Monday, March 24, 2008

Second Amendment Minimalism?

As promised last week, my latest FindLaw column argues that there's almost no way for the Supreme Court to strike down the challenged law in D.C. v. Heller---as it appears inclined to do---without addressing both the standard of judicial review and the question whether the Second Amendment is incorporated against the States. Unless that is, the Court writes the sort of opinion that it wrote in several important cases last Term, purporting to adhere to precedents but in fact disregarding them or making other, equally unpersuasive moves.

Here I'll raise a question about CJ Roberts and the Roberts Court more broadly. What is attractive to him/them about this brand of faux minimalism (which even Justice Scalia decried last Term in roughly the same way)? One possibility is that Roberts, Alito and occasionally Kennedy are in fact maximalists who feel the need to pose as minimalists to maintain an image of moderation consistent with their statements at their respective confirmation hearings. But that's cynical and probably inaccurate. (It's also pretty clearly wrong about Kennedy, who often writes maximalist opinions.) I suspect that Roberts and Alito (and this was true of Justice O'Connor too) actually believe in the virtues of minimalism and so strive to write minimalist opinions. But that hypothesis leaves us with an even greater mystery: Given that these people are excellent lawyers, how can they fool themselves that an opinion inconsistent with earlier precedents doesn't overrule those precedents?

I actually don't have a hypothesis for that question and so invite discussion in the comments. Meanwhile, perhaps I'll be proven wrong in Heller and the Court will fully deal with the review standard and incorporation questions. And actually, I'd PREFER a somewhat disingenuous opinion if it leaves the Second Amendment unincorporated, as that would leave cities and states around the country free to enact strict gun control laws if they see fit---an approach that should at least have some appeal to those who value federalism.

Posted by Mike Dorf


egarber said...

In some ways, I think this is a pickle for the four conservatives.

Part of me thinks that at least a couple of them doubt the correctness of incorporation overall, despite the history of Bingham’s intent, etc. So they might not want to be the core plurality that incorporates a new right against the states, even if it’s one they personally value.

I suppose they could rule that the second amendment was intended to protect the rights of all able-bodied individuals (regardless of their militia membership) against federal encroachment only – leaving the states to exclusivley own “regulation” of ownership. But the problem there is that such a holding would be an affirmative conclusion that the Second Amendment is NOT incorporated; I don’t think the four conservatives want to go there either.

Michael C. Dorf said...

One other possibility, suggested to me by an astute reader's email, would be for the Court simply to say that there's no anomaly. something like this: "We assume for the sake of argument that the 2nd Amendment is not incorporated, but nonetheless, even non-incorporated Bill of Rights provisions operate of their own force against the federal govt when it legislates for D.C." That's not a bad argument, but it would then need to confront the the fact that DC was selected as the Capital after PA refused to call out the militia to defend Congress in Philly. Congress wanted DC to be able to protect itself at least as well as the States could. So, at least for originalists, the anomaly would remain.

Mortimer Brezny said...

I really don't understand how Michael Dorf, of all Kennedy clerks, could oppose any individual right. Aren't you the savior of abortionists everywhere?

Michael C. Dorf said...

I assume mortimer brezny simply means to be making a joke. Only a fool would support every right anybody articulated. But even if he is merely joking (or calling me a fool), his point only makes any sense if we assume something like the following: "The Constitution doesn't even mention abortion; yet the Court has found an abortion right; so a fortiori, it must contain an individual right to possess firearms for private use, because there's clearer textual support for that right than for the abortion right." I have responded to this argument (many times) before, and so I'll just quote what I said in a symposium article in the Chicago-Kent Law Review:

Note the understanding of constitutional interpretation implied by this criticism: surrounding the core of each textual provision are concentric circles of related values; if a right is recognized at some distance from the core, then a fortiori, all rights at lesser distances must be recognized as well. Thus, if contraception lies a distance X from the Fourth Amendment (and other provisions), recognition of a constitutional right to contraception implies recognition of a right of armed self-defense, provided that such a right lies a distance less than X from the Second Amendment.

Although this view of constitutional interpretation finds some superficial support in the Court's discussion of "penumbras" and "emanations" in Griswold v. Connecticut, it is deeply flawed. The right to scream profane threats at passersby is arguably closer to the text of the First Amendment than is the right to publish on the Internet a statement of political support for a presidential candidate; the former is literally "speech," while the latter neither employs vocal chords nor a printing press. Yet no one would seriously argue that protection of the latter implies protection of the former. To the extent that talk of penumbras and emanations leads us to think that constitutional interpretation in hard cases is a matter of measuring the distance from the text, it is simply another unsuccessful effort to banish value judgments from constitutional interpretation.

Mortimer Brezny said...
This comment has been removed by the author.
Mortimer Brezny said...

I have responded to this argument (many times) before,

Because you make an easy target for the charge of hypocrisy.

To the extent that talk of penumbras and emanations leads us to think that constitutional interpretation in hard cases is a matter of measuring the distance from the text, it is simply another unsuccessful effort to banish value judgments from constitutional interpretation.

Well, no. Apparently, your interpretive method rejects reading the text altogether! I wrote: "Aren't you the savior of abortionists everywhere?"

Clearly there is a value judgment there. Many argue for abortion as a constitutional right because they believe in a right to bodily integrity. Some even go so far as to consider a fetus a hostile alien invader and root the right in self-defense. The problem for you, penumbras or not, is that you appear to be in favor of self-defense when it means killing babies, but against self-defense when it means protecting families from home invasion. It seems the consistent theme in your interpretation of the constitution is that you are in favor of death.

Yes. That is a value judgment.

Michael C. Dorf said...

Who said I was against a right of self-defense? I have actually written---in the very article I quote here---that there's a damn good argument for an unenumerated right of self-defense. Find another villain, mortimer.

Mortimer Brezny said...

[T]here's a damn good argument for an unenumerated right of self-defense.

But not if you use a pistol, because the Second Amendment, coincidentally, is indecipherable.

Tam said...

Prof. Dorf:

You should give up in your attempts to debunk Mortimer Brezny's arguments. In fact, I'll go further - you should resign from your post at Columbia Law School, effective the end of this semester!!!

Mortimer Brezny said...


No, he shouldn't. He has an unenumerated right to tenure.

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