"Business as Usual" For Originalism?

I've argued at length elsewhere that three of the highest-profile cases of the Supreme Court's October 2021 term marked a shift away from an originalist approach to constitutional interpretation. In Dobbs v. Jackson Women's Health Organization, New York State Rifle & Pistol Association, Inc. v. Bruen, and Kennedy v. Bremerton School District, the Court set forth a "history and tradition" approach to determining the scope of constitutional rights. In doing so, the Court elevated historical practices to a level at which these practices define the scope of constitutional rights. The Court pays lip service to the Constitution's text, but a close reading of these opinions reveals that the text plays no meaningful role in deciding the outcome. It is therefore a mistake to call these opinions originalist, as many have.

Enter Randy Barnett and Lawrence Solum and their recent draft article, "Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition." Barnett and Solum advance what Michael Ramsey at The Originalist Blog describes as "an important antidote to the flood of academic commentary proclaiming that the Court's recent cases aren't originalist."

From the article's abstract:

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Association v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the implementing doctrines for the First Amendment Establishment and Free Exercise Clauses.

These cases raise important questions about the Court’s approach to constitutional interpretation and construction. Do Dobbs, Bruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court’s embrace of originalism?

Part One of this article elucidates the constitutional concepts of history and tradition. Part Two lays out four distinct roles that history and tradition can play: (1) as evidence of original meaning and purpose, (2) as modalities of constitutional argument within a constitutional pluralism framework, (3) as a novel constitutional theory, which we call “historical traditionalism,” and (4) as implementing doctrines. Part Three investigates the roles of history and tradition in Dobbs, Bruen, and Kennedy. In Part Four articulates a comprehensive strategy for the incorporation of history and tradition in constitutional jurisprudence.

Barnett and Solum describe the use of history and tradition tests as "business as usual" for the Supreme Court, and argue that Dobbs, Bruen, and Kennedy "contain scant evidence of the emergence of a new approach to constitutional interpretation that would supplant either Public Meaning Originalism or Constitutional Pluralism." (p. 26). This got my attention, as I've concluded the opposite.

Walking through Barnett and Solum's analysis of Dobbs, Bruen, and Kennedy reveals the lengths one must go to in order to conclude that these cases are consistent with an originalist approach to constitutional interpretation. Despite Barnett and Solum's conclusions about the healthy state of originalism after the October 2021 term, their analysis of each case acknowledges that each opinion strays from typical originalist analysis in varying degrees. While they attempt to account for these deviations and present each case in as originalist a light as possible, they fail to demonstrate that the Court's recent decisions reflect an originalist methodology. And this is important--these were some of the biggest cases of the term, and in recent memory. If originalism isn't how the Court decides these important cases, this casts doubt on originalism's explanatory and predictive value.

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. 

Bruen's Historical Tradition Approach and Bans on Gun Possession by 18-to-20-Year-Olds

Yesterday, the United States District Court for the Northern District of Texas issued a ruling on the parties' motions for summary judgment in Firearms Policy Coalition, Inc. v. McCraw. At issue was the constitutionality of Texas's law prohibiting 18-to-20-year-olds from carrying handguns under the Second and Fourteenth Amendments. (I initially learned of this case from Steve Vladek. Jake Charles has some interesting initial analysis of the opinion in a Twitter thread here.)

This case follows on the heels of the Supreme Court's decision in New York Rifle & Pistol Association, Inc. v. Bruen, where the Court overturned New York's handgun licensing scheme and announced a new, "historical tradition" approach to determining the constitutionality of gun restrictions. This approach requires courts to first determine whether restricted activity falls within the scope of the Second Amendment's text. If so, governments may only restrict the activity if it is consistent with a "historical tradition" of analogous restrictions on the activity.

I criticized the Bruen Court's historical tradition approach a couple weeks ago in a blog post, and I go into even greater detail in my criticism in a draft article here. To summarize, the Bruen Court provided virtually no guidance for determining what historical restrictions are analogous to present-day restrictions, or how much historical evidence is sufficient to establish a tradition of analogous restrictions. This allowed the Court to pick and choose what historical evidence it could use, and the Court took advantage of this discretion by applying a restrictive approach to historical evidence and rejecting numerous historic gun restrictions as inapposite. The Court also reached inconsistent conclusion about the number of restrictions necessary to establish a historical tradition--suggesting that three restrictions were insufficient to demonstrate a history of restricting firearm carry, but concluding that two restrictions were likely sufficient to establish a history of restricting guns from "sensitive places."

Bruen's historical tradition approach, while seemingly neutral, allows courts to impose their discretion throughout the analysis by choosing what history is relevant and choosing how much historical evidence is enough to establish a conclusion. We see this discretion on full display in yesterday's Firearms Policy Coalition ruling.

The court begins by determining that the carrying of guns by 18-to-20-year-olds falls within the text of the Second Amendment--concluding that people under the age of 21 fall within "the people," identified in the Second Amendment's, "right of the people to keep and bear arms." I won't go into much detail on this initial part of the analysis, as my focus is on the historical tradition analysis that follows. But the court's analysis appears to support Second Amendment challenges to laws restricting the possession and carrying of firearms by minors. The court notes that constitutional rights "were not generally tied to an age of majority" at the founding, noting that "the First and Fourth Amendments applied to minors at the Founding as they do today." (p. 18, internal quotations omitted). The court concluded that this logic applied to the Second Amendment as well, finding that at the time of the founding "[t]he militia was composed of those that had yet to attain the age of majority." (p. 18). This seems to open the door to constitutional challenges by those under 18 years of age by confirming that they are part of "the people" protected by the Second Amendment. Should other courts follow this logic, governments will need to demonstrate a historical tradition of gun restrictions targeting minors.

As for the historical tradition analysis, the District Court, like the Bruen Court, takes a restrictive approach to Texas's evidence of historical restrictions on the carrying of firearms by 18-to-20-year-olds. The Court rejected examples of founding-era laws that restricted the storage of gun powder, regulated gun use "in the context of militia service," and prohibited the use of firearms "on certain occasions and in certain places." (p. 16 (internal quotes omitted)). These restrictions, the court concluded, were not sufficiently analogous because they did not constitute as absolute of a restriction as the Texas law. The court also rejected historical prohibitions on gun possession by felons and the mentally ill, finding that those restrictions involved individualized determinations that resulted in restrictions on Second Amendment rights.

Most notably, though, the District Court rejected evidence of state laws "at the end of the 19th century" that restricted the purchase or use of firearms by those under the age of 21. (p. 18.) The court noted that the earliest of these restrictions dated back to 1856. The court acknowledged that:

the historical record before the Court establishes (at most) that between 1856 and 1892, approximately twenty jurisdictions (of the then 45 states) enacted laws that restricted the ability of those under 21 to "purchase or use firearms." And by 1923, three more states joined with similar laws. But the record stops short and does not show any "historical analogs" from the Founding Era. (p. 18, internal citations omitted, emphasis added).

The court acknowledged that this raised a question over what history the court should consider. While the Second Amendment was ratified in 1791, the Fourteenth Amendment--the vehicle for incorporating the Second Amendment's protections against the states--was ratified in 1868, well after the first of the under-21 restrictions that the court acknowledges. It therefore seems that if "historical tradition" analysis is to account for the historic context of the Fourteenth Amendment, these 23 restrictions--enacted before, or shortly after the Fourteenth Amendment's ratification--are significant evidence in favor of a historical restriction on gun use or purchase by those under 21 years of age.

The District Court's approach to this issue is mixed. After acknowledging the "ongoing scholarly debate" over whether the Fourteenth Amendment's ratification imbued the Second Amendment with new meaning, the Court quotes language from Bruen (which the Court had quoted from its earlier Heller opinion) suggesting that evidence from the post-Civil War era did not provide insight into the meaning of the Second Amendment. But the language the court quotes is not applicable. To the extent that the Heller Court gave less weight to reconstruction-era evidence, this was because the Heller Court was dealing with a restriction in the District of Columbia, and therefore did not need to consider whether the Fourteenth Amendment incorporated the Second Amendment against the states. The District Court also cited Justice Barrett's concurrence in Bruen, but only to the extent that she stated that the Court had not endorsed "freewheeling reliance on historical practice [from] the mid-to-late 19th century to establish the original meaning of the Bill of Rights." (emphasis added). Again, this quote only bears on interpreting the meaning of the Second Amendment to the extent that it is to be fixed at the time of the founding. While the Bruen Court suggested that the scope of the protection of enumerated rights is fixed at the time of the founding, it explicitly avoided answering this question. 

Perhaps recognizing this uncertainty, the District Court concluded that even if it were to consider Reconstruction-era evidence, Texas still failed to prove a historical tradition of restriction. Here, the Court takes advantage of Bruen's failure to set forth any guidance on how much evidence is sufficient to establish a historical tradition of a restriction on gun rights:

At most, Texas's historical analogs show only that, by 1923, 22 states had laws imposing general restrictions on "the purchase or use of firearms" for those younger than 21. Based on Bruen's guidance, however, the Court concludes these laws cannot sufficiently establish that a prohibition on law-abiding 18-to-20-year-olds carrying a handgun in public for self-defense is consistent with this Nation's historical tradition of firearm regulation. (p. 19).

First, this framing suggests that the restrictions were enacted later than they actually were. As the court notes earlier, 20 states had enacted restrictions on the purchase or use of firearms by those under 21 between 1856 and 1892. By highlighting 1923 only, the court makes it seem like these laws arose later in time than they actually did. Second, it is a mystery why the court emphasizes the words, "prohibition" and "regulation." It does not argue that the difference in terminology is of any relevance to the constitutional analysis.

Most notably, though, the conclusion that 22 restrictions is not enough to establish a historical tradition is an extremely restrictive approach to the historical evidence. Bruen suggested that three examples were insufficient, but this is a far cry from the 22 examples in the Texas case. The District Court's conclusion that no historical tradition existed despite 22 examples of historic restriction places a near-insurmountable burden on governments seeking to demonstrate traditions.

It is also worth noting the Supreme Court's approach in framing historical evidence of abortion restrictions in its Dobbs opinion, where it concluded that historic restrictions on abortion in some circumstances were not evidence of a right to abortion in other circumstances. There, the Court argued that the lack of evidence of restrictions on particular behavior does not imply a historic understanding that the behavior was protected by the Constitution. That logic may be applied to the Texas case. For those states in the Reconstruction Era that did not enact restrictions on gun purchase and use by those under 21 years of age, they may have believed they could have enacted those restrictions and simply have chosen not to do so.

Firearms Policy Coalition, Inc. v. McCraw illustrates Bruen's lack of guidance for lower courts. This lack of guidance leaves courts with a substantial amount of discretion to pick and choose relevant historical evidence and to determine the sufficiency of evidence necessary for governments to meet their burden in seeking to restrict gun use and possession. The court here took full advantage of that discretion in concluding that 22 historic restrictions were not enough to establish a tradition. If such a restrictive approach survives appeal, this case could be the first of many instances invalidating longstanding restrictions on gun purchases and possession. 

Choosing History

Will Baude has written a column in the Washington Post, entitled Of Course the Supreme Court Needs to Use History. The Question is How.

Baude discusses the Supreme Court's use of history in its most recent term. He argues that using history is unavoidable:

History is inextricably connected to law. Our Constitution and statutes were enacted in the past, and amended in the past, and so understanding their content is an inherently historical endeavor. History, practiced properly, also can supply objectivity, giving the justices a basis for deciding beyond their personal views and the controversies of the day.

This use of history, as Baude notes, led to some recent dramatic decisions. In Dobbs v. Jackson Women's Health Organization, the Court ruled that there was no constitutional right to abortion, overturning Roe v. Wade, and causing abortion becoming illegal in numerous states due to trigger laws. In New York State Rifle & Pistol Association, Inc. v. Bruen, the Court overturned a New York statutory scheme that had been in place for more than a century that required people to prove good cause in order to obtain a license to carry concealed firearms.

In Bruen, the Court first held (after about a page of analysis with no historical discussion) that the Second Amendment protected a right to carry firearms in public--extending the scope of the Second Amendment's protection beyond the scope of the home. The Court then spent most of its opinion applying a "historical tradition" approach to the constitutional interpretation. In Bruen, this meant that the government could restrict the Second Amendment right to carry firearms only if it could show a historical tradition of analogous restrictions on the right to carry firearms in public. The Court considered a host of laws, cases, and commentary, ranging from English law and common law, to colonial-era restrictions, to laws at the founding, during reconstruction, and beyond. Laws that happened to support broad restrictions were outliers, the Court argued. Old English authorities, like the Statute of Northampton, were outdated. Many of the founding-era and reconstruction-era restrictions were too narrow to be analogous--they restricted carrying firearms for certain purposes only, like causing terror and disruption. By choosing what historical laws were analogous, the Court was able to shape the historic record to fit its desired outcome: that there was no tradition of restricting the carrying of firearms. New York's law therefore had to go.

The next day, in Dobbs, the Court engaged in similar analysis to determine whether there was a historical tradition of permitting abortion. No such tradition existed, the Court claimed, citing "English cases dating all the way back to the 13th century" (despite its earlier discrediting of the Statute of Northampton as too old) and citing a host of historic restrictions banning pre-quickening abortion (that is, abortion before movement of the fetus could be detected--often at a point between the 16th and 18th week of pregnancy). These pre-quickening restrictions--restrictions that prohibited abortion in certain circumstances--are similar to many of the historic restrictions on carrying firearms that the Court rejected in Bruen--gun restrictions only banned carrying firearms in certain circumstances. In Dobbs, however, the Court cited these cases to support its conclusion that there was no historic recognition of any right to an abortion. The Court argued that just because pre-quickening abortion "was not itself considered homicide, it does not follow that abortion was permissible at common law--much less that abortion was a legal right." (Dobbs, p. 2250). Using this logic (logic that was notably absent in Bruen) The Dobbs Court cited partial abortion restrictions as evidence of a lack of a historical tradition of recognizing abortion rights. 

This closer look at these opinions reveals that the Court is not so much "doing" or "using" history as Baude suggests, but "choosing" history. Looking up historical evidence and parsing out historic laws and their development is a small, and seemingly insignificant part of the Court's analysis. The real work happens when the Court decides whether evidence is analogous to a present claimed right or restriction. 

The Court provides virtually no guidance or rules for this process. The Court doesn't say how many historical laws and regulations are necessary to establish a tradition, how old examples can get before they are too old, or where to draw the line between founding- or reconstruction-era laws that clarify or liquify meaning versus those that are unacceptably modern. This failure to provide guidance isn't an accident. It gives the Court the flexibility to treat the evidence in a manner that supports its desired conclusion. For example, in Dobbs, the Court cited commentaries from as far back as the 13th century as evidence of historic abortion restrictions. But the day before, in Bruen, it dismissed the Statute of Northampton (enacted in 1328 and in place for hundreds of years thereafter) as inapplicable, in part because they were unacceptably ancient. 

Another example: in Bruen, the Court dismissed colonial-era examples of restrictions on carrying firearms, stating that the respondents had only identified three such regulations and that "we doubt that three colonial regulations could suffice to show a tradition of public-carry regulation." (Bruen at 2143). Earlier in its opinion, though, the Court asserted that restricting firearms in "sensitive places" was consistent with historical tradition--despite citing sources that were only able to identify two examples of colonial and founding-era restrictions on carrying firearms in sensitive places. (Dobbs at 2133, citing an article by Kopel & Greenlee and an amicus brief that only identify Maryland laws forbidding carrying guns in the houses of the legislature and a Delaware constitutional provision prohibiting guns in polling places). When it comes to restricting firearms, three examples are not enough to establish a historical tradition. But when it comes to reaffirming the sensitive places analysis that Justice Thomas had previously signed onto when he joined the Court's opinion in District of Columbia v. Heller, two examples were sufficient.

Baude argues that if critics of the Court want to make a difference, they're going to "have to make the best use of history, not try to escape it." They can't be like the dissenting Justices who "engaged superficially on historical grounds." This strategy is misguided. Confronting the Court with historical evidence likely make a difference in politically salient cases--as Bruen and Dobbs demonstrate. Critics may do history, they may use history. They may set forth a slew of examples in support of their claims. But this won't make any difference to a Court that chooses history to support desired results.

Choosing history as a basis for constitutional interpretation also skews the playing field against progress and protection of disadvantaged groups. The dissenting Justices make this point in Dobbs: 

We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women's liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase “We the People.” In 1868, the first wave of American feminists were explicitly told—of course by men—that it was not their time to seek constitutional protections. (Women would not get even the vote for another half-century.) To be sure, most women in 1868 also had a foreshortened view of their rights: If most men could not then imagine giving women control over their bodies, most women could not imagine having that kind of autonomy. But that takes away nothing from the core point. Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women's rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship. (Dobbs at 2324-25, Breyer J. dissenting).

What does Baude have to say to the fact that history itself is skewed due to the historic mistreatment and disenfranchisement of women and African-Americans?

The use of constitutional history has been challenged as inherently regressive. Why should today’s public policy decisions owe anything to past eras when women or people of color were excluded from power? This argument misses the point. In cases like Dobbs, the court seeks to free government from constitutional constraint, arguing that today’s governing majorities are entitled to make their own choices about abortion policy, no matter what dead White men in wigs may have thought. In cases like Bruen, the court relies on historical arguments that the right to keep and bear arms was especially vital to newly freed African Americans in the wake of the Civil War. And in other cases, the court has used history to vindicate the rights of criminal defendants and other unpopular groups.

Baude's point about Dobbs is unresponsive. As the Dissent points out, the absence of women's voices and participation in the political process is a glaring example of how history is skewed in a particular direction--here against the interests of women. For hundreds of years, women weren't guaranteed the right to vote. They were restricted from many professions, including the law and and the teaching of law. Is it really all that surprising that the notion that the right to abortion had anything to do with the right to privacy was a relatively recent part of legal discussions over abortion law? What's more, Dobbs wasn't about the meaning of the Constitution's text. The Court's conclusion regarding the scope of Due Process was based entirely on historical laws and restrictions, filtered through the selective reliance on certain examples and characterizing other examples in a manner that rendered them irrelevant or transformed them into further support. 

Additionally, Baude's mention of historical arguments about the relevance of the right to bear arms for newly freed African Americans in Bruen rings hollow in light of the fact that substantial majorities of modern communities of color support stricter gun laws (a point that Adam Winkler raises here). Baude's argument demonstrates the point he's trying to refute. In citing the reconstruction-era need for African Americans to be armed, the Court applies the oppression that African Americans faced during reconstruction to modern circumstances. This historic violence, which was perpetuated by white communities and government officials, ends up shaping and defining the modern right to keep and bear arms for all communities, despite the opposition of modern communities of color.

Perhaps there will be occasional exceptions where historical tradition aligns with the rights of criminal defendants an unpopular groups. But historical discrimination and oppression of women, racial minorities, Native Americans, and other disadvantaged communities suggests that we are off to a rough start if we choose to look to the past to guide present decisions. Cloaking the analysis in with phrases like "original public meaning" or "historical tradition," and characterizing the analysis as "ultimately deciding . . . law, not history for its own sake" as Baude urges may obscure this reality and make the process seem more neutral. But "doing" or "using" history leaves those seeking meaningful reforms and protections for disadvantaged groups and communities at a disadvantage from the outset. 

A clarification: Parties and those arguing before the Court should, of course, do what they can to make historical arguments. Doing so will ensure that no stone is left unturned and will shine a brighter spotlight on the Court's motivated reasoning.

Criticizing the Court's methodology is preferable to attempting to meet the Court on a skewed playing field. Perhaps the Court won't listen. But making this point abundantly clear to voters and lawmakers may prompt reforms or--at the very least--urge the election of Presidents and Senators who will appoint and approve Justices who engage in alternate methodology. Critics are better off making these arguments than legitimizing flawed, skewed, malleable historical and originalist methodologies by participating in those methods themselves.

UPDATE

Those who want to read even more about this should check out my draft article on the Court's historical tradition approach in Bruen, which I just posted to SSRN. Comments are welcome!

Originalism and Selective Historic Reference Points

A little over a week ago, Michael Dorf wrote an article in Verdict regarding oral arguments in New York State Rifle & Pistol Association Inc. v. Bruen. This is the Supreme Court's most significant Second Amendment case since McDonald v. City of Chicago, in which the Court incorporated the Second Amendment, holding that it applies against state restrictions on the right to keep and bear arms. The Supreme Court's prior opinion in District of Columbia v. Heller, two years before, had only held that the Second Amendment applied to federal restrictions. 

New York State Rifle & Pistol Association, like McDonald, involves a non-federal restriction on firearms. Most rights included in the Bill of Rights have been incorporated to apply against state and local governments--with the Supreme Court basing this incorporation in the Fourteenth Amendment's Due Process Clause. Justice Thomas has previously argued for an alternate approach to incorporation, arguing that the Privileges or Immunities Clause of the Fourteenth Amendment is the basis to apply the Second Amendment (and other rights enshrined in the Bill of Rights) against the states.

Dorf focuses on a question that Justice Thomas asked during oral argument:

Attorney Paul Clement argued the case for the plaintiffs. He contended that “history and tradition” supported his position. Justice Thomas, who, more than any of his colleagues, espouses originalism, understood Clement’s invocation of history to imply that the Court should look at what the constitutional text meant to the People who ratified it. But that then raised a question. Justice Thomas asked: “should we look at the founding, or should we look at the time of the adoption of the Fourteenth Amendment, which then, of course, applies it to the states?”

Clement, a former Solicitor General of the United States, is an excellent lawyer, so he gave the answer that best served his clients: it doesn’t matter. Whether you look at the original public meaning in 1791, when the Second Amendment was ratified, or at the original public meaning in 1868, you will find the same answer: a right of generally law-abiding citizens to carry firearms in public.

Is that right? As I discussed in an article published in the Northwestern University Law Review earlier this year, there is reason to believe (and sources cited in footnote 37 of my article conclude) that the People who ratified the Second Amendment understood its language to prevent the federal government from disarming state militias but not to have many implications for individual firearms possession, while the People who ratified the Fourteenth Amendment in 1868 understood at least some kind of individual right to keep and bear arms to be among the privileges and immunities that the provision secured against state interference. (emphasis added).

Dorf notes that the Court, both historically and now, has refused to find that constitutional amendments incorporated through the Fourteenth Amendment offer differing limits on the power of state governments compared to the federal government:

Most of the cases incorporating provisions of the Bill of Rights against the states arose during the 1960s. During that era, the Justices debated whether the Fourteenth Amendment incorporates Bill of Rights provisions against the states in exactly the way they apply to the federal government—a position sometimes called “jot-for-jot” incorporation—or whether in some instances the incorporated right might have different implications for the states.

We have already encountered one reason why a right might be different as applied to the federal government and the states: perhaps by the time the People ratified the Fourteenth Amendment in 1868, their understanding of the right had changed from the views that prevailed when the original Bill of Rights was ratified in 1791. Federalism provides another explanation: within broad bounds, each of the fifty states might be permitted some leeway in light of distinctive traditions and variations in their legal systems.

Despite the appeal of history and federalism, the Court eventually settled on jot-for-jot incorporation. Indeed, just last year, in Ramos v. Louisiana, Justice Neil Gorsuch, writing for the majority, decisively “rejected the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights” (citations and internal quotation marks omitted). In Ramos, the Court held that the Fourteenth Amendment’s incorporation of the Sixth Amendment’s right to jury trial in criminal cases precludes conviction based on a non-unanimous jury decision in state court, just as in federal court.

Dorf notes that Thomas, as well as other justices who've authored or signed opinions regarding the scope of incorporated amendments (including Justice Gorsuch in Ramos) claim to be originalists. I've written about originalism before, both here and in longer work. Most modern versions of originalism hold that the meaning of the Constitution and its amendments are fixed at the time of ratification, and that the original public meaning of those provisions at the time of enactment is the same meaning that should be applied today. That notion of fixed meaning (sometimes described as the "fixation thesis") is accepted by most modern academic originalists.

But if meaning is fixed at the time of ratification, then most of the amendments in the Bill of Rights likely apply differently against state and local law than they do against federal laws. That's because these amendments don't apply directly to state laws. Instead, they apply to states via the Fourteenth Amendment, which was ratified 1868--many years after the amendments were originally enacted at the end of the 1700s. During those years, the public's understanding of the often broad, abstract, and value-charged language of these amendments likely changed to some degree. And yet, self-proclaimed originalists on the Court pay little mind to this--indeed some have explicitly rejected it. Take McDonald, the case that incorporated the Second Amendment against the states. There, Justice Scalia--recognized as the highest profile originalist to sit on the court--joined in the portion of Justice Alito's opinion that explicitly rejected the notion that the Fourteenth Amendment may provide a different level of protection to the right to bear arms:

[Justice Stevens] would hold that "[t]he rights protected against state infringement by the Fourteenth Amendment's Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights." Post, at 3093.

As we have explained, the Court, for the past half century, has moved away from the two-track approach. If we were now to accept Justice STEVENS' theory across the board, decades of decisions would be undermined. We assume that this is not what is proposed. What is urged instead, it appears, is that this theory be revived solely for the individual right that Heller recognized, over vigorous dissents.

Justice Thomas, it should be noted, did not join in this portion of the opinion.

Alito's view is hardly without historic support. The Court has long refused to recognize differing levels of protection by the Fourteenth Amendment, warning against a potential dilution of protection against state law enforcement compared with federal law enforcement and raising the specter of incongruous enforcement of constitutional rights against different government actors. Take Justice Brennan's opinion for the Court in Malloy v. Hogan:

The Court thus has rejected the notion that the Fourteenth Amendment applies to the States only a "watered-down, subjective version of the individual guarantees of the Bill of Rights," Ohio ex rel. Eaton v. Price, 364 U. S. 263, 275 (dissenting opinion). If Cohen v. Hurley, 366 U. S. 117, and Adamson v. California, supra, suggest such an application of the privilege against self-incrimination, that suggestion cannot survive recognition of the degree to which the Twining view of the privilege has been eroded. What is accorded is a privilege of refusing to incriminate one's self, and the feared prosecution may be by either federal or state authorities. Murphy v. Waterfront Comm'n, post, p. 52. It would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in a state or federal court. Therefore, the same standards must determine whether an accused's silence in either a federal or state proceeding is justified. (emphasis added).

Incongruous as such a legal regime would be, it would at least be an originalist one. Refusing to apply two different standards rejects the fixation thesis in favor of the broader goal of a consistent set of rules governing the scope of constitutional amendments. This goal may be sensible, but it isn't consistent with originalism. And this ignorance of basic originalist principles may not always be in the service of such noble goals, as Dorf argues:

To be sure, in Ramos, as in McDonald, Justice Thomas concurred separately to insist that the Privileges or Immunities Clause, rather than the Due Process Clause, does the work of incorporation. But for him as well as his colleagues, originalism—which allows for changed meanings between 1791 and 1868—stood as no obstacle to full incorporation, which they favored on what pretty clearly appeared to be policy grounds.

In that respect, the irrelevance of Justice Thomas’s question—1791 or 1868?—jibes with everything else we know about originalism. In the most hotly contested cases that come before the Supreme Court, arguments rooted in original meaning typically serve a rhetorical function. Justices invoke them to justify decisions taken on other, ideological, grounds.

What are the implications of all of this? 

First, it suggests that as much as originalist scholars may argue in favor of originalism, these arguments seem to have little impact on the Court's actual practice, which consistently ignores (and is based in a history of ignoring) the notion that constitutional provisions' meanings are fixed at the time of enactment. Originalists may respond that failures to appropriately apply originalism should not count against the theory itself. Indeed, some argue that the recognition of such failures by the professoriate turns out to be a point in favor of originalism. Leaving a thorough response to that peculiar defense for another day, I will note for now that if the Court continues to consistently misapply originalism (and reach decisions based on the foundation of jot-for-jot case law), there ought to come a point where originalists should ask themselves whether everything they are working for is really worth it. 

Second, the longstanding failure of the Court to recognize that the meaning of constitutional provisions are fixed at the time of reenactment in the Fourteenth Amendment context threatens a recent trend in originalist scholarship arguing for a positivist take on the theory. This "positivist turn" in originalist theory (very broadly and briefly summarized), argues that originalism is our law, and that it should be followed because judges promise to follow the law. If the Court's history of failing to apply the original public meaning of the Fourteenth Amendment forms the basis for a great deal of constitutional law, the thesis that originalism is, in fact, our law is significantly undermined.

Third, the issue of whether to interpret early Amendments based on their meaning at the time of the founding or at the time of the Fourteenth Amendment's ratification represents a subsection of a debate over when the Constitution's meaning should be fixed. For the most part, this debate is sadly limited--originalists argue for fixation at the time of ratification, a few people (and I) argue that provisions should be read based on present public meaning, and the Court apparently favors fixation at the time of the founding, 1868 be damned. But there are more options. Why should we consider the meaning of the Constitution as fixed at any point before the Fifteenth Amendment barred the United States and the states from denying the right to vote based on race in 1870? Why shouldn't the meaning of the Constitution be fixed in 1920 when the 19th Amendment's ratification guaranteed women the right to vote? Some may argue that the Constitution has mechanisms for amendments built in, and that this "potential sovereignty" somehow ameliorates the failure of earlier iterations of the Constitution to accommodate the democratic input of those it governs and protects. But this doesn't account for the fact that determinations of original public meaning tend to focus on the voices of those who played a role in the drafting, adoption, and ratification of constitutional provisions, and that the voices of women and African Americans were absent from these contexts for centuries. Those historically excluded from voting may not want to completely do away with the Constitution and amendments as they're worded, but they ought to have some sort of a say in the meaning of these provisions if we're going to claim with a straight face that the Constitution represents the popular will of a supermajority of Americans.

While I have dozens of depositions and hundreds of other projects and emergencies to worry about over the next few months, I'm sure I'll find the time to write more on these issues. In the meantime, we'll see if any of the Justices make an effort to differentiate between or justify particular historic reference points for their constitutional interpretations when the opinion in New York State Rifle & Pistol Association is eventually issued.

Supreme Court Rules That Challenge to New York City Gun Restriction is Moot

Amy Howe at SCOTUSblog writes:

The Supreme Court sent a major Second Amendment case back to the lower courts today, ruling that the challenge to a New York City restriction on the transport of guns is “moot” – that is, no longer a live controversy – because the city changed the rule last year. But some of the court’s more conservative justices signaled that it might not be long before the court takes up another gun rights case.

The case is New York State Rifle & Pistol Assn., Inc. v. City of New York.  I wrote about this case back in January 2019 when the Court granted cert, noting that this was the first major Second Amendment case that the Court had agreed to hear in over a decade. Details on the ordinance at issue and the petitioners' challenge can be found there.

As I noted then, the Court was likely to overturn New York City's restriction in light of Kavanaugh's appointment. But after the Court agreed to review the law, New York City amended its rule so that people could transport firearms to second homes or to shooting ranges outside of the city. In its opinion today, the Court notes that this was the relief that the petitioners had sought.

While the Court's mootness determination avoids engagement with the substance of the Second Amendment challenge, several Justices either disagreed with the decision, or explicitly stated that the Court should take up a Second Amendment case.

Justices Alito, joined by Gorsuch and (for the most part) by Thomas, dissented. The dissent concluded that the case was not moot, and determined that New York City's ordinance violated the Second Amendment.  To quickly summarize the Second Amendment analysis: the dissent found that the New York City ordinance infringed on the right to keep a handgun in the home for self-defense because it restricted people from taking guns out of the home for certain purposes necessary to exercise that right, such as repairing the gun or taking the gun to a range for practice. The dissent found that the ordinance's restriction on taking firearms outside of the city to practice at ranges was impermissible, since gun ranges may not have the same models of firearms available, and because the City could not identify restrictions on taking firearms outside of municipal limits during the founding era. The dissent also took issue with the City's claims that the restriction served a purpose of promoting public safety.

This case originally looked like it would be the next major Supreme Court case to interpret the Second Amendment. With its mootness determination, the Court sidestepped this outcome. But the layout of the opinions gives a preview of the Court's next steps on the Second Amendment. Kavanaugh's concurrence all but confirms that he will join Alito, Gorsuch, and Thomas in voting to grant certiorari to a Second Amendment challenge in the near future, and once that happens this process will begin again.

[Updated 4/28/2020]

Cutting-Edge Scholarship on State Laws Against Shooting Fish With Guns

One of several reasons why I have not been writing as much here as I used to is that I have been investing my energy in a few other projects. One of them is my forthcoming article, Shooting Fish, which will be published in Volume 12 of the Kentucky Journal of Equine, Agriculture, & Natural Resources Law. Here is the abstract:

This article sets out to answer the question that’s on everyone’s mind: Is it legal to shoot fish with guns? This burning legal query has never had an exhaustive and obsessively-researched answer. Until now. 

In a fifty-state survey of laws that explicitly or incidentally restrict shooting fish, this article finds that every state has laws or regulations that either explicitly or effectively ban shooting fish — with some narrow exceptions. This article simultaneously serves as an invaluable resource to heavily-armed anglers throughout the country, and illuminates a facet of the complex system of legal rules governing fishing in all states. The regrettable lack of academic discussion of shooting fish and state laws on the subject belies the complex legal, environmental, and constitutional implications of these laws. 

This article explores those implications. States’ statutory and regulatory schemes range from explicitly defining fishing methods, to creating long lists of prohibited fishing techniques (think bans on slurp guns, slingbows, fish pews, tree-topping devices, giant powder, and fishberries, to name just a few). Many states employ location- and species-specific laws and regulations — often targeting invasive fish species by permitting wider ranges of methods for taking them. This article also addresses the environmental implications of fish-shooting laws, and why these laws exist. It also notes historic attempts to loosen shooting restrictions — attempts frequently inspired by the proliferation of high-flying, fast-multiplying Asian carp. 

Not to disappoint mainstream enthusiasts of legal scholarship, the article closes with a discussion of the state and federal constitutional implications of fish-shooting restrictions. While bans on shooting fish do not raise significant Second Amendment concerns, certain states’ prohibitions on firearm possession incidental to shooting fish do. This article also acknowledges state constitutional provisions that set forth the right to hunt and fish, but notes that these provisions are unlikely to give rise to successful legal challenges by fish-shooting enthusiasts.

As always, comments on this draft are welcome. Those who are interested in learning of the extensive and creative variety of methods that people have devised for killing and taking fish will find this article particularly helpful.

The Supreme Court Will Hear the First Major Second Amendment Case in Nearly a Decade

On Tuesday, the Supreme Court granted certiorari in a case challenging the constitutionality of New York City's regulations that restrict the carrying of firearms outside the home. The New York Times and Wall Street Journal have more reporting on the background of the case. From the New York Times:

The Supreme Court said on Tuesday that it would review a New York City gun law that limits residents from transporting their guns outside their homes, its first Second Amendment case in nearly a decade and a test of the court’s approach to gun rights after the arrival of Justice Brett M. Kavanaugh in October. 

Justice Kavanaugh, who replaced the more moderate Justice Anthony M. Kennedy and created a reliable five-member conservative majority, has an expansive view of gun rights. His presence most likely means that the Supreme Court will start exploring and perhaps expanding the scope of the Second Amendment.

The case is New York State Rifle & Pistol Association, Inc. v. City of New York, and the petitioners challenging New York's rule are an organization and several individual gun owners. The Second Circuit opinion that is being appealed is here.

New York Penal Law section 400.00(2)(a) and (f) provide for "premises" licenses and "carry" licenses for handguns. New York City's Rule regarding premises licenses states:

(a) Premises License – Residence or Business. This is a restricted handgun license, issued for a specific business or residence location. The handgun shall be safeguarded at the specific address indicated on the license. This license permits the transporting of an unloaded handgun directly to and from an authorized small arms range/shooting club, secured unloaded in a locked container. Ammunition shall be carried separately. (38 RCNY § 5-01(a)

This rule contains a number of restrictions, including that handguns be transported unloaded in a locked container, that ammunition be carried separately, and that handguns may be transported to "authorized" shooting ranges. The City acknowledges that there are seven authorized ranges in New York City. Holders of premises licenses are restricted from transporting firearms to shooting ranges outside of the city or to second homes, even if they are within the city (as this destination is not "an authorized small arms range/shooting club."

The Court has refused to take up Second Amendment cases since its 2010 ruling in McDonald v. City of Chicago in which it held that the Second Amendment's protections apply to the states. The Court had previously held in its 2008 ruling in District of Columbia v. Heller that the Second Amendment creates an individual right and that its core protection was of the possession of firearms for self-defense in the home. Since then, lower courts have applied a variety of approaches to the Second Amendment, as many of the cases they have confronted have involved rules or restrictions affecting the possession or carrying of firearms outside of the home. Noting Heller's statement limiting the core possession to self-defense in the home, and also noting language stating that the case should not cast doubt on other, "longstanding" restrictions on firearms, lower courts have typically restricted the scope of the Second Amendment. The Supreme Court has consistently refused to review these decisions -- including cases involving the carrying of firearms.

This is now likely to change, as there are now four conservative justices with expansive views of Second Amendment protections. These four justices create a block of four votes required to grant review of lower courts' decisions.

Justice Thomas, in particular, has consistently dissented from the Court's prior refusals to take up Second Amendment cases. He has been joined in these prior dissents by Justice Gorsuch (in this case involving California's restrictions on the carrying of firearms). Justice Alito likely shares Thomas's views, as reflected in his concurring-in-the-judgment opinion in Caetano v. Massachusetts, in which Alito (joined by Thomas) criticized the reasoning of the lower court opinion and argued that the Second Amendment's protection encompasses the possession of weapons commonly used today for self-defense. (As an aside, commentators will likely point to Alito's 1996 dissent from a case upholding a ban on machine guns, but that dissent is not particularly useful, as his analysis focuses on the Commerce Clause of the Constitution, and not on the Second Amendment). Justice Kavanaugh is likely to join Thomas, Gorsuch, and Alito in seeking a broad ruling on Second Amendment protections, as he has previously ruled that prohibitions on semi-automatic firearms are unconstitutional. (See page 46 of this opinion for the start of Kavanaugh's dissenting opinion while he was still on the DC Circuit).

Some commentators argue that the Supreme Court will likely overturn the Second Circuit's opinion and broaden the scope of Second Amendment protections. Mark Joseph Stern argues this in this Slate article and Garrett Epps makes a similar point over at The Atlantic. Both articles have exaggerated titles (Stern's claims that the Court will make all states' laws like Texas' laws and Epps' title raises the notion of "Supersizing" the Second Amendment). But the tone of each article suggests that these goofy titles are likely the choice of editors rather than the authors.

Stern writes:

The case thus marks an effort to inch the Supreme Court toward establishing a right to public carry without forcing the justices to tear down hundreds of laws in a single, sweeping ruling. For a decade, gun advocates have been stymied by the language in Heller and McDonald expressly limiting the Second Amendment to firearms “in the home.” The conservative justices, however, will probably use New York State Rifle to blur that line.

 And Epps notes:

The Rifle & Pistol case begins, then, with four virtually certain votes against the New York law—the two newcomers, Thomas, and Alito. Chief Justice John Roberts voted for the gun owners in Heller and McDonald. He may have been trying to keep the Court out of the Second Amendment area for institutional reasons since then, but that’s not likely to make him go back on his earlier votes when the time comes to throw down. 

“The impact of this case could be huge,” [Law Professor Adam] Winkler told me, because the Court may decide that the right to gun possession extends outside the home. The Court could undermine long-standing restrictions on concealed carry in America’s major cities, leading to hundreds of thousands more guns on the streets of Los Angeles, New York, and Washington, D.C.

Like Stern and Epps, I think that it's likely that the Court will overturn the Second Circuit opinion and strike down the New York City rule. The question then becomes how broad the Court's opinion will be. The New York City rule has several levels on which the justices may rule. A narrow ruling would overturn the rule based on its destination restriction, which prohibits premises license holders from taking their handguns anywhere other than an authorized shooting range. A broader ruling could strike down the law because it prohibits these license holders from carrying the handguns in a locked container separate from the ammunition. Such a broad ruling may be complicated by New York's alternate permit schemes -- which include concealed carry permits -- but there may be ways around this, such as a ruling striking down the locked container portion of the requirement only, while leaving the separate ammunition component intact.

There is also the question of how a broad determination of the Second Amendment's protection can make its way into the opinion. My first instinct, from looking at the layout of the Court and -- in particular -- Chief Justice Roberts's likely goal to avoid large changes in the law, is that there will likely be a majority opinion of Roberts, Alito, Gorsuch, Thomas, and Kavanaugh that overturns the law for its destination restriction, and a concurring opinion of the latter four justices that argues that the locked-case / no ammunition restriction is also impermissible.

A less-likely alternative is that Roberts will author an opinion that includes dicta that lays the foundation for a broader Second Amendment protection scheme. This would be similar to the paragraph in the Heller opinion that stated that "longstanding" restrictions on firearms (such as restrictions of criminals' possession of guns and prohibiting firearms in government buildings) were not cast into doubt by the opinion -- a paragraph that was reportedly added to gain Justice Kennedy's vote -- and which formed the basis of many restrictive lower court opinions in subsequent years. I think that an approach with language that leans in the opposite direction and calls for more Second Amendment protections is unlikely, as the most conservative justices will still join in the narrower majority opinion even if they write their own concurrence.

However the outcome may look in the end, it is likely that the Court will overrule the lower decision and, in doing so, hold that the Second Amendment provides at least some level of protection to the carrying of firearms beyond the home. However narrow the opinion is framed, this opinion would significantly broaden the scope of Second Amendment protections, and would likely lead to much more successful litigation against states and localities with strict restrictions on the carrying of firearms.

Supreme Court Declines to Hear Second Amendment Challenge to California Gun Restrictions

Various news outlets, including the LA Times, report that the United States Supreme Court recently declined to hear a case challenging California's 10-day waiting period for purchasing firearms. The New York Times reports on the denial of certiorari here. The case, Silvester v. Becerra, joins a long line of Second Amendment cases that the Supreme Court has refused to hear. From the LA Times:

In 2008 and 2010, the high court struck down ordinances in Washington, D.C., and Chicago that prohibited the private possession of handguns as violations of 2nd Amendment. Americans have a right to have guns at home for self-defense, the court said in 5-4 decisions.

But since then, the justices have turned down gun rights advocates who have sued to challenge gun regulations based on the 2nd Amendment.

"There are simply not four justices who are eager to jump back into this fray," said UCLA law professor Adam Winkler, an expert on gun rights. It takes the votes of at least four justices to grant review of a case. "The California case highlights that the gun debate will play out in the legislatures and in Congress."

Most of the reports on this case fail to note who brought the Second Amendment challenge. The case was brought by two California gun owners (and two nonprofits) who argued that the 10-day waiting period was an unconstitutional burden on their right to bear arms. The fact that the petitioners were gun owners served to strengthen their argument that a 10-day period was unnecessary for running a background check (the petitioners had already passed the check on obtaining their other firearms) and for petitioners to "cool down" before purchasing firearms on a violent impulse (the petitioners already owned guns, so if they had violent intentions, they would already be capable of acting on them). Adam Winkler (the law professor quoted in the LA Times article above) raises this point, among others in an informative Twitter thread which begins with the tweet below:

The Supreme Court's refusal to decide whether California's 10-day waiting period is unconstitutional indicates that the majority of justices do not share the NRA's view on the scope of the Second Amendment. https://t.co/b8uG8P3zGi

— Adam Winkler (@adamwinkler) February 20, 2018

Winkler's main point in the thread is that the Court is unwilling to take on what may be an easy Second Amendment case. Rather than addressing broad questions of carrying firearms in public, the case was limited to a narrow set of circumstances: a 10-day waiting period on people who already owned guns. Winkler recognizes, however, that the case may not be as strong as the petitioners though, as the fact that they currently own guns means that their ability to defend themselves should not be significantly infringed by a delay in purchasing additional guns.

This case has been drawing attention because it was decided very soon after the recent school shooting in Parkland, Florida, and also because Justice Clarence Thomas authored a lengthy dissent to the Court's decision not to hear the case. Thomas attacks the Ninth Circuit for failing to properly apply intermediate scrutiny to the 10-day waiting period, and argues that the Ninth Circuit upheld the constitutionality of the restriction based on speculation as to the law's effects and assumptions that the law would not significantly burden firearm purchasers. Thomas criticizes the Court's decision not to hear the case as the latest in a long line of failures to take up Second Amendment cases, arguing that "If a lower court treated another right so cavalierly, I have little doubt that this court would intervene." Those familiar with the Court's Fourth Amendment jurisprudence got a chuckle out of this proclamation.

I have doubts about the claims Thomas makes in his dissent, largely for Winkler's point that I highlighted above -- that these particular petitioners already own firearms, and therefore can defend themselves with the guns they already have. The Court, in District of Columbia v. Heller, held that the right of self-defense is "central" to the Second Amendment's protections, and the petitioners would face an uphill battle in claiming that this right was significantly burdened. Perhaps this is why no other conservative justices joined in Thomas's dissent.

As a final note, Thomas cites to Footnote 27 of the Heller opinion to support his claim that the appropriate level of scrutiny for laws restricting the Second Amendment must be higher than "rational basis" scrutiny. Footnote 27 of Heller states:

Justice BREYER correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 2850-2851. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 602, 128 S.Ct. 2146, 2153-2154, 2008 WL 2329768, *6-7, 170 L.Ed.2d 975 (2008). In those cases, "rational basis" is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938) ("There may be narrower scope for operation of the presumption of constitutionality [i.e.,narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments ..."). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.

Because the Court in Heller determined that the District of Columbia's firearm restriction would not prevail under any standard of scrutiny, this footnote is dicta, although Thomas cites it as precedent in support of his claim that a level of review higher than rational-basis is required. I have not previously evaluated this footnote at length, although I did locate this commentary by Josh Blackman expressing confusing over the footnote and whether it is consistent with the Court's jurisprudence.

The footnote does not seem correct to me, as it would wreak havoc on equal protection law if it were the law. The Fourteenth Amendment guarantees equal protection under the law, but many laws apply to certain people or groups, and unless these distinctions are based on "protected classes" of individuals, the distinctions are generally upheld as constitutional as long as there is a rational basis for the different treatment. (See, e.g. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464-465 (1981)). The equal protection guarantee is in a constitutional amendment (albeit not in the "first ten"), but the logic of Footnote 27 would require any law that treated any group differently to be subject to a level of scrutiny beyond rational basis. This could result in a crippling level of challenges against legislation, and would be contrary to extensive precedent.

Silvester joins the ranks of the numerous other Second Amendment challenges the Supreme Court has refused to hear. It remains unclear when the Court will choose to clarify the scope of Second Amendment protections, and despite a great deal of noisy debate on gun control, it is far from certain whether further gun regulations will be implemented on the state or federal level as mass shootings continue to occur.

The Second Amendment and Legislative "Protection" of Constitutional Rights

This column in yesterday's Des Moines Register by the Editorial Board caught my eye. It begins:

Is state Rep. Chip Baltimore clairvoyant?

The Boone Republican was arrested last week, charged with operating a motor vehicle while intoxicated and possession of a firearm while under the influence of alcohol. Interestingly, less than 10 months ago, he voted to support legislation reducing penalties for toting a gun while drunk. Lucky for him, that bill was signed into law.

According to a police report, Baltimore was stopped by an Ames officer early Friday morning after authorities received reports of a reckless driver traveling northbound on Interstate Highway 35. With his slurred speech and bloodshot eyes, he told the officer he was on his way home after attending meetings in Des Moines, the report said.

. . .  

Last legislative session, Baltimore was among the lawmakers who supported the Iowa Omnibus Gun Law.

Before this law went into effect, carrying a firearm while intoxicated was an aggravated misdemeanor, punishable by up to two years in prison. An OWI conviction provided clear grounds for revocation of a permit to carry a weapon.

The new law, which went into effect July 1, cuts in half potential jail time and allows drunken drivers the ability to keep their permits to carry handguns.

At the time, one Iowa sheriff questioned the change, baffled that state legislators recognized the danger of operating a vehicle while drunk but not carrying a lethal weapon while intoxicated.


“We know alcohol blurs judgment,” said Black Hawk County Sheriff Tony Thompson. “I’m not sure what the driving force was behind watering that down.”

The Register's earlier article reporting Baltimore's arrest is here. Notably, Baltimore was stopped when an officer observed him driving at 55 mph in a 70 mph zone entering a 65 mph zone. For those interested in DUI-related trivia (who isn't?), the National Highway Traffic Safety Administration states that driving at 10 miles or more below the speed limit is an indicator of possible impaired driving. The same is not true of speeding.

 

This story is my quirky introduction for a much broader discussion of misleading rhetoric regarding the "protection" of constitutional rights through legislation. For those only interested in the adventures and apparent foresight of Chip Baltimore (and accompanying DUI trivia), stop reading now!

Will Second Amendment Law Change Under Trump's Supreme Court?

One of President-Elect Donald Trump's priorities when appointing a Supreme Court Justice to replace Justice Scalia is to select a justice who will "defend the Second Amendment." Commentators forecast that Trump's nominee will be pro-Second Amendment, and Trump's post-election statements suggest that the Second Amendment will be a key factor he considers in appointing somebody to the Supreme Court.

Those who anticipate big changes in Second Amendment law may need to curb their enthusiasm for the moment. In order to expand Second Amendment protections in any significant way, the Court must first agree to hear a Second Amendment case. This is something the Supreme Court has been loathe to do, with Justice Scalia and Justice Thomas occasionally protesting the Court's refusal to take on cases involving gun restrictions.

If Trump manages to appoint somebody who is essentially identical to Justice Scalia, this will only leave Trump with two justices who have been willing to dissent from denials of certiorari in Second Amendment cases -- Justice Thomas and whoever replaces Justice Scalia. Perhaps Justice Alito can be added to this group based on his ideology and his recent opinion concurring in judgment in Caetano v. Massachusetts (although there is a difference between the decision to grant certiorari and the decision to write a separate decision concurring in judgment).

Even with three justices willing to grant certiorari in Second Amendment cases, Trump's Supreme Court would still fall short of the four justices necessary to get the Court to hear Second Amendment cases in the first place. For this reason, unless Trump has the opportunity to appoint an additional justice, it is unlikely that there will be any immediate, significant changes to Second Amendment law.

Lastly, to add a bit of political prediction nonsense to this post -- if defending the Second Amendment is indeed a priority for Trump and if he values taking a more middle-of-the road approach when appointing a Supreme Court Justice, I would bet that Judge Diane Sykes (currently on the Seventh Circuit Court of Appeals) would be Trump's choice. The most recent commentary I've seen (and predictions of others who probably pay more attention to this than me) suggests that Judge Sykes or Judge William Pryor (of the Eleventh Circuit) are the most likely nominees. Judge Sykes may be a less controversial choice than Judge Pryor and Judge Sykes has a positive track record when it comes to the Second Amendment. Those wondering about her stance on the issue should look no further than her opinion in United States v. Skoien, and her dissent to the en banc Seventh Circuit opinion in Skoien that overturned her earlier opinion.

The Second Amendment will be one of many issues to consider as Trump nominates a Supreme Court Justice. But however Trump's initial nomination turns out, I do not expect that the Supreme Court will take any cases that lead to any significant Second Amendment shifts. This will most likely be something to watch for if Trump has the chance to nominate a second justice.

Justice Willet: A Confirmation Hearing Outline

Via Howard Bashman's How Appealing, I learned of this excellent profile of Texas Supreme Court Justice Don Willett by Eric Benson. Since Donald Trump included Justice Willett on his short list of potential Supreme Court nominees back in May, there has been a decent amount of coverage from the fairly generic to the critical to the sensational. Benson's article thoroughly covers the story of Justice Willett's life and career before the Texas Supreme Court, some of his notable moments on the Court, and his activities beyond the judiciary, including his speaking at Federalist Society events and living up to his title as the Tweeter Laureate of Texas.

From Benson's article:

Social media sleuths had combed through @JusticeWillett’s feed and found such Trump-mocking gems as “We’ll rebuild the Death Star. It’ll be amazing, believe me. And the rebels will pay for it. —Darth Trump.” Within the day, the websites of outlets from the Dallas Morning News to People exploded with variations of the headline “9 times Texas Supreme Court Justice Don Willett dissed Donald Trump.” While some political commentators thought Willett’s tweets would make his ultimate selection by the thin-skinned Trump unlikely, the president-elect might well favor a judge prone to the occasional insult. But the attention garnered by Willett’s Twitter jabs obscured a more relevant fact: While the justice portrays himself on social media as little more than a flag-waving, pun-inclined good old boy, he is also a heavyweight of constitutional jurisprudence, one of the leading lights of a polarizing legal movement that has upended the long-sacrosanct conservative doctrine of “judicial restraint,” the mantra of Scalia and Robert Bork.

In a series of high-profile opinions over the past half-decade, Willett has mapped out the contours of this position, championing what libertarian attorney Chip Mellor termed “judicial engagement,” a more aggressive approach to reviewing (and sometimes declaring unconstitutional) government regulations, particularly those that relate to economic and property rights.

I began following Justice Willett on Twitter a while ago, and it is a decision I do not regret. Justice Willett's tweets are often humorous and informative. While Justice Willett's tweets are almost all whimsical, he does not hide his enthusiasm for judicial restraint.

I urge readers to read Benson's full article on Justice Willett. As for the remainder of this post...in the event that Justice Willett is indeed selected as a judicial nominee, whether for the Supreme Court or for another federal judgeship, senators will need to think up questions to ask at the confirmation hearing. Clever senators should approach the hearing as any good lawyer approaches questioning a witness at trial: they should ask questions knowing what the answer will be -- or what the answer ought to be.

With this in mind, here is a list of possible questions senators may ask, along with Justice Willett's paper Twitter trail that shows what his answers had better be:

As a Supreme Court Justice (or federal judge) would you be willing to expand the Supreme Court's previous decisions that expanded the definition of marriage?

I could support recognizing a constitutional right to marry bacon. pic.twitter.com/HKPW6tE4H6

— Justice Don Willett (@JusticeWillett) April 30, 2015

As a Supreme Court Justice (or federal judge) will you legislate from the bench?

When it comes to legislating from the bench—I literally can't even.

— Justice Don Willett (@JusticeWillett) September 10, 2014

Do you anticipate that you would ever engage in any form of judicial activism should you be appointed to the Court?

My wife's favorite type of judicial activism. pic.twitter.com/EQcijk5jpW

— Justice Don Willett (@JusticeWillett) November 10, 2016

How will you approach discussions with other justices (or judges) who do not agree with your views on a case?

Text from Court colleague—"I must dissent from your opinion."

Me—"New phone. Who dis?"

pic.twitter.com/4Ai31PrSXD

— Justice Don Willett (@JusticeWillett) November 12, 2016

(Here's a non-tongue-in-cheek question, just for fun): Does your inclusion of "#SCOTUS" in this tweet indicate that you would vote in favor of granting certiorari to this case or to a similar case?

BREAKING—9th Cir. says there's no 2A right for the general public to carry concealed firearms in public. ⚖ #SCOTUShttps://t.co/OoIEcAvvma

— Justice Don Willett (@JusticeWillett) June 9, 2016

What approach will you take toward oral argument?

"That idea is just . . . the worst."

—Vitruvius ("Lego Movie")

Need to work that into oral argument this Term. pic.twitter.com/seE5iTIvO5

— Justice Don Willett (@JusticeWillett) August 11, 2014

What is that on your sleeve?

New cufflinks for a new Term. #SCOTX #txlege pic.twitter.com/CJ25eJ9NsB

— Justice Don Willett (@JusticeWillett) September 1, 2015

To the numerous United States Senators out there who I am sure read this blog on a daily basis: You're welcome.