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


Paul said...

The "use" laws all come in the context of other felonies, and thus I am not sure I see the relevance of the 2A as a personal right. For example, unless I am missing something, it seems to me constitutional to enhance a penalty in a drug sale if condoms were used in the exchange even if the condoms are not being "used" in the normal context.

Paul said...

The above should in no way be interpreted as supporting the court's statutory interpretation of the word "use". I still think that the idea that a firearm is "used" when it is provided as part of a trade would rank very high on the list of outright foolishness from a group of otherwise very smart people.

heathu said...

OK, I give up. What are those hieroglyphs at the end Prof. Dorf's post today?

egarber said...

I may not be following correctly, but here goes anyway.

Isn't it possible that an original understanding can at least pose the central principle to be applied -- and that "implementing" doctrine is more about how to make it fit in a contemporary setting? For example, the fourth amendment, even in its original understanding, would seem to mean *something* when the issue is say, infrared monitoring from a helicopter.

With *that* kind of originalism -- not the strict version where you literally say the fourth amendment doesn't apply to infrared monitoring because that technology didn't exist back then -- I think there's still a good bit of utility for it.

Sobek said...

"...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."

I disagree. One cannot implement underlying constitutional values without first ascertaining what those values are.

Sobek said...

Pardon the off-topic, but the Supreme Court handed down an opinion Monday which discussed stare decisis in some detail, with a very unusual vote breakdown. I'd be interested to hear your (pl.) thoughts.

heathu said...

Hey, the hieroglyphics are gone from the post. Or maybe I'm just viewing it at home on Netscape, instead of Work's Explorer. Weird.

Michael C. Dorf said...

Sorry, no time to respond to everything, just Paul's initial question. Here's the idea. Suppose there were a federal sentence enhancer for committing a felony "while giving an anti-government speech." Surely this would violate the First Amendment, because even though the other felony can be proscribed, here the extra punishment is for constitutionally protected speech. (That's more or less the holding of R.A.V. v. St. Paul.) So, if there's a right to gun ownership and possession, then the question arises when enhancing a sentence for otherwise illegal activity on the basis of the otherwise protected gun ownership or possession violates the 2nd Amendment. I don't think there's an easy answer to that question (just as it's tricky in the First Amendment context too).

Paul said...

R.A.V. - to my admittedly limited memory - had nothing to do with enhanced sentences but instead involved criminalizing speech itself. That is, it criminalized (among other things) racism-based speech - a burning cross in that case.

Had R.A.V. simply added an enhanced penalty - as do most hate-crimes - to other crimes (what would have been in R.A.V.'s case any number of vandalism, trespassing or arguably assault) I doubt the holding would have been the same. Certainly there has been no (to my knowledge) serious attack (in the courts) on hate-crime legislation. If R.A.V. is most reasonably read as you suggest, then all hate-crime legislation would be unconstitutional.

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