provide arguments for reform. 

But scholars and commentators shouldn't forget that there are attorneys who need to make arguments before the Court--a Court with a supermajority of justices who are either self-proclaimed originalists or who have at least signed onto opinions written in a purportedly originalist manner. These advocates before the Court don't have the luxury of high-level theoretical arguments. A claim that originalism is a flawed method will fail to move these justices. Instead, these advocates' best hope of success (admittedly, a very slim hope) is to argue on the justices' level. It is here that progressive originalist scholarship and commentary may be of use. A cottage industry of originalist scholars are at work parsing out the original meaning of constitutional provisions. Maintaining an ideological balance in these scholarly endeavors makes it less likely that the output of this area of legal academia will remain politically one-sided. While originalist scholarship that reveals outcomes that align with progressive policy goals may not end up convincing conservative justices, it at least lends additional support to advocates arguing before them.

Circling back to Ramsey's point about center-left commentators' and scholars' originalist arguments: these scholars may well disagree with originalism as an interpretive methodology but acknowledge the practical reality that those arguing before the Court need to makes arguments at the originalist level. Researching, writing, and commenting on historical evidence of original meaning that favors progressive outcomes is therefore not a concession that originalism is a good, or even legitimate, approach to interpretation. Instead, the work is motivated by a pragmatic acknowledgment of the realities of litigating before a conservative Supreme Court.

One may object and argue that I'm claiming that scholars are hacks. I seem to be assuming that conservative scholars will seek out conservative originalist conclusions, while progressive scholars will strive for liberal originalist conclusions. This seems to require an unrealistic amount of politically motivated academic dishonesty. Such an objective does not accurately characterize my views.

First, political bias in research outcomes will likely be unintentional in many instances. Many (though not all) legal scholars lack sufficient expertise as historians to engage in the rigorous and technical investigation necessary to accurately survey historical evidence. As a result, unconscious biases may color their analysis. These range from nonpartisan biases of applying modern legal frameworks or usages to the reading of historical texts. But they may also include interpreting a vague or ambiguous piece of evidence in a manner that ends up supporting a desired conclusion. 

Second, journals themselves may encourage conclusions that align with particular political ends. Some law journals pride themselves on publishing conservative scholarship. Others are the opposite, encouraging submissions that align with progressive policy positions. As a scholar's investigation begins to uncover evidence that leans in a certain direction, that scholar's desire to be published in one of these journals, or to associate with a particular audience, may end up motivating the scholar to seek out more of the same evidence rather than taking a more balanced approach to the investigation.

Third, scholars who are directly motivated by their political goals may end up implementing these political preferences in a manner that does not involve intellectual dishonesty. A progressive professor, for example, may come to believe after some research that the original meaning of a constitutional provision leads to conservative outcomes. The professor may decline to continue that research or publish the results of that investigation in the interest of avoiding giving ammunition to political opponents. Such a strategy involves political motivation and may raise questions over intellectual honesty and selective publications, but it seems distinguishable from a scholar who ignores contrary evidence or makes false claims in support of a desired conclusion.

My opinion of progressive originalist scholarship and commentary is nuanced. While I have come around to acknowledging its importance for those arguing before the Court, I suspect that even accurate and exhaustively researched progressive originalist work makes little difference to the conservative justices and may be crowded out by shoddy work written and published by those lacking sufficient historical expertise. Additionally, remarks like Ramsey's suggest that this work may be coopted to support claims of progressive acceptance of originalist methodology. Despite all of this, strategic originalism has its place in progressive legal scholarship and advocacy. And while this work may not influence the justices presently on the Court, it may serve as a basis for changing Constitutional law in the decades to come.