Originalism and Selective Historic Reference Points

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What are the implications of all of this? 

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

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

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

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

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

Amy Howe at SCOTUSblog writes:

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

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

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

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

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

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

[Updated 4/28/2020]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Stern writes:

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

 And Epps notes:

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

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

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

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

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

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

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

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

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

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

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

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

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

— Adam Winkler (@adamwinkler) February 20, 2018

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

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

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

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

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

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

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

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

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The Second Amendment and Legislative "Protection" of Constitutional Rights

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

Is state Rep. Chip Baltimore clairvoyant?

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

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

. . .  

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

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

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

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


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

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

 

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

The Omnibus Gun Law referenced in the column was lauded by advocates upon its passage as a victory for Iowans' Second Amendment rights. The Washington Post reported on the passage of the bill back in April 2017:

Branstad, the long-serving Republican governor selected by President Trump to be ambassador to China, signed a bill that many say is the most comprehensive and broadest piece of legislation on gun rights the state has ever seen. House File 517 will, among other things, allow citizens to use deadly force if they believe their lives are threatened; it will also allow them to sue local government officials if they think gun-free zones have violated their Second Amendment rights.

The signing of House File 517 last week marks the end of a decades-long battle for a bill that does more than make incremental changes to the state’s gun laws and will bring Iowa in line with its more gun-friendly neighbors such as Missouri and Wisconsin, said Barry Snell, president of the Iowa Firearms Coalition, an advocacy group affiliated with the National Rifle Association.

“Without exaggeration, House File 517 is the most monumental and sweeping piece of gun legislation in Iowa’s history,” Snell told The Washington Post. “Never before have we passed a bill in which Iowa’s Second Amendment rights are legally recognized, claimed and protected quite so profoundly as this bill does.”

Snell's statement expresses a familiar sentiment, but also reveals a common misconception about how constitutional rights function in relation to laws passed by legislatures. State laws are not needed to recognize or protect constitutional rights. If a law restricts the right to bear arms so much that it violates the Second Amendment, those who are burdened or injured by the law may challenge it and the courts will strike down the law if it is unconstitutional. The scope of the Amendment is a matter of constitutional law that is ultimately determined by the United States Supreme Court -- not by legislatures.

 

While I'm not surprised to see this sort of misleading rhetoric used by the head of an advocacy group, the article quoted Professor Randy Barnett who blogs at the excellent Volokh Conspiracy, who made an unfortunately similar point:

The legislation might make Iowa “the leading edge of protecting the civil right” to bear arms, said Randy Barnett, a law professor at Georgetown University.

“When you have a constitutional right, it often requires the legislation to protect that right,” Barnett said. “That’s what Iowa is doing.”

Of course, states may use legislation or amend their own constitutions to reduce government's ability to restrict gun possession use. For example, Louisiana amended its state constitution to state that any law restricting the right to bear arms is subject to strict scrutiny review in the courts -- a standard that is likely higher than the (admittedly unclear) approach required by the Second Amendment to the United States Constitution. But the action of legislatures is not required to protect constitutional rights -- rather, it is the purpose of judicial review is to place protection of these rights in the hands of the courts.

I've expressed approval for certain state laws or constitutional provisions that effectively expand the scope of federal constitutional rights. Laws that do this in the Fourth Amendment context restricting unreasonable searches and seizures, for example, are a good idea -- particularly when it comes to developing technology like drones. Courts, particularly the United States Supreme Court, may be slow to react to rapid changes and the complexities of new technologies, and the legislature -- if properly informed -- can impose restrictions on law enforcement that fill in holes in the doctrine. Of course, I would not say that these laws are necessary to protect the Fourth Amendment. At most, I'd say that these laws protect people from intrusion by the government in instances where the Fourth Amendment may not apply, or may not clearly apply, and therefore are consistent with the spirit of the Fourth Amendment.

Barnett would likely argue that the courts cannot protect all violations of constitutional rights. People may lack the resources, time, or will to pursue a constitutional challenge, and laws may prevent circumstances from arising that give rise to the violation of rights in the first place. This is evident in the Fourth Amendment context, where unlawful searches and seizures are likely conducted hundreds, or even thousands, of times per day. So on a practical level, legislative restrictions may ultimately result in fewer infringements of people's Fourth Amendment rights.

But this argument does not cleanly translate to the Second Amendment context. The Fourth Amendment has been the subject of numerous Supreme Court opinions that have fleshed out a complex doctrine of protections, exceptions, and consequences of Fourth Amendment violations. But the Supreme Court has refused to return to the Second Amendment after its opinions in Heller and McDonald, opting to deny certiorari in some tantalizing cases and leave the development of Second Amendment doctrine to the lower courts. In the absence of continued Supreme Court attention, the ultimate scope of Second Amendment protection remains unclear and inconsistent across different circuits. To claim that Second Amendment rights are frequently violated and that these violations are not addressed by the courts is therefore a far less certain proposition than a similar claim regarding the violation of Fourth Amendment rights.

When politicians and academics say that laws are necessary to protect and preserve the Second Amendment, they are, at best, speaking imprecisely and, at worst, being misleading. Instead, these advocates are assuming that the unclear Second Amendment right provides certain protections and asserting that these protections be enshrined in the law in order to uphold the right. A lack of clarity and a failure of the Supreme Court to set clear standards or to revisit the Second Amendment are translated into a claimed need for legislative action -- and laws purporting to "protect" the right are born as a result.

The courts will protect rights, striking down overly restrictive laws if need be. Whether the rights are broad or narrow is for the Supreme Court to decide. Legislatures, in turn, may opine as to the spirit of constitutional rights and pass laws that provide additional protections that are consistent with the spirit of the rights. In the case of the Second Amendment, the Iowa legislature apparently believes that the spirit of the Second Amendment protects people from severe criminal penalties should they be carrying a firearm while drunk. And if the rhetoric of Snell and Professor Barnett is to be taken seriously, this is apparently what the United States Constitution envisions as well.

If lawmakers believe that respecting and protecting the Second Amendment requires legislation that decreases the penalties against those who carry firearms while intoxicated, then it's the legislature's prerogative to enact such legislation. All I can say at this point is kudos to Representative Baltimore for his foresight in supporting this legislation, and to implore advocates like Snell and Barnett to think about the legislature's role in relation to the Second Amendment before making overly broad claims.

READ MORE - The Second Amendment and Legislative "Protection" of Constitutional Rights

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

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

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

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

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

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

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

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

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Justice Willet: A Confirmation Hearing Outline

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

From Benson's article:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Me—"New phone. Who dis?"

pic.twitter.com/4Ai31PrSXD

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

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

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

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

What approach will you take toward oral argument?

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

—Vitruvius ("Lego Movie")

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

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

What is that on your sleeve?

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

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

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

READ MORE - Justice Willet: A Confirmation Hearing Outline

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Marijuana, Federalism, and Guns

The Wall Street Journal reports:

28 states and Washington D.C., allow marijuana use in some form, including eight that allow recreational use. Yet federal law still holds that anyone who uses marijuana, even medicinally, is doing so illegally and can’t buy a gun. 

That is upsetting advocates for both gun owners and pot smokers, groups that don’t always find themselves on the same side of the cultural divide. 

“This idea that you somehow waive your Second Amendment rights if you smoke marijuana” is wrong, said Keith Stroup, founder of NORML, which advocates marijuana legalization. “In particular, if you are using marijuana as a medicine, the idea that you have to choose between your health and the Second Amendment is offensive.” 

“The Gun Control Act prohibitions are governed by the Controlled Substances Act, and marijuana remains an illegal, controlled substance under federal law,” said Justice Department spokesman Peter Carr.

This issue sets up the possibility of a very strange coalition of marijuana and gun advocates, and leads to Republican senators like Lisa Murkowski making the following statements:

Ms. Murkowski wrote Attorney General Loretta Lynch in March urging her to reconsider the policy. “In my judgment, the disqualification of an entire class of marijuana users acting consistent with state law from possessing any firearm merits a review of federal legal policy,” she wrote.

The article notes that the Ninth Circuit has held that banning those holding medicinal marijuana cards from purchasing firearms does not violate the Amendment. That case is Wilson v. Lynch, and you can find the full opinion here.

The Wall Street Journal's article highlights one of the numerous tensions between state and federal law regulating marijuana -- tensions that will doubtless gain more attention and prompt more dissent as more states continue to legalize recreational and medical marijuana. Erwin Chemerinsky, Jolene Forman, Allen Hopper, and Sam Kamin explore the federalism conflicts that marijuana legalization creates in this notable article in the UCLA Law Review. Here is the (somewhat lengthy) abstract:

The struggle over marijuana regulation is one of the most important federalism conflicts in a generation. The ongoing clash of federal and state marijuana laws forces us to consider the preemptive power of federal drug laws and the appropriate roles for state and federal governments in setting drug policy. This conflict also creates debilitating instability and uncertainty on the ground in those states moving from prohibition to regulation of marijuana. 

While the courts have yet to establish the precise contours of federal preemption doctrine in this context, we argue that the preemptive reach of the federal Controlled Substances Act (CSA) is relatively modest. Recognition of this legal reality likely played a significant role in the recent Department of Justice (DOJ) decision not to challenge the Colorado and Washington State ballot initiatives legalizing and regulating marijuana for adult use. Yet even if the federal government honors its commitment to not enforce federal drug laws against those complying with robust state regulatory regimes, the ancillary consequences flowing from the continuing federal prohibition remain profound. Banks, attorneys, insurance companies, potential investors, and others—justifiably concerned about violating federal law—are reluctant to provide investment capital, legal advice, or other basic professional services necessary for marijuana businesses to function. Those using marijuana in compliance with state law still risk losing their jobs, parental rights, and many government benefits if their marijuana use is discovered. 

We suggest an incremental and effective solution that would allow willing states to experiment with novel regulatory approaches while leaving the federal prohibition intact for the remaining states: The federal government should adopt a cooperative federalism approach that allows states meeting specified federal criteria—criteria along lines that the DOJ has already set forth—to opt out of the CSA provisions relating to marijuana. State law satisfying these federal guidelines would exclusively govern marijuana activities within those states opting out of the CSA but nothing would change in those states content with the CSA’s terms. This proposed solution embodies the best of federalism by empowering state experimentation with marijuana regulation while maintaining a significant federal role in minimizing the impact of those experiments on states wishing to proceed under the federal marijuana prohibition.

It will be interesting to see if any other conservative politicians join Murkowski in protesting the application of federal gun law to marijuana use legalized by states. Conservative politicians who take Murkowski's critical stance walk a fine line between appearing too restrictive towards gun rights or too favorable towards marijuana users.

I tentatively predict that Republicans in the House of Representatives will be less likely to criticize federal gun laws, even if they are from a state that legalized recreational or medicinal marijuana. This is because their particular constituency may not have favored the policy ultimately adopted by the state, while senators who represent a broader constituency may be more likely to favor policies adopted by their states as a whole. Let's keep an eye on Representatives Kevin McCarthy and David Valadao (both R-CA) to see if they take stances similar to Murkowski. (I'm just naming the members of Congress I was able to locate after doing a Google search for which members of Congress represented any portion of Bakersfield, California).

While waiting for Representatives McCarthy, Valadao, and others to take a stance, I recommend reading the Chemerinsky, et al. article in full.

READ MORE - Marijuana, Federalism, and Guns

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