Wednesday, January 09, 2008

What's So Funny 'Bout Original Understanding?

Yes, yes, I know, the big news is the NH primary, but I haven't the heart to blog about it. Okay, maybe a tiny bit. A week ago, if you had said that Obama would win Iowa handily and finish 3 percentage points back of Clinton in NH, I'd have said that he had the momentum in this race. But the implosion of Clinton's lead over the weekend created such high expectations for Obama that a NH close second was a disappointment, giving Clinton the opportunity to claim that her campaign has the momentum. In the next week, look for the Clinton camp to sell the story that of course Obama will win South Carolina, given how many African American voters there are in the Democratic primary there, thus claiming that Obama's victory in SC "doesn't count," and leaving her supposedly with the momentum heading into "Tsunami Tuesday." As for the Republicans, what can I say? Fred Thompson, we hardly knew ye.

Now, on to the title of this entry, which is a brief follow-up to my post from this past Saturday's AALS session on the Second Amendment. During the Q&A, there was some interesting discussion of what the impact would be of a ruling invalidating the DC gun ban on federal laws that make it a crime to "use" a gun in connection with other offenses. The Court has interpreted use fairly broadly and the penalty enhancers for gun use---even when the relevant guns were merely owned but not used in the conventional sense---are very substantial.

The questioners and panelists had interesting things to say about this question, but I noted that what they had to say was almost entirely based on analogical and prudential reasoning. No one asked what the original understanding was with respect to penalty enhancers, and for good reason. There was no original understanding on this issue. As I observed, should the Court recognize a right to individual ownership and possession of firearms, it will have to basically invent a whole set of doctrines about the scope and limits of that right. Professor Volokh, who supports the individual right interpretation of the Second Amendment, nodded in agreement.

And so the question for self-styled originalists is how much of constitutional adjudication concerns such basic questions as whether the Second Amendment is an individual or a state right, which can, at least in part, be answered by reference to the original understanding, and how much of constitutional adjudication concerns such secondary questions as what doctrines (in Professor Fallon's terms) "implement" the underlying constitutional values? If we are much more concerned with the second kind of question, that is a very substantial limit to the utility of originalism.

Posted by Mike Dorf