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Saturday, June 28, 2008
"Pledges of Centrism":
The Chicago Tribune runs a story under the headline, "Roberts' record on high court defies '05 pledges of centrism":
Despite pledges during his 2005 confirmation hearing to hew to judicial centrism, Roberts has shown himself to be a reliable member of the Supreme Court's right flank—rarely, if ever, disagreeing with its positions on civil rights, gun control, the death penalty, affirmative action and a host of other issues.
That may come as no surprise to those who paid close attention to Roberts' career before his elevation to the high court, but the picture is at odds with the non-ideological face he presented after his nomination.
"I come before this committee with no agenda, no platform," Roberts told the Senate Judiciary Committee in 2005. "I will approach every case with an open mind."
Roberts branded himself then a judicial "umpire" who called the balls and strikes as he saw them, without reference to ideology.
"Some people will like what Roberts has done and some people will be upset about it, but it is hard to describe it as the work of a 'neutral umpire,'" said Christopher Eisgruber, a professor at Princeton University and an expert on the court appointments process....
In his three years on the court, Roberts has never sided with the more liberal members against his conservative brethren in a close case. He's never been that uncertain, critical fifth vote. That role has been played almost exclusively by Justice Anthony Kennedy....
The one thing conspicuously missing from the story is any actual pledge of centrism. A pledge of centrism, or a pledge to view the world more like Justices Kennedy or O'Connor rather than like Justices Scalia or Thomas, actually would be an agenda or a platform. (Some politicians actually run on a centrist platform and with a centrist agenda.)
Pledges to keep an "open mind," to be a "neutral umpire," and to lack an "agenda" or a "platform" aren't terribly meaningful pledges -- but what they pledge is a certain open-mindedness and lack of an overarching grand plan. They don't pledge a centrist ideology, or centrist results, or even a jurisprudence that is likely to reach centrist results.
The fact is that Justices, being mature professionals who have spent decades thinking about many legal issues, are likely to have certain views about the law. They may and should pledge to keep an open mind, in the sense of a willingness to listen to and consider contrary arguments. They may and should pledge to be neutral umpires, in the sense of deciding matters based on what they see as the proper neutral principles. But such pledges aren't pledges of centrism.
Justice Brennan, I suspect, tried to keep an open mind and be a neutral umpire; so does Chief Justice Roberts. That they reach very different results simply reflects the fact that open-mindedness and attempt at neutral decisionmaking doesn't equal either judicial liberalism, centrism, or conservatism.
Thanks to How Appealing for the pointer.
What is the right protected in the Heller dissent?
Justice Stevens' dissent in Heller begins by acknowledging that the Second Amendment protects an individual right. The rest of the dissent critiques Justice Scalia's arguments for construing the individual right according to the Standard Model of the Second Amendment. I have not yet studied the Stevens dissent in depth, but on my initial read, I was confused as what exactly is the scope of the individual right that Justice Stevens thinks the Second Amendment does protect?
The Brady Center's amicus brief did present a coherent description of a very narrow individual right protected by the Second Amendment. For the D.C. brief, in contrast, it was hard to figure out what the D.C. lawyers thought the Second Amendment did mean.
I think that one of the greatest weakness of the alternatives (narrow individual right, collective right, states' right) to the Standard Model has been that the non-Standard proponents have had a difficult time articulating what their theories mean, and an even more difficult time explaining how their theories might be applied. In my own view, the reason for the weakness of the alternative theories is that they are not really alternative theories at all; they have just been a continuing repackaing of efforts to deny the validity of the Standard Model.
So I encourage commenters who have had the time to study the Stevens dissent carefully to describe the individual right that the Stevens version of the Second Amendment would protect. Further, if the Stevens individual right model were correct, what would be the practical applications of that right?
Seattle Sonics Trial:
I hadn't realized that a lawsuit just started between the city of Seattle and the Sonics (no longer "Super," right?). I don't know much about the case, but it looks like there are some interesting contract law issues in the case so I flag it for those who are interested. The Sports Economist has a number of posts on the developments in the trial and The Sports Law blog provides an overview of the theory of the case here.
However it turns out, this may be a good subject for a law review note topic.
"Poorer, Older, and Dumber":
Chester Finn on Ohio's economic decline:
Once known as the Mother of Presidents, Ohio is now getting poorer, older and dumber – and making all the wrong moves to reverse the situation. . . .
Ohio already has the fifth-heaviest state and local tax burden in the country (up from 30th in 1990) and finds itself stagnating. Its unemployment rate, 6.3%, is above the national rate of 5.5%, even as the state's work force shrinks as people emigrate. Ohio's median household income is also falling – in 2006 it was $44,500, down 0.5% from the previous year – while the national figure ($48,500) was up 1.6%. During the closing decades of the 20th century, incomes rose twice as fast across the country as in Ohio. . . .
Any sane strategy for turning this around would start by strengthening the state's human capital for a globalized, knowledge-based economy while making Ohio more hospitable to high-tech and brain-powered firms. . . .
In both the public and private sectors, what one witnesses in Ohio are the most senior employees clinging to what's left of the economy, fending off change, demanding ever more burdensome contracts and costlier benefits. The ship is slowly sinking, but as the more agile passengers and crew take to the lifeboats and sail off, those who remain on board climb to the upper decks, determined to grab whatever plunder they can, confident that the rising waters won't reach them.
Why the War on Drugs is Bad for Family Values:
Social conservatives have, with some justification, long warned of the dangers of single-parenthood among the poor, which often leads to poor outcomes for children. However, some of those same social conservatives are also staunch supporters of the War on Drugs. Unfortunately, as Kerry Howley points out in a recent LA Times debate with Kay Hymowitz, the War on Drugs is a major contributor to the prevalence of fatherless children in poor black communities:
[C]hildren tend to do better when they're raised by two biological parents, along a variety of dimensions and controlling for all sorts of factors. It was always a mistake to deny that fact in the service of some larger political crusade.
Still, I'm not sure where blindly repeating "two parents are ideal" gets us. I have yet to meet a single mother who doesn't want help. The low-income single women in "Promises I Can Keep," the study of poor mothers I referenced during our pregnancy pact discussion, hope upon hope for a worthy partner to come along....
For low-income black women, the world really isn't cooperating. We put an awful lot of nonviolent black men behind bars, which is not generally conducive to good fathering. With so many young men absent, the marriage markets are heavily skewed against women, and mothers who might otherwise demand that men stay home and change diapers find themselves in a miserable bargaining position. In his book "The Logic of Life," Tim Harford describes one study indicating that "a one-percentage- point increase in the proportion of young black men in prison reduces the proportion of young black women who have ever been married by three percentage points." Now consider: In New Mexico, 30% of black men between 30 and 35 are in prison. Telling women to want marriage more just doesn't seem like an effective strategy here. Nor does it seem right to suggest that they ought not to have children at all; these women are simply responding rationally to the world as it is.
As I have noted in the past (here and here), some 55% of US federal prison inmates and 21% of state inmates are non-violent drug offenders. And over 62% of incarcerated nonviolent drug offenders are black(most of them poor black males). I don't claim that this racial disparity in drug incarceration is caused solely - or even primarily - by racial prejudice. But even if undertaken for the best of motives, it drastically reduces the available pool of marriageable men in poor black communities. And, as Kerry notes, those men who remain have far less incentive to marry because their stronger bargaining position caused by scarcity makes it easier for them to obtain sex without making any longterm commitment to the women they do it with. Even after drug offenders are released from prison, they are likely to be worse marriage prospects than before, if only because it's hard to get a steady job after being in prison for several years.
Some conservatives might argue that the kinds of men who get arrested for drug possession or dealing wouldn't make good husbands even if they stay out of prison. Perhaps that is true in some cases. But these men still probably beat the alternative of single parenthood. Moreover, Kerry's point about bargaining position is crucial here. If fewer men from these communities were in prison, there would be more competition between them in the dating market and thus stronger incentives for them to behave in ways that appeal to women. To the extent that women prefer men who don't get high to those who do, that might well include staying off the drugs - as well as becoming better providers and fathers in other ways.
UPDATE: Some commenters question the implicit assumptions of Kerry's and my bargaining position point: that many men would like to gain access to sex without making a longterm commitment, while most women prefer men who are willing to make such commitments. All I can say is that both points are backed by extensive social science evidence - far too much to summarize here. Promises I Can Keep, the book cited by Kerry, is among the studies that shows that most low-income women prefer men who will be good longterm providers. John Marshall Townsend's book What Women Want, What Men Want, provides further extensive evidence on both male and female preferences on these points. And Tim Harford's book, also cited by Kerry, provides evidence showing that marriage rates do indeed decline in communities where more men are imprisoned, suggesting that men and women respond to incentives in the way the post posits.
The point is not that men are less "moral" than women. Rather, the two sexes are responding to different incentives. Men can gain a reproductive advantage from casual sex without commitment because one man can impregnate a large number of women. Women, for obvious reasons, can't do this (because the number of pregnancies they can have is relatively fixed, regardless of how much casual sex they have). Therefore, men, on average, have a stronger interest in casual sex without commitment than women do. At the same time, they are willing to restrain such behavior and make longterm commitments if women are in a strong enough bargaining position to insist that they do so. None of these points apply to all men and all women all the time. But they do identify important general tendencies.
Obama and Heller:
While Barack Obama appeared to endorse the Supreme Court's Heller decision in the statement he released on Thursday, at other times he defended the constitutionality of D.C.'s gun ban. This leaves the Washington Post's Howard Kurtz a bit befuddled.
Barack Obama is under hostile fire for changing his position on the D.C. gun ban.
Oh, I'm sorry. He didn't change his position, apparently. He reworded a clumsy statement.
That, at least, is what his campaign is saying. . . .
Regardless of what you think of the merits of yesterday's Supreme Court ruling overturning the capital's handgun law, it seems to me we're entitled to a clear position by the presumed Democratic nominee. And I'm a bit confused about how the confusion came about.
Here's how the Illinois senator handled the issue with the Chicago Tribune just last November:
"The campaign of Democratic presidential hopeful Barack Obama said that he ' . . . believes that we can recognize and respect the rights of law-abiding gun owners and the right of local communities to enact common sense laws to combat violence and save lives. Obama believes the D.C. handgun law is constitutional.' "
Kind of a flat statement.
And here's what ABC reported yesterday: " 'That statement was obviously an inartful attempt to explain the Senator's consistent position,' Obama spokesman Bill Burton tells ABC News."
Inartful indeed.
Were the Opinions in Heller "Scholarly"?:
I said yes. Sandy Levinson at Balkinizationsays no, and suggests we are living in "parallel universes." More likely, we are using different standards, and perhaps different definitions of the word "scholarly."
Sandy seems define a scholarly Supreme Court opinion on a historical subject as one in which a Justice approaches the subject matter like an objective scholar, say a historian writing his Ph.D. thesis. That does comport with one definition of "scholarly," but given that Supreme Court Justices are not trained as historians but as advocates (lawyers), and don't have the resources to engage in original, objective historical scholarship while a case is pending even if they wanted to, or even to properly critique the existing literature, I think this is a bit much to ask.
(And yes, the fact that this is a bit much to ask suggests a weakness in originalism; indeed, any theory of constitutional interpretation that requires Justices to consider outside scholarship of any sort is going to be problematic in that (a) the Justices won't be trained in the relevant field; (b) knowledge is not static, and it's problematic to rely on a study done yesterday when a study published tomorrow may completely revise everyone's understanding of the subject; (c) the field itself may not be peopled by "objective" scholars, but by people with an ideological or other bias--there are certainly plenty of those in the field of history; and (d)the Justices will be sorely tempted to pick and choose which studies they wish to rely on.)
Anyway, I was using "scholarly" in the sense of "concerned with academic learning and research." By contrast, in past decades when the Supreme Court considered historical matters, the Justices often, not to put to fine a point on it, simply issued unsupported broad, often assertions for which they gave no relevant supporting citations, and which just so happened to support they outcome they wanted. I gave one example in my previous post, and here's another. In Goldberg v. Kelly, deciding that welfare benefits were a property right subject to procedural due process requirements, the Court made the ridiculous (and highly unscholarly) claim that "since its founding, the nation's basic commitment has been to foster the dignity and well-being of all persons within its border." Tell that to the Cherokees, and to the slaves!
If I Ran The Zoo:
The National Association of Scholars has a bunch of posts on "If I Ran the Zoo" of the modern university. The take is based on the Dr. Seuss book of the same name, with the idea being what changes each of us would make to the university if we "ran the zoo." My contribution is here. Many of the other contributions are much closer in spirit to the whimsy and cleverness of Seuss than mine. George Leef's contribution is especially Seussian.
Some Dudes in Trouble at Colorado College:
This parody of this newsletter has led to this result at Colorado College.
What the controversy really illustrates is the absurdity of campus speech codes, which as content-based restrictions on speech simply will not be applied equally. So you get the absurd sorts of results that we see in this case. The "Monthly Rag" refers to male castration. The "Monthly Bag" happens to refer to a sniper rifle and sex in the same publication--not together, but as an obvious parody of "guy stuff." The former is apparently ok. The latter was "received as a threat by members of the Colorado College community."
The college president sent out a flash email requesting the dudes to come forward. As a result of all of this, the "dudes" have been found "responsible for violating the student code of conduct policy on violence under the college value of Respect."
Check out this letter from the Colorado College Dean of Students, a classic illustration of Deanspeak. The Dean has given the dudes an opportunity to abase themselves publicly through a "forum for a dialogue about the issues and questions... raised with the posting of 'The Monthly Bag.'" The Dean adds, "Please make sure that this forum happens before the end of Block 8." Apparently the Colorado College Board of Trustees has already wimped out on standing up for free speech.
Wouldn't it be better just to repeal these speech codes and adopt the First Amendment as the governing standard for speech on college campuses? "The Monthly Bag" would be obviously protected speech under the First Amendment (as would "The Monthly Rag," of course). The chilling effect of these sorts of incidents and the consistent pattern of their unequal application is manifest. And it seems to work just fine for public universities.
The indefatigable FIRE is on the case.
Via Phi Beta Cons.
Reason Symposium on Heller:
Reason magazine has an interesting symposium on DC v. Heller, featuring several leading experts on gun rights including my GMU colleague Joyce Malcolm and the VC's own David Kopel and Randy Barnett. Significantly, most of the symposium participants agree that the true impact of Heller will largely be determined in follow-up litigation that will decide the scope of the individual right to bear arms declared by the Court. As I explained in this post, a narrowly defined constitutional right may not be much different from no right at all.
Why Campaign Finance Laws are Likely to be Incumbent-Protection Laws:
Election law scholar Rick Pildes has two excellent posts explaining why the "Millionaires Amendment," which the Supreme Court struck down on Thursday was
probably enacted by Congress for the purpose of protecting incumbent legislators against challengers (see here and here). As Pildes explains, laws restricting the ability of independently wealthy candidates to spend their own money on their campaigns benefits incumbents because they usually have much better access to other sources of funding than challengers do. Thus, even independently wealthy incumbents rarely need to spend their own money on reelection campaigns. By contrast, thanks to the existence of laws restricting the amounts which people can contribute to the campaigns of others, independently wealthy challengers spending their own money are "[e]very incumbent's nightmare" because they can spend a lot more than challengers who must rely on difficult-to-raise outside contributions. Pildes compiles some impressive evidence (including statements by John McCain) indicating that Congress inserted the Millionaires Amendment into the McCain-Feingold Act for the specific purpose of reducing the risk of their own defeat.
I. Legislators' Incentives to Enact Incumbent-Protection Laws.
However, Pildes seems to believe that the Millionaires Amendment is at least somewhat exceptional, and that many if not most other campaign finance laws might promote political competition rather than undermining it. I find that conclusion implausible. After all, campaign finance laws can only be enacted if they have the support of incumbent legislators. And incumbents have very strong incentives to support "reforms" that entrench them against potential challengers and oppose any reforms that might make the challengers' task easier. Even if - in the abstract - it is possible to design a system of campaign finance regulation that creates a better electoral process than that which would exist in the absence of regulation, it is highly unlikely that real-world legislators would vote for such a system. Instead, they are likely to support reforms that entrench incumbents and oppose any that might have the opposite effect.
Allowing incumbent legislators to write campaign finance laws is somewhat like appointing a committee of wolves to develop new security arrangements for chicken coops. Even if the current security system is flawed, the wolves will probably make it worse rather than better. After all, the wolves' main interest is ensuring their own ability to gobble up the chickens, a goal that would be frustrated by the installation of better security measures.
II. How Political Ignorance Exacerbates the Problem.
Pildes might argue that this danger can be defused by attentive voters. If voters pay close attention to the details of campaign finance laws and punish those legislators who vote for incumbent-entrenching proposals, Congress might have an incentive to promote "good" reform laws and abjure policies like the Millionaires' Amendment. Unfortunately, we know that most citizens have little or no knowledge of politics and public policy and that it is actually rational for them to remain ignorant. It is highly unlikely that any but a tiny fraction of Americans have the kind of detailed knowledge of campaign finance law necessary to be able to tell the difference between potentially beneficial reforms and incumbent-protection scams. Thus, it should be easy for incumbents to dress up laws that handicap challengers as public-spirited efforts to "take money out of politics." The "Millionaires' Amendment" itself is probably an example of this. After all, it looks superficially like an attempt to diminish the political influence of the wealthy for the benefit of the poor and middle class, and was sold that way to the public.
If voters were knowledgeable enough to tell the difference between "good" campaign finance laws and Trojan horses that benefit incumbents, there would probably be no need to worry about campaign finance in the first place. After all, a knowledgeable and attentive electorate could easily learn about the candidates and their policies from sources other than the candidates' 30 second sound bites and ads. For example, they could read newspaper reports, academic studies on the merits of opposing policy proposals, magazine articles, and so on. Campaign finance only matters because most voters are ignorant, and don't pay much attention to politics - thereby turning campaign ads into important sources of information because they are among the few such sources that many voters will actually see. But that very ignorance makes it highly unlikely that voters will know enough to punish politicians who enact incumbent-protecting campaign finance reforms. Related Posts (on one page): - Rick Pildes on The Danger of Incumbent-Protecting Campaign Finance Laws:
- Why Campaign Finance Laws are Likely to be Incumbent-Protection Laws:
Friday, June 27, 2008
Originalism after Heller:
My point yesterday that we're all originalists after Heller is more limited than Orin understandably takes it to be. Orin is right that none of the justices is completely faithful to originalist approaches to constitutional interpretation. Justice Thomas comes the closest, but even he strays. As I noted in my post yesterday, and as Orin comments, non-originalist precedents are a particular barrier for many originalists. That's especially so for the "faint-hearted" kind who think there is some independent value in respecting precedent.
What's interesting about Heller is precisely that it called on the justices to make decisions about a matter of important constitutional text in the absence of controlling precedent, that is, it called on them to write on a clean slate. There could be no retreat to precedents (though Stevens did make some effort at this). So what could be the basis for decision? Where would the justices turn as a matter of first principles?
Orin answers: "In that setting, it seems inevitable that both sides would focus a lot on originalist claims. . . You would expect the legal opinions to battle over the only available legal ground to fight." But was it really so inevitable? Was originalism really the only available legal ground?
That Orin and I think it obvious and inevitable that the justices should as a matter of interpretive principle concentrate so heavily on what commentators, dictionaries and other usages of the 18th century had to say about phrases like "keep arms," "bear arms," "the people," and the "militia," may only indicate that he and I have bought very much into this method. But the fact that not just Orin and I, but also every justice on the Court, in this rare and pristine constitutional moment, grasped for originalism as at least a cover for their views indicates that something more profound has happened in our constitutional culture.
Not so long ago, perhaps as recently as 20 years ago, there would have been a large and dominant body of opinion in the academy and in the judiciary for the view that such sources were stultifying, antiquated, crabbed, wooden, and anachronistic. Why care what these dead men thought when there has been so much empirical learning about gun-control policy, about its effects on crime, accidents, and death rates?
Originalism would not have been seen as the only available ground, or even the main ground, on which to fight. Yes, the justices might have made some sweeping observations about the Declaration of Independence, or about antiquated musket-bearing militia members. That's characteristic of the opinions of the era. But would we really have had the extensive and detailed originalist engagement we saw between Scalia and Stevens yesterday? I suspect, instead, that the majority and dissenting opinions of a Supreme Court from the 1940s to the 1980s in this same case would have looked much more like Justice Breyer's opinion. Some justices would have agreed with his conclusions and cited studies about the need for these laws, some would not have agreed and would have cited counter-studies and statistics, and others would simply have urged deference to the democratic process.
I am not necessarily saying that the justices did especially well in their deployment of originalist sources yesterday. Sandy Levinson, for one, thinks the originalism in the Heller opinions was very shoddy "law-office history." (See his posts here and especially here) Based on my limited reading of the matter, I agree with Orin that Justice Scalia got the better of the argument, or at least that he reached the better originalist conclusion. But others are far more qualified to make judgments about the history of the Second Amendment.
And it is certainly true, as Orin suggests, that the justices will issue many more opinions in the coming years in which originalism is barely mentioned, as in the campaign-speech decision yesterday. But this doesn't really go to my point about the ascendance of originalism, since in many other constitutional contexts we do have an overlay of thick constitutional law (precedents) that even originalists feel they must grapple with. The First Amendment, where precedent is especially well developed, is the most notorious example of this. None of the justices is really an originalist when it comes to the freedom of speech. Aside from the beautiful and stirring rhetoric of Justices Holmes and Brandeis about the supposed libertarian speech ideals of "those who fought for our independence," originalism has played no role to speak of in the development of free-speech doctrine. The ascendance of originalism isn't likely to change that at this late date.
I don't claim that we're all good originalists, or that we're consistent originalists, or that we're originalists forsaking all others. I am not even saying that the dissenting justices really believe in originalism as a methodology. I don't know whether they do. But even if they don't, the fact that the legal culture has developed to the point where they believe it must be engaged in a landmark case, and indeed must be a focus of a lengthy dissenting opinion in which they all join, is itself significant.
This originalist to-and-fro happens more and more across many constitutional contexts, even where there are precedents and policy considerations on point. Yesterday was simply the most crystalline example of this trend toward respect for a methodology that in living memory was greeted with guffaws. That's really all I mean when I say, "We're all originalists now."
What Does Heller Say About Originalism?:
A number of commentators (including my co-bloggers) have pointed out that both sides in Heller took an originalist approach to whether the Second Amendment guarantees an individual right. Does this mean that originalism is on the rise? That we are all originalists now, as Dale suggests? I'm not so sure. In Heller, there were essentially no precedents on the books, and there were plausible originalist arguments on both sides. (I think the majority's view was more persuasive, to be clear, but I think the dissent's was at least plausible.) In that setting, it seems inevitable that both sides would focus a lot on originalist claims. If the original public meaning is up in the air, and there isn't much else to go on among accepted legal materials, you would expect the legal opinions to battle over the only available legal ground to fight. The hard question is what happens as precedents accumulate, and the pool of accepted judicial authorities therefore expands. Judges and Justices soon can pick and choose from among the accepted authorities, and after awhile originalism becomes just one of the many possible tools out there. Even originalist arguments often become only partial originalist claims in that settting. That is, an judge purporting to make an originalist claim will often accept some of the precedents in the area as inviolate and will then make an originalist claim only within a narrowed scope that is still considered unsettled (an approach Justice Thomas took in his Rothgery dissent this week --more on that later). If you're an originalist, the real challenge is pushing judges to rely on original public meaning when it's not the only game in town. Otherwise you'll have pockets of originalism and no more. So you might have a 5-4 battle over original public meaning in Heller , but on the same day the Court will hand down a 5-4 battle over campaign finance in Davis v. FEC in which none of the Justices assert any originalist arguments. Related Posts (on one page): - Originalism after Heller:
- What Does Heller Say About Originalism?:
Liberal and Conservative Justices on Individual Rights:
The Supreme Court's decision in District of Columbia v. Heller, upholding the Second Amendment right of individuals to own firearms, should finally lay to rest the widespread myth that the defining difference between liberal and conservative justices is that the former support "individual rights" and "civil liberties," while the latter routinely defer to government assertions of authority. The Heller dissent presents the remarkable spectacle of four liberal Supreme Court justices tying themselves into an intellectual knot to narrow the protections the Bill of Rights provides.
Or perhaps it's not as remarkable as we've been led to think.
So begins my opinion piece published at Cato.org. I then discuss areas in which the conservative Justices have taken a broader view of individual rights than the liberal Justices--commercial speech, expressive association, election-related speech, property rights, racial preferences, free exercise of religion, "hate speech"--and conclude:
There are many ideological differences between the conservative and liberal justices on the Supreme Court. But a consistent, stronger liberal devotion to supporting individual rights and civil liberties against assertions of government power isn't one of them.
Three articles on Heller
Miller, Colt 45s, and Natural Law. Scotusblog. This article for the "Heller Discussion Board" provides a brief overview of Brian Frye's excellent article on Miller, which was cited by Justice Scalia. Next, the article says that DC's ban on all self-loading rifles and handguns is almost certainly unconstitutional under the Heller test. Finally, the article discusses the presence of natural law in the Heller opinion, and suggests that the strong judicial affirmation of the natural law right of self-defense may, in the long run, have significant global effects.
Over at ReasonOnline, I argue against the complaints of libertarians who complain that Heller did not go far enough. I analogize Heller to the initial Supreme Court decisions in the 1930s which began to enforce Equal Protection and the First Amendment. It would be unrealistic to expect a 1934 court to enforce those rights in a maximalist way, without the foundation of decades of doctrinal development. The same point applies to the Court's new jurisprudence of Second Amendment enforcement.
Conservative Activists Key to DC Handgun Decision is my article for Human Events. This article is not about EJ Dionne's unfounded complaints about "judicial activism." It's about the influence of citizen activists who made helped ensure that handgun prohibition remained rare in the U.S., and that a sufficient number of Supreme Court Justices were appointed by Presidents who agreed with the Standard Model of the Second Amendment.
Heller and incorporation of the Second Amendment:
Along with many others, I noted yesterday that the Supreme Court expressly left open the question whether the individual right to keep and bear arms in the Second Amendment should be incorporated into the Fourteenth Amendment to apply against the states. Here is the relevant passage reserving the issue:
With respect to [the nineteenth-century case of U.S. v.] Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois (1886) and Miller v. Texas (1894) reaffirmed that the Second Amendment applies only to the Federal Government.
Op. at 48 n. 23.
The footnote is a whipsaw; it reads like one person originally wrote the first line and, seeing it, another came along and insisted on adding the second. The first sentence suggests that just as Cruikshank was wrong (and under-theorized) on First Amendment incorporation it was also wrong (and under-theorized) on Second Amendment incorporation. But the second sentence notes two post-Cruikshank opinions confirming that the Second Amendment limits only federal power. There's been some speculation that Justice Scalia may not have had five votes for a more unequivocal pro-incorporation statement. The generally more cautious, incrementalist, and minimalist tendencies of Chief Justice Roberts may have prevailed here, as did minimalism on other important questions the Court avoided (noted in a post yesterday by Orin).
Nevertheless, on re-reading the decision, I noticed a passage that seems relevant to future litigation on the incorporation question. In the middle of his review of post-Civil War enactments, Justice Scalia highlights the importance to the newly freed slaves of the right to keep and bear arms in the home. He also reviews how federal authorities took steps to prevent vengeful and racist southern legislators from infringing this right. Mike O'Shea at Concurring Opinions also points to this discussion as significant on the incorporation issue. It is, as he notes, exactly the kind of evidence that scholars have relied upon to support incorporation.
Especially significant are these sentences from Heller discussing congressional understanding of the Civil Rights Act of 1871 and the Fourteenth Amendment:
Similar discussion attended the passage of the Civil
Rights Act of 1871 and the Fourteenth Amendment. For
example, Representative Butler said of the Act: “Section
eight is intended to enforce the well-known constitutional
provision guaranteeing the right of the citizen to ‘keep and
bear arms,’ and provides that whoever shall take away, by
force or violence, or by threats and intimidation, the arms
and weapons which any person may have for his defense,
shall be deemed guilty of larceny of the same.” H. R. Rep.
No. 37, 41st Cong., 3d Sess., pp. 7–8 (1871). With respect
to the proposed Amendment, Senator Pomeroy described
as one of the three “indispensable” “safeguards of liberty
. . . under the Constitution” a man’s “right to bear arms for
the defense of himself and family and his homestead.” Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative
Nye thought the Fourteenth Amendment unnecessary
because “[a]s citizens of the United States [blacks]
have equal right to protection, and to keep and bear arms
for self-defense.” Id., at 1073 (1866). It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual
right to use arms for self-defense.
Op. at 43-44.
Interestingly, the quote from Rep. Nye supports incorporation through the Citizenship Clause, rather than through due process, though Nye himself believed blacks already enjoyed the right in common with all citizens. The right to keep and bear arms for self-defense could be considered an implicit and indispensable aspect of "citizenship" protected by the first sentence of the Amendment. Others might argue that the right is a privilege or immunity protected against state intrusion.
Add to all of this the fact that the Court repeatedly compares the incorporated First Amendment to the unincorporated Second Amendment as a guarantee of important individual rights. A court that believes the Second Amendment is comparable to the hallowed First Amendment is unlikely to leave protection of the right to the mercy of legislative majorities in states and cities.
Whichever specific route the lower courts now choose — the Citizenship Clause, the Privileges and Immunities Clause, the Due Process Clause — it seems the Supreme Court is providing a road map and is strongly suggesting that the ultimate destination is incorporation. Related Posts (on one page): - Supreme Court Cites Lysander Spooner!:
- Heller and incorporation of the Second Amendment:
Supreme Court Adopts Individual Rights Interpretation of the Ninth Amendment:!
Buried in Justice Scalia's exegesis on the Second Amendment is a wonderful gift to those of us who study and care about the Ninth Amendment: The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.
Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right. In other words, the Supreme Court has now rejected the "collective rights" reading of the Ninth Amendment that has been put forth by Akhil Amar and Kurt Lash. Justice Scalia adds the following footnote that deals with an example used by both to justify a collective rights model of the Bill of Rights: JUSTICE STEVENS is of course correct . . . that the right to assemble cannot be exercised alone, but it is still an individual right, and not one conditioned upon membership in some defined “assembly,” as he contends the right to bear arms is conditioned upon membership in a defined militia. And JUSTICE STEVENS is dead wrong to think that the right to petition is “primarily collective in nature.” Given how rarely the Supreme Court ever mentions the Ninth Amendment, this is big!
Did Justice Ginsburg Repeatedly Fall Asleep During Yesterday’s Session of the Supreme Court?--
Here is part of Tony Mauro’s account of yesterday’s session of the US Supreme Court:
When Scalia was reading his own opinion Stevens occasionally shook his head in disbelief. And Stevens jousted back. With emphasis on the word "genuine," Stevens said that "a genuine judicial conservative" would not have inserted the Court into the "political thicket" of the gun rights debate as Scalia had done.
Through it all, the rest of the Court seemed either calm or exhausted on this, the final session of the Court's term before it adjourned for the summer. Wakefulness escaped Justice Ruth Bader Ginsburg repeatedly throughout the Scalia-Stevens confrontation, and Justices Stephen Breyer and David Souter seemed to be struggling to stay awake at times as well. In fact Stevens, age 88, seemed to be the only dissenter with any spark or vigor. Chief Justice John Roberts Jr. smiled broadly as he opened the session, and Justce Clarence Thomas, who often seems bored or disengaged on the bench, seemed unusually animated.
Am I reading Mauro correctly? Did Justice Ginsburg “repeatedly” fall asleep on the bench during yesterday’s session of the Supreme Court?
To reduce the strain on our increasingly elderly Court, might we consider term limits?
Steve Calabresi and my article on this issue can be downloaded from the bottom of this SSRN page.
UPDATE: If 18-year term limits had been instituted long ago, half the Court (all of them Republican appointees) would already be gone and Justice Thomas would be stepping down next year. Justice Ginsburg would be serving for 3 more years.
The idea is not that most justices are unable to do their work (though in recent decades perhaps a quarter of them have been unable to do their work competently during their last year on the Court). And the oldest justice, Stevens, is reportedly in excellent physical and mental health; if I were Justice Stevens, I'd keep going to set the record.
The question of when to retire is one that each justice should make for himself (or herself) based mostly on personal preferences. But the question for designers of a judicial system is what patterns of tenure lead to the best Court. The point should be to get a Court filled with justices at or near their peak in performance.
2d UPDATE: I had no idea that Justice Ginsburg had fallen asleep on the bench before -- indeed, fallen asleep during argument — and that the mainstream press failed to mention it, just as the press covered up some of the sleeping on the bench and mental confusion of some elderly justices in the late 1980s.
New Process for Internet Top-Level Domains:
It's not the sexiest issue around, I realize, but the new proposal that the Internet Corporation for Assigned Names & Numbers (ICANN) has approved, for opening up the space of top-level domains, is an important little moment in Internet history, and should be recorded as such so that the historians of the future don't think we were all oblivious to what was going on. [See the NY Times story here, and AP's here; ICANN's discussion of the new proposal can be found here] When ICANN first took over the Net's domain name system in 1998, a lot of us called for it to do something along these very lines, but better late than never. Our reasoning went something like this: The original top-level domains (.com, .org, .edu, .mil, .int, .gov, .net) were chosen, back in 1984, for no real reason at all; Jon Postel, who was basically in charge of the net's naming and numbering systems from its inception until ICANN took over, more-or-less picked them out of a hat, having no idea (in 1984!) what this "Internet" thing would become down the road or why you'd ever need more than 7. There were (and are) NO technical reasons for having only 7 (or 11, or 14, or 278, or any specific number) top-level domains; the naming architecture was built to allow an almost infinite number of TLDs (another one of the truly brilliant scaling mechanisms built into the network that has allowed it to become "the Internet").
Opening up TLD-space is a really good idea -- though not because we necessarily need more TLDs. Personally, I don't really care whether there's an .XXX, or .stuff, or .oldtimeradio, or .Postfamily, or .university, etc. available. Maybe that'll make the Internet a richer, more interesting Internet, as people find new ways to manipulate and utilize this new structure; maybe it won't. No, opening up TLD-space is a good idea because the scarcity was entirely artificial, a means for maintaining a stranglehold over critical Internet resources (domain names). Artificial scarcity is generally speaking a bad thing; people manipulate it to make things valuable that have no inherent value (like domain names); we call the people who maintain artificial scarcity in valuable goods "monopolists," and we don't like them -- for damned good reasons.
Islamic Agreements in American Courts:
An interesting dispute litigated in a Texas appellate court (partial dissent here) having to do with "a Mahr[, which] is an Islamic religious custom whereby the husband contracts to give the wife a sum of money, either at the time of the marriage or deferred in the event of a divorce." Some of the most interesting arguments -- "those regarding the Establishment Clause, public policy, and Islamic law" -- were found to be waived, and the decision rested on fairly technical questions. Still, it might give one a sense of the kinds of cases that are likely being litigated elsewhere, and are likely to be litigated in the future.
As I mentioned before, I think the right approach for the American legal system is to simply enforce these contracts as written, without regard to their religious character. Some such contracts might be unenforceable because they are supposedly substantively or procedurally "unconscionable" (a pretty hard standard to meet), or because they are somehow restrained by state family law, or because one of the parties can show duress under standard secular legal rules (again, a pretty hard standard to meet in the absence of express threats of illegal conduct). But generally speaking they should be enforceable, just as contracts are generally enforceable even when we think one party has less "bargaining power" (an ill-defined concept) than the other. We shouldn't nanny-state Muslims any more or any less than we nanny-state the Amish or evangelical Christians or Orthodox Jews or the secular.
I'd reject therefore any Establishment Clause challenges to the contracts, unless they by their terms call for theological judgment -- in which case the better solution would be for the contracts to expressly call for arbitration by tribunals that can make such theological judgments, and then for secular courts to generally enforce any arbitral property settlements or monetary awards. The one complicated question is what should be done if the contracts call for enforcement by arbitral tribunals that apply sex-, race-, or religion-discriminatory rules. It's possible that under the secular law having to do with enforcement of arbitration agreements, such discriminatory arbitration might be against public policy and thus the results of it might be unenforceable; I don't know what the rule ought to be. But again the basic principle should be to apply to Muslim contracting parties precisely the same rules that we apply to anyone else.
So What Gun Regulations Are Reasonable?
Perhaps the question most commonly asked by reporters about yesterday's decision in Heller, is how it will affect the constitutionality of other gun laws. I believe Justice Scalia signaled that regulations short of a ban should be scrutinized the way we do "time, place, and manner" regulations of speech when he equated the Second Amendment with the First: "There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not."
An article by Gary Barnett, a rising 3L at Georgetown Law, just appeared in the G eorgetown Journal of Law and Public Policy contending that the doctrines construing the individual rights in the First Amendment should be applied analogously to the rights protected Second Amendment. (This is what he calls the Common Law Constructive Method.) He provides a very useful survey of First Amendment doctrines and then considers how they might need to be altered or refined to work in the Second Amendment context.
His article, The Reasonable Regulation of the Right to Keep and Bear Arms can be downloaded from SSRN here. Here is the abstract: The Supreme Court has recently held in District of Columbia v. Heller that the Second Amendment protects an individual right to keep and bear arms. That decision, however, is only the beginning of the inquiry. Individual rights, via the police power, are subject to reasonable regulation. The difficult question remaining is whether a particular regulation is unreasonable, unduly infringing on an individual's right to keep and bear arms, and is therefore unconstitutional. This note proposes a workable analytic approach to addressing this question. Guided by the Common Law Constructive Method, this note takes First Amendment time, place, and manner doctrine and transposes it onto the Second Amendment. Here is a taste of his analysis (which I have edited to omit references to First Amendment cases discussed elsewhere in the article): The Common Law method of construction teaches an important lesson about the reasonable regulation of the right to keep and bear arms. If the very same degree of scrutiny that is applied to restrictions on speech in a pubic forum were applied to restrictions on guns in a public forum, far more gun laws would be upheld as constitutional than laws restricting speech. This is because, with gun laws, the government can almost always provide a safety rationale for enacting a particular regulation. In other words, any gun restriction can be justified on the grounds of safety. This effectively eliminates the half of the test requiring a significant government interest. In contrast, in First Amendment law, absent a clear and present danger, speech rarely threatens health and safety in the same way. This inability of the government to have an ever-present safety rationale creates an inherent protection for speech within First Amendment law. In other words, because it is more difficult for the government to articulate a significant interest, it can enact fewer restrictions. This lack of protection in the Second Amendment law should be supplemented by requiring a law be the least intrusive means to achieving the government’s stated end. . . .
Determining whether a regulation is narrowly tailored . . . is a difficult task. This is where the wisdom embedded within First Amendment law is quite useful. The Supreme Court . . . has already promulgated a feasible approach: if a government restriction results in a substantially adverse effect on the non-target group from effectively asserting their Second Amendment rights, then that restriction would be unreasonable. For example, a trigger lock requirement on a handgun, intended to combat the social harm of accidental firearm use, would most likely have a deleterious effect on an individual’s ability to protect herself effectively against an armed robber. The non-target group, those wanting to exercise their right of self defense, would, for all intents and purposes, be prohibited from effectively acting in self-defense, a constitutionally protected end. Such a requirement would not be narrowly tailored . . . and therefore would be unconstitutional. . . .
The second requirement for a government restriction to not infringe an individual’s right to keep and bear arms, and thus be reasonable, mirrors the third prong of the First Amendment analysis—that any restriction leave open ample alternative channels of communication. This requirement is designed to safeguard against the encroachment on the protected ends of the First Amendment. To ensure that this requirement is satisfied, a law must allow for the continued accomplishment of the constitutionally protected end. The same is true of the Second Amendment. Although it does not expressly protect any specific means, it does protect specific ends. Therefore, as in First Amendment law, a restriction must leave ample means of accomplishing the ends protected by the Second Amendment. This article is a useful starting point for anyone who wants to think seriously about how to distinguish reasonable from unreasonable gun laws.
NY Times on Future Gun Litigation.--
In the New York Times, Adam Liptak (admirably) writes a straightforward article on the effect of Heller:
Coming Next, Court Fights on Guns in Cities
The individual right to bear arms identified by the Supreme Court on Thursday will have little practical impact in most of the country, legal experts said, though Washington’s comprehensive ban on handguns used for self-defense in the home will have to be revised, and similar laws in several cities are also vulnerable.
Most state and city gun restrictions appear to be allowed under the ruling, including licensing laws, limits on the commercial sale of guns, restrictions on guns in places like schools and government buildings and prohibitions on the possession of firearms by felons and the mentally ill. “Dangerous and unusual” weapons can also be banned, although that phrase was not fully defined.
Justice Antonin Scalia, writing for the majority in the 5-to-4 decision, also suggested that bans on concealed weapons would probably pass — new locution alert — Second Amendment muster. Justice Scalia added that the court’s list of permissible restrictions was not exhaustive.
The legal battlegrounds will be cities with ordinances similar to Washington’s essentially complete ban, most notably Chicago.
“It’s really the municipalities that are the offenders,” said Robert A. Levy, a lawyer on the winning side of the case and an architect of the victorious strategy.
“There is likely to be quite a flood of litigation to try to flesh out precisely what regulations are to be permitted and which ones are not,” Mr. Levy said. “The challenges are likely to be in Chicago, New York, Philadelphia and Detroit.”
In fact, a lawsuit against Chicago’s very restrictive ordinance was filed almost immediately after the court’s decision. Four Chicago residents and two gun rights groups asked the federal district court there to strike down the ordinance.
Adrian M. Fenty, the mayor of Washington, said the city was taking steps to comply with the court’s ruling. Officials here are considering an amnesty period in which handgun owners can register them without penalty, Mr. Fenty said at a news conference.
Mr. Fenty emphasized that it remains illegal to carry handguns outside the home and that only registered guns may be kept at home. Automatic and semiautomatic weapons will generally remain illegal, he said.
In addition to Chicago, as Justice Stephen G. Breyer wrote in a dissenting opinion, several of its suburbs in Illinois, including Evanston, Morton Grove, Oak Park, Winnetka and Wilmette, ban the possession of handguns in many settings. Toledo, Ohio, bans some kinds of handguns, Justice Breyer wrote, and San Francisco would have a similar ban had it not been pre-empted by state law.
As the list of affected localities demonstrates, gun control laws of the sort most likely to be affected by Thursday’s decision are almost exclusively urban. Indeed, some 40 states pre-empt local gun regulations, indicating significant tensions between state lawmakers and municipal officials. . . . .
The only odd statement in the article is that restrictive laws "are almost exclusively urban," when about half of the cities mentioned in the article are suburban. It would be better to say that most such laws are urban and suburban, not rural.
Washington Post on Heller.--
Unlike Reuters, the Washington Post is able to cast doubt on the Heller decision in ways that one expects from the more sophisticated organs of the establishment:
Justices Reject D.C. Ban On Handgun Ownership
5-4 Ruling Finds 1976 Law Incompatible With Second Amendment The Supreme Court struck down the District of Columbia's ban on handgun possession yesterday and decided for the first time in the nation's history that the Second Amendment guarantees an individual's right to own a gun for self-defense.
The court's landmark 5 to 4 decision split along ideological grounds and wiped away years of lower court decisions that had held that the intent of the amendment, ratified more than 200 years ago, was to tie the right of gun possession to militia service.
While the decision left for another time how the standards by which gun-control laws nationwide will be evaluated, it was decisive about the District's law, the strictest in the country. In addition to prohibiting ownership of handguns, the city also requires that shotguns and rifles be kept unloaded and disassembled or bound by a trigger lock.
"We hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense," Justice Antonin Scalia wrote. He was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.
The Second Amendment, Scalia said, "surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."
The opinion, the last and perhaps most anticipated ruling of the court's current term, delivered a bold and unmistakable endorsement of the individual right to own guns. At the same time, it raised as many questions as it answered about the ability of government to restrict gun ownership to promote public safety, a point made in detailed rebuttals from the liberals on the court, both from the bench and in two lengthy dissents.
Justice Stephen G. Breyer said the decision "threatens to throw into doubt the constitutionality of gun laws throughout the United States," and he called that a "formidable and potentially dangerous" mission for the courts to undertake. He was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.
As if to underscore the point, D.C. officials, who expressed disappointment with the ruling, vowed to replace the now-voided gun ban with strict handgun regulations, raising the possibility of further litigation.
Reuters on the "New Right" in Scalia's opinion in Heller.--
James Taranto has some fun at Justice Stevens's expense and then quotes and criticizes an amazing passage from Reuters:
"Although an individual now has a constitutional right to own guns, that new right is not unlimited, wrote [Justice Antonin] Scalia, a hunter," the news service reports today. Justice Stevens is 88, and he is generally considered old. If this right really dated back 217 years, Reuters could not describe it as new.
Reuters's spin — in a news story no less — is outrageous. The individual right to own a gun is not a "new right." It predates the 2d Amendment and was the interpretation given by a few early commentators on the 2d amendment. The individual right to arms has persisted at least as a substantial theory for over 300 years.
That the 2d Amendment protects only a collective right of states was a view expressed by no framer or early commentator. It was mentioned rarely before the Civil War and became a popular theory only in the 20th century. Although it was very commonly held by modern academics until about 10 years ago, finally even historians had to face the fact that no framer or early commentator ever said that the 2d Amendment protected a collective state's militia right and some early commentators had expressed an individual rights view of the 2d Amendment.
So about 10 years ago, scholars began to adopt a new theory — the civic rights view. Under the civic rights view of the 2d Amendment, the right is nominally an individual one, but the state is free to determine who may exercise it. That is the "new right" that was put forward in the historian's brief and the "new right" that Justice Stevens tried to introduce into the Constitution in his dissent. Although again no framer or early commentator ever expressed this civic rights view — and it was virtually unheard of until a decade ago — it at least is not directly contrary to some of the evidence of an individual right, since the civic rights view has a minor individual rights component.
If Justice Stevens's dissent had prevailed and it had become the law of the land, that would have been a "new right," since almost no one had ever heard of this interpretation of the 2d Amendment until scholars largely invented it fairly recently.
Justice Breyer and the Culture Wars:
I think it's illuminating to compare Justice Breyer's dissent in DC v. Heller with his dissent in Zelman v. Simmons-Harris, 536 U.S. 693 (2002), the Cleveland school voucher case from a few years ago. Like Heller, Zelman is a "culture wars" case. To many liberal elites, both school vouchers and guns seem foreign and suspicious. They both threaten the common enterprise of a civil and enlightened society, even if poor people and folks from the flyover states seem to like them. So the interesting queston is, how does Justice Breyer approach the constitutionality of these provisions — permitting school vouchers in Zelman, and banning handguns in Heller? In his Zelman dissent, Justice Breyer reasons that public school vouchers are unconstitutional because they "risk[]" creating "a form of religiously based conflict potentially harmful to the Nation’s social fabric." That is, they are unconstitutional because there is a possibility that they could lead to tension among religious groups. Justice Breyer speculates that such programs might lead different religious groups to feel that they are not getting a fair shake: How will the public react to government funding for schools that take controversial religious positions on topics that are of current popular interest–say, the conflict in the Middle East or the war on terrorism? . . . Efforts to respond to these problems not only will seriously entangle church and state, but also will promote division among religious groups, as one group or another fears (often legitimately) that it will receive unfair treatment at the hands of the government. As I read Breyer's Zelman dissent, his perception of a risk that the law could have a harmful result that touches on religious practice is enough to strike it down. Contrast Breyer's Zelman dissent with his dissent in Heller. Here, the polarity of the culture wars has been reversed. And so has Justice Breyer's approach: Now he reasons that the possibility of a positive social impact of the law makes it constitutional. The political philosopher of Zelman is replaced with a careful and cautious social scientist who runs over pages and pages of statistics and scientific studies in Heller. So long as the legislature had a possible basis for thinking that restricting the constitutional right was a good idea, Breyer explains, the law should be upheld: These empirically based arguments may have proved strong enough to convince many legislatures, as a matter of legislative policy, not to adopt total handgun bans. But the question here is whether they are strong enough to destroy judicial confidence in the reasonableness of a legislature that rejects them. And that they are not. For one thing, they can lead us more deeply into the uncertainties that surround any effort to reduce crime, but they cannot prove either that handgun possession diminishes crime or that handgun bans are ineffective. The statistics do show a soaring District crime rate. And the District’s crime rate went up after the District adopted its handgun ban. But, as students of elementary logic know, after it does not mean because of it. What would the District’s crime rate have looked like without the ban? Higher? Lower? The same? Experts differ; and we, as judges, cannot say.
What about the fact that foreign nations with strict gun laws have higher crime rates? Which is the cause and which the effect? The proposition that strict gun laws cause crime is harder to accept than the proposition that strict gun laws in part grow out of the fact that a nation already has a higher crime rate. And we are then left with the same question as before: What would have happened to crime without the gun laws—a question that respondent and his amici do not convincingly answer. (emphasis added) It's an interesting mirror image, I think. When the culture wars pointed one way, Justice Breyer thought that a "risk" of a "potentially harmful" adverse result was enough to strike the law down. When the culture wars pointed in the other direction, so did the burden of proof: now Justice Breyer must have his "confidence" in the reasonableness of the legislature "convincingly" "destroyed" before he would vote to strike down the law. To be clear, I'm not suggesting that Justice Breyer is alone in taking different approaches depending on which side of the culture wars the challenged law happens to fall. Plainly he is not. At the same time, I do think the contrast between these two dissents provides an unusually clear case of the difference.
Randy Barnett Comments on Heller in the WSJ.--
In the Wall Street Journal, Randy Barnett has some extravagant praise for Justice Scalia's opinion:
Justice Scalia's opinion is exemplary for the way it was reasoned. It will be studied by law professors and students for years to come. It is the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court. Justice Scalia begins with the text, and carefully parses the grammatical relationship of the "operative clause" identifying "the right to keep and bear arms" to the "prefatory clause" about the importance of a "well-regulated militia." Only then does he consider the extensive evidence of original meaning that has been uncovered by scholars over the past 20 years – evidence that was presented to the Court in numerous "friends of the court" briefs.
Justice Scalia's opinion is the finest example of what is now called "original public meaning" jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens's dissenting opinion that largely focused on "original intent" – the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a "larger context." Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using "original intent" – or the original principles "underlying" the text – to negate its original public meaning.
Of course, the originalism of both Justices Scalia's and Stevens's opinions are in stark contrast with Justice Breyer's dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.
So what larger lessons does Heller teach? First, the differing methods of interpretation employed by the majority and the dissent demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same.
We should also seek to get a majority of the Supreme Court to reconsider its previous decisions or "precedents" that are inconsistent with the original public meaning of the text. This shows why elections matter – especially presidential elections – and why we should vet our politicians to see if they appreciate how the Constitution ought to be interpreted.
Good legal scholarship was absolutely crucial to this outcome. No justice is capable of producing the historical research and analysis upon which Justice Scalia relied. Brilliant as it was in its execution, his opinion rested on the work of many scholars of the Second Amendment, as I am sure he would be the first to acknowledge.
Justice Stevens, in many respects my favorite justice, needs better clerks — or a better interpretive jurisprudence. As I noted earlier, he was led astray by the weak historian's brief, which not only misled Stevens about the past but induced him to use the tenuous and discredited mode of judicial reasoning that Randy identifies.
Justice Breyer’s dissent, on the other hand, is just plain embarrassing — if possible, even more embarrassing than his book.
Thursday, June 26, 2008
Revisiting the SG's Brief in Heller:
Back in the spring, the Solicitor General's Office of the Justice Department took a lot of heat for taking a middle-ground position on the Second Amendment in DC v. Heller. As I blogged at the time, the heat seemed misdirected to me: After all, the SG has an institutional client to represent, and a lawyer can't ignore the needs of his client. The Justices certainly realize that. But with Heller now decided, I wonder if the SG's Heller brief also looks like a pretty good tactical move from a pro-gun rights perspective. Consider that the case ended up being extremely close: The vote was 5-4, with not a vote to spare. Taking a harder line position might have alienated that fifth vote. Plus, the majority opinion did not draw any disagreement from the Justices voting to affirm with its statement that traditional forms of gun control like felon-in-possession laws were left undisturbed by the Court's ruling, suggesting that none of the Justices were interested in going so far. True, the Court did not decide the standard of review and then remand, as the SG's brief recommended: Instead the Court decided the issue without needing to announce the standard. But from a purely tactical perspective, it seems to me that the SG's brief may have been more savvy than many people gave it credit for being. The middle ground brief not only didn't hurt the pro-gun rights side but quite possibly helped it.
Harsh Interrogation of Al Qaeda Suspects:
It's pretty clearly not the spin the author (who lionizes--but also reveals the identity of--an investigator who didn't lay a hand on suspects) wants to emphasize, but this New York Times article strongly suggests that harsh interrogation techniques, including waterboarding, helped U.S. investigators get some very important information out of some very high-level Al Qaeda detainees.
That would not surprise me. Whatever one thinks about the morality, legality, or political widsom of using such interrogation techniques, the oft-heard (at least by me) trope that harsh interrogation techniques, including things we would all acknowledge to be torture, are completely ineffective, is nonsense. Whether other techniques might be even more effective, and under what circumstances, is a separate question.
Speaking of Congratulations on Citations by the Supreme Court,
let me offer special congratulations to Brian Frye, a young lawyer and 2005 graduate of NYU School of Law, whose article The Peculiar Story of United States v. Miller, 3 N.Y.U. J. L. & Liberty 48 (2008) was cited by the majority. Citations to such articles by people who aren't academics, and who aren't solidly established in their field (the way Don Kates and Stephen Halbrook were), are especially rare, and especially worth noting.
The Political Implications of the Heller Opinion -- Please Comment:
Sorry our comments were down most of the day; if you'd like to comment about the political implications of the opinion — what it's likely to mean for the election, for the gun rights and gun control movements, and the like — please comment here. If you'd like to comment about the opinion as such, please do so on this thread below. If you'd like to comment about the legal implications of the opinion, such as what future challenges are likely to arise, how the opinion's reasoning may affect other areas of the law, and the like, please do so on this thread below.
The Legal Implications of the Heller Opinion -- Please Comment:
Sorry our comments were down most of the day; if you'd like to comment about the legal implications of the opinion — what future challenges are likely to arise, how the opinion's reasoning may affect other areas of the law, and the like — please comment here. If you'd like to comment about the opinion as such, please do so on this thread below. If you'd like to comment about the political implications of the opinion, please do so on this thread above.
The Heller Opinion -- Please Comment:
Sorry our comments were down most of the day; if you'd like to comment about the opinion, please comment here. If you'd like to comment about the legal implications and political implications of the opinion, please comment on those threads above.
Carl Bogus's Unpersuasive Comments on Heller.--
I have been reading the exchange at the Federalist Society website on the Heller case.
I found the post by Carl Bogus at best uninformed and (unintentionally) misleading. Bogus wrote:
A careful study that compared the nine year period before the ban was enacted with the nine years following enactment, and then compared what happened in D.C. with the immediately surrounding areas in Maryland and Virginia, found that the handgun ban reduced gun-related homicides by 25% and gun-related suicides by 23 percent. Colin Loftin, Ph.D., et al., “Effects of Restrictive Licensing of Handguns of Homicide and Suicide in the District of Columbia,” 325 New Eng. J. Med. 1615 (Dec. 5, 1991). The law did not turn Washington into the Garden of Eden, and crime rates fluctuated, particularly during the last few years of the study when the use of “crack” cocaine was increasing and homicides increased dramatically. Nevertheless, the effect of the law was both immediate and sustained, and things would have been worse without it.
From what I've seen, the Loftin study that Bogus points to should not be taken seriously. A simple Google search would have revealed why. According to Dean Payne’s re-analysis, if you use Loftin’s homicide and suicide data, adjust for population changes (as you must), and use per capita rates (as you must), the DC ban is associated with more deaths after the ban, not fewer. While Payne does not argue that the opposite effect is present, the problems that he points to in the Loftin study should render it useless for answering the question that Bogus wants to answer.
Here is part of the devastating 1994 analysis of the Loftin paper by Dean Payne:
Loftin suggests that the District's 1976 restrictive handgun licensing, effectively a ban on new handguns, prevented an average of 47 deaths per year. Inexplicably, the report fails to mention the rapid shrinkage of the District's population, or the rising population of the surrounding community in Maryland and Virginia. When homicides and suicides rates are expressed as per-capita rates, any apparent post-1976 benefit enjoyed by the District vanishes.
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The core data of the report shows that the average monthly number of gun-related homicides and suicides dropped significantly in DC after it imposed its handgun ban, whereas non-gun deaths in DC and gun and non-gun deaths in the surrounding MD/VA communities did not drop.
Let me restate that data, but combining gun and non-gun deaths:
Mean numbers of homicides and suicides
Loftin, et al. data
. |
before ban |
after ban |
change |
Homicide |
District of Columbia |
20.3 |
16.7 |
-18% |
Maryland and Virginia |
8.8 |
9.1 |
+3% |
Suicide |
District of Columbia |
7 |
6 |
-14% |
Maryland and Virginia |
19.1 |
20 |
+5% |
Note that these are deaths per month, not per-capita rates. The study assured us that there were no significant changes within either group, but did not mention actual population sizes or any growth or shrinkage.
I averaged the populations listed in annual FBI Uniform Crime Reports (UCR) and Census Bureau reports, and found substantial changes in the study areas:
Mean population before and after DC ban
. |
before ban |
after ban |
change |
District of Columbia |
740,800 |
639,200 |
-14% |
Maryland and Virginia |
2,197,400 |
2,596,400 |
18% |
I also added up the homicides reported in the UCR. My pre-ban numbers
matched Loftin's figures, but the post-ban numbers show a large discrepancy. I find about 100 fewer homicides within DC and about 80 more in MD/VA than are evident in Loftin's numbers. Here are both sets,
but expressed as per-capita rates:
Mean annual homicide and suicide rates
per 100k residents
. |
before |
after |
change |
My homicide count |
District of Columbia |
32.9 |
29.9 |
-9% |
Maryland and Virginia |
4.8 |
4.5 |
-6% |
|
Loftin's homicide rates |
District of Columbia |
32.8 |
31.3 |
-5% |
Maryland and Virginia |
4.8 |
4.2 |
-12% |
|
Loftin's suicide rates |
District of Columbia |
11.3 |
11.3 |
-1% |
Maryland and Virginia |
10.4 |
9.3 |
-11% |
Loftin suggests that DC's handgun ban saved 47 lives per year — 3.3 gun-related homicides and 0.6 gun-related suicides per month. This view collapses when the per-capita rates are examined. Some lives were saved by the overall death rate decline visible in both groups, but the body count dropped mostly because many people moved out of the District of Columbia. Body counts in neighboring areas didn't drop simply because the declining death rates were outpaced by a rapidly growing population.
According to my count [but not Loftin’s], the District experienced a 3% better post-ban homicide rate reduction than did the neighboring communities. This is the only portion of the reduced homicide rate that could be attributed to DC's more restrictive handgun control, |