Goodwin Liu on the Second Amendment

Boalt Hall Associate Dean Goodwin H. Liu has been nominated to serve on the 9th Circuit Court of Appeals. Some readers and Senators may be interested in his viewpoint on Second Amendment and other constitutional issues related to firearms policy. So here’s an excerpt from his article Separation Anxiety: Congress, The Courts, And The Constitution, 91 Georgetown Law Journal 439 (Jan. 2003). Liu’s co-author on the article is Senator Hillary Rodham Clinton. The article is based on a 2002 speech that Senator Clinton presented at Georgetown, sponsored by the American Constitution Society. Senator Clinton and Professor Liu criticize recent Supreme Court decisions declaring two federal gun control laws unconstitutional:

[W]hat we have seen in recent years gives me pause. . . . Those changes have come directly from the courts in a series of rulings that have effectively worked to exclude the body politic from the ongoing search for constitutional meaning.

. . .No fewer than seven times in the last seven Terms, the Supreme Court has invalidated part of a federal statute on the ground that Congress exceeded its power to regulate commerce, its power to enforce the Fourteenth Amendment, or its inherent power within our system of “dual sovereignty.” Those statutes include the Gun-Free School Zones Act, the Religious Freedom Restoration Act, the Brady Handgun Violence Prevention Act, the Trademark Remedy Clarification Act, the Age Discrimination in Employment Act, the Violence Against Women Act,  and the Americans with Disabilities Act.

. . .

United States v. Lopez, the 1995 case that said that Congress cannot make it a crime to knowingly possess a gun within 1,000 feet of a school, was the first time in sixty years that the Court had imposed a substantive limit on what Congress can and cannot do under the Commerce Clause. Echoing a prophecy stated in an earlier era, the Court warned that if the law were upheld, then “there never will be a distinction between what is truly national and what is truly local.”

[Paragraph on United States v. Morrison, Kimel v. Florida Board of Regents, and Alabama v. Garrett.]

Beyond the damage that these cases do to civil rights, and the fact that they upset settled understandings of congressional power, what is troubling about them is that they do not occur at a time in our Nation’s history when there is a significant public clamor for a different constitutional vision. To be sure, there has been a general tendency in recent decades in favor of a smaller role for national government, although many have rethought such notions in the wake of September 11th. But more importantly, the recently invalidated statutes themselves provide compelling evidence that the American people are not the true wizards behind the Court’s velvet curtain.

The Gun-Free School Zones Act passed the House by a vote of 313 to 1; it cleared the Senate by unanimous consent. . . .

But even more astounding than the Court’s willingness to override commonsense legislation with such broad support is its eagerness to do so in terms which are deliberately designed to exclude Congress—and by extension, the American people—from playing a part in defining what the Constitution requires and what it permits. The recent cases do not pretend to be opening arguments in a longer debate. Instead, they are self-conscious pronouncements asserting the Court’s authority to be the sole and final arbiter of constitutional meaning. More and more, it seems, Congress and the American people, by extension, are regarded by the Court as mere targets of judicial discipline, unable to live and govern themselves within “judicially enforceable outer limits.”

The Court may have the final say on constitutional interpretation, but I do not see any reason why it should have the only say. . . .

When the Constitution says that Congress shall have power “to regulate commerce … among the several States,” does that not suggest that Congress has some role in determining what counts as interstate commerce? . . . The Court’s recent opinions seem to say no. In the eyes of the Court, whatever Congress may think the Constitution permits or requires does not seem to count for much.

The net result is that Congress is now left to navigate a doctrinal minefield of magic words. . . . The next time I consider school safety legislation, should I wonder whether school safety is “truly national” or “truly local”?  And as I work on hate crimes legislation or a bill to ban workplace discrimination based on sexual orientation, how can I be sure it is a “congruen[t] and proportional” response to a constitutional wrong before I hear the answer from the other side of Constitution Avenue?

These questions begin to give you some idea of the anxiety I feel about the Court’s unilateral effort to redefine the separation of powers in our national government. Beyond raising new questions about the constitutionality of substantive legislation, the Court has sought to minimize the significance of Congress’s views on those very constitutional questions.

. . .

Let me conclude tonight with a call to action on two fronts. First, what we see happening in the courts today underscores how important it is that we in the Senate diligently exercise our constitutional duty to scrutinize judicial nominees—including nominees to the lower federal courts. Let us not forget that cases like Lopez and Morrison affirmed the decisions of lower-court judges who laid the groundwork for the dramatic shifts in doctrine we see today. [FN72] I applaud the efforts of my colleagues on the Senate Judiciary Committee who have done the hard work of ensuring that our federal judges are fair, disciplined, and faithful to the law. The nominations process is an important form of national dialogue on the relationship between Congress and the courts. And for each nominee, it is crucial that the Senate discharge its duty to “advise” before it “consents.”


Footnote 72 includes the following:

The Supreme Court has seen fit to rein in some of the most activist lower-court decisions. . . . But additional cases continue to test the limits. See, e.g., United States v. Emerson, 270 F.3d 203, 227-29 (5th Cir. 2001) (agreeing with district court that Second Amendment confers an individual right to bear arms, notwithstanding contrary indications in United States v. Miller, 307 U.S. 174, 178 (1939)).

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