Wednesday, June 25, 2008

Where Do Gun Rights Come From?

(Updated twice) Tomorrow, the Supreme Court will decide DC v. Heller. Based on the oral argument and the fact that Justice Scalia is due for a majority opinion, it's likely that the Court will rule against the District. How broadly or narrowly the Court rules will play an important part in what the decision means in practice: Will states and municipalities that are not federal enclaves have more, less or the same power to restrict guns? What test will the Court use for deciding whether a regulation that falls short of a prohibition on a class of firearm is valid? Strict scrutiny? Undue burden? Reasonable relation? Etc.

These are important questions and they will be much mooted in the coming days, weeks and even years. For now, though, I simply want to note how completely the dominant understanding of the Second Amendment will have changed in such a short time. As recently as 1990, retired CJ Warren Burger referred to the notion that the Second Amendment confers a personal right to gun ownership for self-defense as a "fraud." Admittedly, Burger wrote this in Parade Magazine rather than the Harvard Law Review, but the point is not so much that his analysis was so spectacular (although it was okay, and better reasoned than many Burger opinions). The point is that a mainstream, generally conservative Chief Justice thought that the view about to become the law of the land was not just wrong but fraudulent.

How did that change so quickly? Here I'll briefly explore four explanations. I'll try to poke holes in the first two, widely accepted, explanations, before offering the final two as my own.

1) Historical Research

Proponents of the personal right view have produced a torrent of essays, articles and books in the last two decades purporting to show that in 1791 the Second Amendment was understood to protect a personal right. Some pro-gunsters even call this the "standard model," which is pretty funny if you know any physics---the field from which the term is borrowed---because the one thing we can say for certain about the standard model is that it's not a complete description of physical reality, as it takes no account of gravity. Okay, I now realize that's not even mildly funny, but you have to understand that other than Richard Feynman, physicists aren't especially funny, and Feynman is dead.

But I digress. Here's what I want to say about the 2nd Amendment standard model: It doesn't provide a causal account of the Supreme Court's change in thinking. There is a large body of scholarly literature purporting to show that the 2nd Amendment was not originally understood as a personal right, or that to the extent that it was so understood, it came with the possibility of such pervasive government regulation as to have no real content. I find this body of research more persuasive than the "standard model" research, but I understand how fair-minded historians could reach different conclusions. Under such circumstances, a Justice can find a basis in the original understanding for a variety of positions, and it's simply not plausible to think that it's the original understanding, rather than the Justice's priors, that's doing the deciding, as opposed to the rationalizing. How else to explain that I'm able to predict that the Court will line up Roberts/Scalia/Kennedy/Thomas/Alito for the "standard model" and Stevens/Souter/Ginsburg/Breyer against it?

Even apart from that cold wet blanket of legal realism, original understanding doesn't convert a "fraudulent" view into the law without a lot of help from other factors. Suppose some historian were to discover incontrovertible evidence that the Ninth Amendment was originally understood to empower the Justices to decide cases according to what their consciences tells them is the best understanding of natural law. Or suppose that there were overwhelming evidence that the Ninth Amendment was understood to confer, among other things, a right of minors to smoke tobacco. Isn't it clear that various Justices would nonetheless do everything in their power to controvert the incontrovertible? Changes in historical understanding rarely lead to changes in law, absent some other strong factor or factors.

2) The Liberals

A popular theory among some journalists and academics has it that the personal right view of the 2nd Amendment gained traction because it was endorsed by prominent liberals. If even liberals accept the personal right, the theory goes, then no one can hold out.

There are two problems with this theory. First, very few prominent liberals actually took this view. By my count, there were three: Sandy Levinson, Larry Tribe, and Akhil Amar. Amar isn't all that liberal to begin with, but let's put that aside. He and Levinson are such well-known contrarians---constantly dazzling their readers by pulling counter-intuitive rabbits out of hats in their work---that one can almost identify an orthodoxy by the fact that one or both of them are challenging it. As for Tribe, well, yes he did briefly sign onto the personal right view, but he loaded it up with the acceptability of so much regulation as to make the gesture practically useless to the pro-gun forces.

Now consider the second problem with the blame-the-liberals theory. Let's suppose it were true that prominent liberals had gone over to the personal right side. What causal difference could that possibly make? When have Justices Scalia and Thomas cared what liberal law professors thought, except perhaps as a reason to vote the other way? In Bush v. Gore? In Lawrence v. Texas? In Grutter v. Bollinger? Sure, if you're a conservative who believes the Second Amendment protects a personal right to self-defense, you're happy to be able to say "see, I'm not just some right-wing gun nut. Even notorious leftists like Sandy Levinson and Larry Tribe agree with me." But that doesn't explain why believing the Second Amendment protects a personal right to gun ownership for self defense is an ideologically conservative position in the first place.

3) The Vast Right-Wing Conspiracy

Why do people who support gun rights also tend to oppose abortion rights and favor the death penalty? And why do people who support abortion rights tend to oppose gun rights and oppose the death penalty. (I say "tend" deliberately. Obviously, one can find thousands of people who support each of the eight combinations in the 2x2x2 matrix.) The answer is partly a matter of association. If you are passionately pro-life, say, and you start attending meetings of like-minded people, you may find yourself drawn into conversations about other issues. Perhaps you were leaning against the death penalty (a combination of positions favored by the Catholic Church) but this is not an issue about which you previously cared very much. Now people who share your pro-life view on abortion start telling you that the Bible says a life for a life, and that convicted murderers are fundamentally different from innocent unborn babies, so you come to share their pro-death penalty view as well. Eventually the conversation turns to gun control, and once again, the principle of protection for innocent life is offered: The bad guys already have guns; it's outrageous for the government to disarm law-abiding citizens. Pretty soon, you've signed up for the whole program.

I've offered a rationalizing principle for the "conservative" concatenation of views on these three issues, and it's not a bad rationalizing principle, but the truth is I could have given a rationalizing principle for any combination on the 2x2x2 matrix. Someone could be pro-choice on abortion and pro gun rights on generally libertarian grounds. And indeed there are some people who belong to both the ACLU and the NRA. Such people might or might not favor the death penalty, which is not a strictly libertarian issue.

I don't have a complete account of how pro-life, pro-gun, and pro-death penalty positions all came be seen as politically conservative, but once that happened, it was not all that hard to predict that more and more conservatives would tend to hold all three positions. That's especially true of conservative legal elites. You might have signed up for the Federalist Society because you're anti-tax, but then you were bombarded with material to the effect that the Constitution does not protect abortion, does protect a personal right of gun ownership, and does not forbid the death penalty. The material is not exactly propaganda. The Federalist Society and its younger liberal counterpart, the American Constitution Society, are open to people with diverse views, and encourage open debate at their events. But they nonetheless train members to associate certain ideas with the cause.

(4) It's the Culture Wars, Stupid

The vast right-wing conspiracy explains how the personal right view of the 2nd Amendment, once adopted as a conservative position, spread to conservative elites, including a majority of the Supreme Court. But it does not explain how it became a conservative position in the first place. The answer to that question, I think, is mostly demographic.

Over the last generation, Southern, rural and exurban voters have become increasingly Republican, while the urban core and much of the suburbs have drifted Democratic. Southerners and rural populations have, for a variety of reasons, traditionally been much more attached to guns than the urban and suburban population, and worry, with some reason, that urban-dwellers don't understand why they value their guns. Think of Howard Dean's reference to "gun racks" and Barack Obama's musings about how the same people "cling to guns." Both comments likely alienated the very voters Dean and Obama were hoping to court. More generally, people who are conservative/Republican today are more likely than a generation ago also to be gun owners who favor gun rights.

In addition, the country as a whole is probably drifting in favor of a right to gun ownership---or at least the country's legislators are. As David Sedaris says near the end of his spectacular new book, When You Are Engulfed in Flames: "It's safe to assume that by 2025, guns will be sold in vending machines, but you won't be able to smoke anywhere in America."

Posted by Mike Dorf


Sobek said...

So the Eighth Amendment now, for the first time ever, prohibits the death penalty for child rape, based on "evolving standards of decency." What is the source for determining those standards? It certainly isn't the actual will of actual people, who overwhelmingly elect legislatures that impose the death penalty.

Could it be that Justice Kennedy simply makes crap up and calls it the law?

This is why originalism is so important. If the Court can make law based on evolving standards, with no objective indicia of what those standards are or how they are measured, then what is to prevent the conservatives from deciding that "evolving standards" requires Roe v. Wade be overturned, regardless of evidence to the contrary? What prevents them from deciding that homosexuals can be stoned to death, as in Iran?

You can argue that our standards have not so evolved, and you would be right. But Kennedy demonstrates that the facts simply do not matter. Our standards have evolved because five people say they have evolved, and piss off, vast majority of America.

heathu said...

Is one opinion (not a published legal opinion mind you, but an interview) by a justice, even a CJ, really enough to say the collective rights view was "dominate," in the Supreme Court, or that the acceptance of the individual rights view would represent the "Supreme Court's change in thinking"? CJ Roberts, during his confirmation hearing, remarked that whether or to what extent the 2nd Amendment protects a right to own guns is very much an open question. The collective rights view does dominate the lower appellate courts, (based on an overly broad reading of Miller, IMHO) and was the position of most (if not all) presidental administrations until this one, but to say there has been a dominate Supreme Court view on a matter that the Supreme Court has said so little on strikes me as an overstatement.
But to answer the question posed by the title of today's blog entry, how about "The operative clause of the 2nd Amendment"? Looks like we find out tomorrow.

Sobek said...

"How else to explain that I'm able to predict that the Court will line up Roberts/ Scalia/ Kennedy/ Thomas/ Alito for the 'standard model' and Stevens/ Souter/ Ginsburg/ Breyer against it?"

Obviously the former are right-wing radical thugs (except for Kennedy), and the latter are bleeding-heart liberals (except for Stevens). No one is shocked by openly political splits.

It makes me wonder all the more why you asserted not too long ago that Ginsburg is a "consensus-seeking moderate." Unless you were joking (sarcasm doesn't come through internet posts very well), I fail to see how anyone could defend such an assertion.

"But that doesn't explain why believing the Second Amendment protects a personal right to gun ownership for self defense is an ideologically conservative position in the first place."

Because conservatives reject nanny-statism and prefer self-reliance.

Actually, the Second Amendment presents a puzzle that I haven't been able to resolve yet. In theory at least, liberals do not trust the government to regulate or monitor our speech (notable exceptions for hate speech). They do not trust the government to prosecute criminal defendants, to impose penalties that are not cruel and unusual, to seize evidence without probable cause, to wage war and collect intelligence, etc. And yet they trust the same government absolutely, beyond any reservation whatsoever, with our personal protection, in the form of the same police officers they so distrust when it comes to, say, the Fourth Amendment. Why is that? Especially given that, without a right to defend my family, a right to free speech can very quickly become moot.

Paul Scott said...

One confusion I have always had with Originalism is its sole application to constitutional law. Why are we using one set of rules to interpret one positive law and another set to interpret all of positive law?

Particularly, it has always struck me that Originalism and statutory construction by legislative intent are essentially the same thing, yet typically a jurist that embraces the former almost uniformly rejects the later.

Statutory text is to be read with today's common meaning of the text and constitutional text is to be read with the meaning of the text on the day (or period) it was written.

For my part, I don't particularly care what means a jurist may use. What I care most about is that (s)he makes a reasonable attempt to objectively interpret the law. I think it is mostly (I would suggest the Justice Thomas is likely a counter example) clear that persons who assert a particular method of interpretation is "the" correct one are merely attracted to the substantive results those methods typically generate. Again, I think that is not necessarily a bad thing (apart from the arrogant dismissal of opposing views) so long as the jurist does his or her best to faithfully apply the principals (s)he espouse without regard to the outcome of individual cases.

The sources for Justice Kennedy's "evolving standards of decency", for example, are fairly well delineated in his (typically) lengthy opinion. It was built mostly on reasonable attempts at harmonizing precedent and. again, was spelled out fairly clearly. In attempting to harmonize prior cases, Kennedy looked at, among other things, the "national consensus" and found death for child rape to be absent from that consensus.

At a minimum, this approach seems faithful to the plain meaning of "unusual" in the text of the eighth amendment. I can hardly understand, however, how someone reading the (again, typical of Kennedy) voluminous opinion could actually determine that Kennedy just "ma[de] crap up." Certainly his census of state statutes on the matter is an "objective criteria." There is no subjectivity involved in counting. This particular objection stands in stark contrast to Originalism in that Originalism is necessarily rife with subjectivity and becomes more and more so as time passes and more "versions" of the nuances of American revolutionism permeate our historical academic sources.

His reasoning is clear, even if one disagrees with it. Further, his approach in drafting the Kennedy reasoning strikes me as entirely consistent with his approach to constitutional law, generally. I fail to see how a single constitutional doctrine, Originalism or otherwise, can rescue us from the fate you seem to fear.

Sobek said...

"Certainly his census of state statutes on the matter is an 'objective criteria.'"

If applied in any kind of rational way, then maybe. But this is Kennedy, so we have nothing of the sort.

First, Kennedy notes that six states (GA, NC, LA, FL, MS and TN) re-enacted the death penalty after Fuhrman, then concedes that MT, OK, SC and TX followed Louisiana's lead. In Kennedy math, that means "44 states have not made child rape a capital offense." Maybe he took geography lessons from Barack Obama. He gives no apparent weight to pending statutes in other state legislatures. They can piss off as well, I guess.

He next asserts, with nothing whatsoever to back him up, that legislative inaction in the other 44 states says something about evolving standards, although legislative apathy is really only indicative of apathy. If he could argue that states had affirmately rejected such legislation, he might have a case.

All of that goes out the window, however, when it comes time to compare apples to oranges. In Atkins, the Court addressed the issue of executing the mentally retarded. If anyone here can explain to me what the defendant's mental capacity has to do with the nature of the crime, I would be most grateful. Certainly Kennedy doesn't even try to explain.

Far more important to Kennedy's analysis, and the closest he comes to anything resembling honesty, is his section on "the Court's own judgment," aka "I'm a Supreme Court Justice and you're not, so you can suck it." Thanks for simplifying things, Anthony. Sure would suck if I had to spend my time looking for you to explain yourself.

Honestly, if Roe v. Wade is overturned on the basis of "evolving standards of decency" that actually contradict empirical evidence, and based on "the Court's own judgment," will you protest? Or will you shrug and say, "hey, it's the Supreme Court, they know what's decent"?

In the California marriage cases, the Court relied on evolving standards of decency when striking down the will of 61.4% of Californians. The actual facts meant nothing whatsoever. You have no problem with this?

Will you have a problem with this sort of jurisprudence if a conservative replaces Stevens and Ginsburg with two more Scalias?

egarber said...

If the Court can make law based on evolving standards, with no objective indicia of what those standards are or how they are measured, then what is to prevent the conservatives from deciding that "evolving standards" requires Roe v. Wade be overturned, regardless of evidence to the contrary? What prevents them from deciding that homosexuals can be stoned to death, as in Iran?

For me, the eighth amendment might be the only amendment that tells us specifically to apply the test of "evolving standards" -- since "unusual" is by definition contemporary in flavor.

With the rest, I think the court must apply original principles, albeit in a way that makes them "more perfect" in a contemporary setting (using the ninth to err on the side of personal liberty, etc). So while we likely disagree on what "originalism" should mean, I do adhere to a version of it.

Sobek said...

"...since 'unusual' is by definition contemporary in flavor."

1. And yet courts have not approached constitutional questions so narrowly, as when they invent a right to gay marriage based on contemporary standards of decency (and lying to us about what those standards are).

2. Even if Courts were as narrow as you, Kennedy pretends he's relying on contemporary standards, but he's really relying on nothing more than his own opinion of what contemporary standards are. He's making it up out of whole cloth.

Just like the California Supreme Court did. Just like the liberal justices all do in death penalty cases. The evidence overwhelmingly proves that Americans favor the death penalty, as demonstrated time and again by state legislatures, and yet they are arrogant and fundamentally dishonest enough to tell us otherwise.

egarber said...

as when they invent a right to gay marriage based on contemporary standards of decency (and lying to us about what those standards are).

As I understand the California ruling, it was based on a finding that sexual orientation is a suspect class under the California constitution -- not an open ended statement about evolving standards. So I think it's much more accurate to say that the court reached a more enlightened view of equal protection, relying on that original *principle* while making it more perfect.

In this case, I think it's the exact opposite of your claim. The contemporary standard, if there is one, is limiting marriage to opposite sex couples. After all, the California supreme court overturned a statute passed by a majoritarian assembly. In other words, this was about protecting a minority (clearly a mandate in constitutions at both the state and federal level). You can disagree about the reach of equal protection, but it’s a pretty straight line from say, throwing out miscegenation laws, to throwing out laws that discriminate based on sexual orientation. That’s a far cry from judges arbitrarily “inventing rights” based on contemporary standards.

Chris said...

"...the six combinations in the 3x2 matrix..."

Six possibilities? You mean 8--it's a 2x2x2 matrix.

Pro-DP, pro-abortion, pro-gun
Anti-DP, pro-abortion, pro-gun
Pro-DP, pro-abortion, anti-gun
Anti-DP, pro-abortion, anti-gun
Pro-DP, anti-abortion, pro-gun
Anti-DP, anti-abortion, pro-gun
Pro-DP, anti-abortion, anti-gun
Anti-DP, anti-abortion, anti-gun

Michael C. Dorf said...

I concede error. Chris is right that should be 2x2x2 and therefore 8. Yikes! I'll fix it for posterity but let me state for the record that I blew that one.

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及川奈央 動画 及川奈央 無修正 及川奈央 AV 及川奈央 画像 及川奈央 裏 紅音ほたる モロ 紅音ほたる 無修正 紅音ほたる マンコ 紋舞らん 無修正 紋舞らん 動画 紋舞らん 画像 桜田さくら 無修正 桜田さくら 動画 桜田さくら 画像 長瀬愛 無修正 長瀬愛 動画 長瀬愛 画像 菅野亜梨沙 無修正 菅野亜梨沙 動画 菅野亜梨沙 画像 宮下杏奈 無修正 宮下杏奈 動画 宮下杏奈 画像 白石ひとみ 無修正 白石ひとみ 動画 白石ひとみ 画像 平井まりあ 無修正 平井まりあ 動画 平井まりあ 画像 笠木忍 無修正 笠木忍 動画 笠木忍 画像 友崎亜希 無修正 友崎亜希 動画 友崎亜希 画像 大沢佑香 無修正 大沢佑香 動画 大沢佑香 画像 中田結衣 無修正 中田結衣 動画 中田結衣 画像 常夏みかん 無修正 常夏みかん 動画 常夏みかん 画像 姫川麗 無修正