The Second Amendment in the Tenth Circuit: Three Decades of (Mostly) Harmless Error:
Every year the Denver University Law Review publishes a Tenth Circuit Survey. In the forthcoming issue, the lead article is my examination of the Tenth Circuit's record on the Second Amendment issues. My conclusion:
The Tenth Circuit’s three-decade record of Second Amendment cases was a disgrace to the rule of law.VC contributors have often posted thoughtful comments which have improved my draft articles. I look forward to similar comments here.
It was not a disgrace for wrong results. Almost all the decisions involved restrictions on narrow classes of especially dangerous weapons, or the prohibition of gun ownership for people who had proven themselves to be dangerous. Most of these results are presumptively valid under Heller, and most of the rest are in no worse than a gray zone of validity. Even pre-Heller, almost all the decisions could, as Judge Kelly observed in Parker [a 2004 case, in which a concurring opinion by Judge Kelly criticized the overbreadth of previous Tenth Circuit opinions on the Second Amendment], have been written on the narrow grounds of upholding legitimate, narrowly tailored restrictions on the Second Amendment.
The Tenth Circuit jurisprudence was not a disgrace because it adopted a militia-only theory of the Second Amendment....The Tenth Circuit’s jurisprudence cannot be called a disgrace because it ultimately ended up on the "4" side of a 5-4 Supreme Court decision. Although militia-only was a weaker theory, it was not a preposterous theory, or a theory bereft of any intellectual support.
The reason that the Tenth Circuit’s Second Amendment cases are a disgrace is that they barely had any reasoning. If you take everything that the Tenth Circuit wrote about the Second Amendment in Oakes (1977) and the 25 years of cases thereafter, the whole thing combined would not add up to a mediocre student Note in a secondary journal at an unaccredited law school.
Even the lowliest of student Notes must at least attempt to address the most important arguments on the other side. Especially when those contrary arguments come from the U.S. Supreme Court's explication of the very text that is at issue. Or from enactments of the Congress of the United States. Or from the Yale Law Journal, the Michigan Law Review, and or Larry Tribe, Akhil Amar, and Sanford Levinson. A mediocre student Note would not address all these sources, but it would address at least a couple. The Tenth Circuit spent a quarter century pretending there were no serious contrary authorities.
Nobody forced the Tenth Circuit to propound a grand theory of the Second Amendment without being able to make a serious intellectual defense of the theory. As Judge Kelly pointed out, almost all the Second Amendment cases that came to the Tenth Circuit could have been handled simply by addressing whether they involved legitimate restrictions on the right. It was a deliberate choice of the Tenth Circuit to reach out in Oakes, and to, in effect, declare that an entire Amendment to the Bill of Rights was a nullity, insofar as its protection of 99.9% of the American people.
It was the choice of the Tenth Circuit to continue to declare its Second Amendment decisions in the sweeping, nullificationist terms of Oakes. If the Circuit were determined to proceed on such a broad front, then the Circuit owed the American people a real justification of its actions. Not the pompous ipse dixit of Haney, Oakes, and the other cases, but a serious explanation. An explanation which addressed the best arguments on the other side.
That the Tenth Circuit never did so perhaps reflected a lack of intellectual self-confidence. The Tenth Circuit is a good example of Sanford Levinson’s observation that some elements of the legal elite refused to intellectually engage with the Second Amendment because of "a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even 'winning,' interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation."
Grand view, you mean?
[DK: Thanks. Just fixed it.]
thank you for posting the article. I read it, and look forward to re-reading. I don't have the benefit of going back and examining all the 10th Circuit cases you reviewed but I'm sure your account of them is accurate.
First off I don't mind if you call their behavior a "disgrace to the rule of law" but lots of people will be offput by that. It seems way harsh. But that is just an observation; obviously you are at peace with it.
Another perspective I'd like to add is that I'm currently reading Posner's How Judges Think, and from that perspective your criticism of them looks like that of a "legalist" attacking these judges for not relying sufficiently on scholarly materials and syllogism to reach the doctrinally "correct" result, or at least employ the correct "legal reasoning" method.
That is not a criticism, but you give insufficient attention to a reason they may have acted this way: the supreme court itself was deliberately not addressing the question, and many people have remarked on this over the years. It was not only that the Court was happy to have these cases disposed of cursorily by lower courts-- they appeared to be happy to have virtually no discussion of the issue. There was no real Second Amendment "doctrine" to apply, and the Court was happy if none developed. The closest thing available to them as a "rule" from the Supreme Court may have been, "avoid this topic if you can." They were not disposed to hear these cases; and we all recall Burger's public denunciation of the individual-rights theory. A judge could be forgiven for saying "this may be bullshit, but the men upstairs are determined to have this amendment treated as a dead letter."
In other words, straightforward logical processes don't describe what the judges did, or their real motives, so appeals to "better" logical processes won't "improve" results.
Another factor that may have contributed to this, from a "legalist" perspective, is that cursory court opinions are often the result of weak inputs by counsel. All of these extensive secondary authorities you point to, like law review articles and congressional reports, were probably not cited to the court in the briefs by what you admit were usually underfunded litigants. Even a prestigious federal appeals court cannot (or will not) turn every claim raised before it into an opportunity to issue a 25-page "tour of the library" opinion, displaying arguments and theories from law professors that were not raised specifically by the parties. Garbage in, garbage out.
Finally, you may know this specific area of law better than most others, but my sense is that only in the mid-90s and beyond was there really a convincing critical mass of legal scholarship that made the individual-rights theory irrefutable, or close to irrefutable. So, if you are someone who thinks Heller was correct, what is better- a 10th Circuit decision from the 1980s based on incomplete scholarly research that gets reversed by an ill-informed Supreme Court, or a series of decisions batting down 2d Amdt claims that eventually are superseded by Heller?
The passage reads more like venting than reasoned analysis -- indeed, it could easily have been an anonymous comment by one of the more agitated readers of this blog. Even though it contains a well-reasoned critique of the cases, the reasoning is overshadowed by the vitriol.
Such writing would be extreme even by the standards of an op-ed page, let alone a law review. Journal articles should have a more moderate tone. If you'll forgive me for saying so, "Even the lowliest of student Notes" would not go to such extremes.
Fwiw, I would say this even if I agreed passionately about your position. My critique is about style and not substance.
Actually, it is dead on accurate. The Eighth Circuit's efforts are no better. As social "scientists" would say result-oriented trash.
See Brannon Denning's classic article:
Can the Simple Cite be Trusted?: Lower Court Interpretations of United States v. Miller and the Second Amendment, 26 Cumberland Law Review 961 (1996).
Besides, I don't think any statement of opinion could qualify as "dead on accurate". It may be dead-on aligned with the reader's own opinion, or even the opinion of the vast majority of people, but that's not the same thing.
"Tenth Amendment's" should be "Ten Circuit's".
[DK: Thanks. Just fixed it.]
The Tenth Circuit's Second Amendment decisions are an example of mental laziness. The Tenth Circuit simply took as indisputable that the collective right interpretation of the Second Amendment was correct and so saw no need to explain what it perceived to be obvious.
"Tenth Amendment's" should be "Tenth Circuit's".
The sharpest rapier, inserted with a deft touch, inspires no immediate pain. So, for both fun and effectiveness, I suggest you switch from a .50BMG to something a little more subtle; something that you and we will enjoy, their colleagues will become thoughtful about but that the targets themselves will never know was the cause of their fall from the halls of enlightened man.
It wouldn't be a very expansive "grand view" if it's locked up tighter than a closeted Republican representative in his gay prostitute's S&M torture dungeon.
Your failure to incorporate these points into your scathing critique show a questionable grasp of how lower courts go about making decisions. And the vitriol apparent in your posted introduction shows you to be lacking any sense of proportion. Moderate your tone a bit, and perhaps people won't dismiss you as a crank.
I'm not against making a point forcefully, and I think that, when it's taken too far, civility can turn into a form of cowardice. But 8 paragraphs to make the point that the Tenth Circuit's Second Amendment caselaw was something of a copout for lacking reason and failing to address contrary authorities... at the end it feels like a personal attack.
My 2 cents. Take it for what it's worth.
Of course not. Instead, they should have read it. Rather than taking part in the decades long game of "telephone" the circuits played with the Miller decision, each basing it's new rulings on other circuits' interpretations of Miller, rather than the actual decision.
Sounds a bit like "draft" letters to the editor that I have written but not mailed.
Indeed-- and speaking of mid-1990s scholarly work, how pleased would Professor Kopel have been if the Tenth had cited "scholarly" works such as Arming America to bat down Second Amendment arguments?
The tone of the article is scathing, and revels in 20/20 hindsight.
I must disagree: Those dismissals were never "uncontroversial" in any meaningful sense. Every one of them outraged huge numbers of people, and the legal theory they were based on, while it might have been very popular with a legal community which really, seriously disliked the 2nd amendment, has never, so far as I understand it, commanded anything approaching a majority of the public.
The legal community may, for a while, have forgotten what the 2nd amendment meant, but the public didn't.
Put Scalia's arguments in Heller under a microscope and Heller goes up in one big ball of flames (see here).
“[T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states.” —Antoin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997)
with nearly every paragraph.
At bottom I don't think it will shock anyone to learn that the Tenth Circuit hasn't been leading the Second Amendment parade, because that Circuit traditionally tends not to lead many parades at all (riparian rights and public land use matters being the only possible exceptions that come to this pinhead's mind).
When the Second Amendment was written, Americans who were eligible for militia service were said to be “capable of bearing arms” or "able to bear arms." That was the common language of the time.
To be considered capable of bearing arms you had to meet militia qualifications, both physically and by age. If you weren’t within the age limits or if you weren’t able- bodied, you might well be able to carry a duck gun or to carry arms for self-defense, but you wouldn’t have been counted as part of that body of the people capable of bearing arms.
But that doesn't excuse the courts from offering cogent reasons for their decisions. Every litigant is owed an explanation for a ruling against him or her.
Circuit courts are not bound by other circuits' precedents, they're bound by the Supreme court's precedents. Why is it unreasonable for them to notice when those other circuits' precedents disagree with the Supreme court ruling they're supposedly based on? Especially when defendants' counsel is pointing it out?
Courts routinely summarily affirm matters where they believe there is clear precedent, even in the face of social disagreement. They've summarily affirmed sodomy laws, even though Bowers was 5-4 and Lawrence was 5-4 the other way. They summarily affirmed affirmative action cases right up to the Supreme Court's reversal of its former support in the 1980s. They've summarily affirmed anti-drug laws, even though a few states and court have dissented. They summarily affirmed abortion cases right up to Roe v. Wade. And so on.
This is reasonable. There's simply no need (at least the general public has no need, law professors' paycheck needs may take them in a different direction) to endlessly regurgitate matters that have already been clearly decided, which the panel doesn't even have the authority to revisit, which can only be addressed at a level further up, and which are being presented to lower courts in the first place essentially for presentation purposes.
I frankly think court opinions are much longer than they need to be and should decline to waste trees and resources regurgitating clearly decided matters more often, not less. THis is so regardless of what I think of the legal merits of particular issues and decisions.
The status of firearms was clearly decided a particular way in the 10th Circuit in the decades prior to Heller. That was simply the state of the law in that circuit. Panel judges who recognized this are to be commended for their brevity and their parsimony with the public's resources, including its attention and their own time. The fact that the Supreme Court ultimately reversed this circuit precedent doesn't change this in the least.
I am no expert on the Second Amendment. But I edit a lot of legal writing. A lot. My opinion, fwiw: this level of moral outrage/nastiness detracts significantly from the point you are trying to make, makes you look like a crank, and is similar to something you might see from... from... a mediocre associate-written brief in a dogbite case handled by a second-tier law firm.
Okay, just kidding about that last part, but seriously -- you need to dial this WAY back.
The Nordyke oral arguments were on Thursday in the Ninth, and this case is the best hope for 2A incorporation. The appellees were literally laughed at when it was pointed out that they were trying to have a gun show without guns.
Thank you very much for your survey of 10th Circuit Second Amendment cases and the effect of Heller on each. I am a criminal defense attorney practicing in Woodland Park, CO who has used Heller to obtain dismissals or deferrals in two cases and anticipates having to argue the effect of 10th Circuit precedent in the near future. Your survey should save me a great deal of research.
As to the argumentation in the article, it is cartoonish in its rhetoric and is almost laughable, except I don't think a joke was intended. The article does not even amount to the heights of a "mediocre student Note."
Justice Scalia is correct. The original Bill of Rights limited only the Federal Government. The issue is whether the Second Amendment is incorporated along with nearly every other right in that bill against the States.
Last I looked the original Bill of Rights was still very original.
"The adoption of this proposed [fourteenth] amendment will take from the States no rights that belong to the the States." Bingham
"Do gentlemen say that by so legislating [enforcing the Fourteenth Amendment] we would strike down the rights of the State? God forbid. I believe our dual system of government essential to our national existence." Bingham
"The recent [fourteenth] amendment in no way can be construed by any court of the land as invading the rights of the states as existed since the beginning of our national existence." Bigham
“The care of the property, the liberty, and the life of the citizen, under the solemn sanction of an oath imposed by your Federal Constitution, is in the States, and not in the Federal Government. I have sought to effect no change in that respect in the Constitution of the country.” Bingham
"It [fourteenth amendment] takes from no State any right which hitherto pertained to the several States of the Union." Bingham
"The gentleman will pardon me. The amendment is exactly in the language of the Constitution; that is to say, it secures to the citizens of each of the States all the privileges and immunities of citizens of the several States. It is not to transfer the laws of one State to another State at all. It is to secure to the citizens of each State all the privileges and immunities of citizens of the United States in the several States. If the State laws do not interfere, those immunities follow under the Constitution." Bingham
"The clause of the Fourteenth Amendment, 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,' does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two." Bingham
The Tenth includes Oklahoma, Kansas, Wyoming, Utah, Colorado, and New Mexico. Not exactly bastions of liberalism, particularly the first four.
Brett, go to law school, take a couple of courses in jurisprudence, maybe clerk for a judge, and then get back to us about courts of appeal ignoring the decisions of their sister circuits.
And also (and this goes for a lot of people), stop pretending that the Heller reading of Miller was the only plausible reading. Miller was a poorly written and oblique decision; it was certainly plausible for lower courts to decide to leave it to the Supreme Court to determine whether there was an individual right to keep and bear arms.
right. i mean "the people" clearly doesn't reference INDIVIDUALS (rolls eyes).
apparently, the 2nd amendment needs more penumbras and emanations in order for people to realize what the "plausible" reading is!
"That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state."
The Note approaches the issue by asking how many obstacles each side must explain away and examining the relative strength of those explanations. (The main argument begins on p2154, with the previous parts being thorough background.) Under this analysis, the collective right view utterly fails. No doubt, the inability of the Tenth Circuit to "explain away" the overwhelming support for an individual right is one of the reasons for its refusal to address its cases in an intellectually honest manner.
This is just an area where if you learn legal theory from conservative talk radio, you end up woefully uninformed about how the law works. It was perfectly reasonable for courts of appeal not to rock the boat when the hopelessly vague Miller case was the prevailing legal opinion and the other courts of appeal basically agreed as to what it meant. This is how the American (and English common law) legal system works. If you don't like it, move somewhere else.
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