Monday, June 13, 2016

Second Thoughts About the Ninth Circuit's Second Amendment First-Order Originalism

by Michael Dorf

[Foreword: The following post is about a recent federal appeals court case rejecting a Second Amendment claim. It is not meant as a commentary on the mass murder in Orlando. The timing is coincidental.]

Late last week, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit rejected a Second Amendment challenge to a California law that requires one to demonstrate "good cause" to county officials in order to obtain a license to carry a concealed firearm. The ruling, Peruta v. County of San Diego, is notable in part for what it does not decide. The plaintiffs argued that the SCOTUS rulings in District of Columbia v. Heller and McDonald v. City of Chicago protect an individual right to possess firearms for self-defense that applies outside as well as inside the home, and that in combination with another California law generally forbidding open-carry of firearms, the good-cause requirement operates as a de facto ban on public-carry for anyone who cannot show a special reason for a concealed-carry permit.

The en banc opinion by Judge Fletcher does not exactly reject that argument but concludes that it is not presented because the plaintiffs did not challenge the law restricting open-carry. Consequently, the opinion says, the only question presented is whether the Second Amendment (as incorporated against states and their sub-divisions via the Fourteenth) protects a right to concealed-carry. The court then concludes that there is no right to carry a concealed firearm. Here I want to express some skepticism about Judge Fletcher's methodology, which is exclusively historical.

The opinion carefully parses sources dating back to the end of the thirteenth century to show that there has never been a right to carry a concealed firearm: not in England; not in colonial America; not at the Founding; not in the period leading up to the adoption of the Fourteenth Amendment; and not since. With respect to the state of the law when the Fourteenth Amendment was adopted, the court concludes that "an overwhelming majority of the states to address the question — indeed, after 1849, all of the states to do so — understood the right to bear arms, under both the Second Amendment and their state constitutions, as not including a right to carry concealed weapons in public."

The emphasis, which appears in the original, is there to show that the argument against a Fourteenth Amendment right to concealed-carry is even stronger than the right for possession of firearms in the home that the Supreme Court found persuasive in McDonald. There, it was enough that a "clear majority of the States in 1868 . . . recognized the right to keep and bear arms as being among the foundational rights necessary to our system of Government." Thus, the en banc opinion finds that the historical evidence is more than enough: not just a clear majority but an overwhelming majority of states rejected a right to concealed-carry before the Fourteenth Amendment was adopted. The opinion then discusses post-Fourteenth Amendment case law, which points to the same conclusion: "the Second Amendment right to keep and bear arms does not include, in any degree, the right of a member of the general public to carry concealed firearms in public."

What should we make of the en banc panel's methodology? In some sense, it is a kind of judicial jujitsu. Judge Fletcher is not by any means a thoroughgoing originalist, but Heller and McDonald purport to find the individual right to possess firearms in the home in the historical understandings of the Second and Fourteenth Amendments, so Judge Fletcher turns the tables on the proponents of gun rights: If history is the basis for finding a right to firearm possession in the home, then it is also the basis for rejecting a right to carry a concealed firearm in public.

But do Heller and McDonald really command what we might call first-order originalism in all Second Amendment cases? By first-order originalism I mean an approach that seeks to answer every question about the scope of the Second Amendment (or the Fourteenth, when state and local laws are at issue) by a historical test.

There is some support for first-order originalism in Heller itself. For example, in discussing permissible limits on the right to possess firearms, the Heller opinion states:
[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Although one could argue that these limitations are justified infringements on the Second Amendment right under strict or intermediate scrutiny, that is not what the Heller Court says. It appears from the foregoing language that the key is that these are "longstanding prohibitions." If history validates the right, that right comes with its historical limitations. And if the longstanding-ness of limits on firearms possession by felons or on bringing firearms into sensitive places like government buildings validates those limits, then one can sensibly argue that the longstanding-ness of prohibitions on concealed carrying of firearms validates a permit requirement to carry a concealed firearm.

And yet there is something wrong with first-order originalism even for a right that is justified in originalist terms. Consider the SCOTUS per curiam earlier this Term in Caetano v. Massachusetts. The Massachusetts Supreme Judicial Court upheld a ban on stun guns in part because stun guns were not in common use at the Founding (or in 1868, when the Fourteenth Amendment was ratified). The SCOTUS rejected this approach as inconsistent with Heller and McDonald. The question is not to be resolved by looking to history as a first-order matter. Rather, history establishes the scope of the right as a semantic matter: the Second Amendment covers weapons "in common use," but in giving content to "common use" courts should ask what weapons are in common use today, not what weapons were in common use in 1791 or 1868.

Is the California requirement that one show good cause in order to obtain a license to carry a concealed firearm in public more like a ban on stun guns or a limit on taking firearms into a courthouse? If the former, then it seems that the question should not be answered by a strict historical test, but if it's more like the latter, then a historical test does apply. I confess to not having any idea how to be able to answer the question. It strikes me as like asking whether the question of how tall the Empire State Building is more like the question of what is the best Beethoven symphony or more like the question of whether the thumb is a finger. It's a ridiculous inquiry.

Put differently, there is support in the Court's Second Amendment cases for either a strictly historical, i.e., first-order originalist, approach to exceptions or for what we might call an "implementation" or "construction" approach. Under the latter--which Caetano exemplifies--historical sources are crucial in deriving the original meaning of the constitutional provision, but once that meaning has been ascertained, courts implement that meaning by reference to considerations of logic, public policy, common sense, and other contemporary factors. The latter approach is what is sometimes called semantic originalism.

I think Heller and McDonald were wrongly decided. Moreover, I'm not an originalist of any sort. However, I do think that if one is going to be an originalist, semantic originalism makes a lot more sense than first-order originalism. Many questions will be unanswerable by first-order originalism, because they only arise in modern circumstances. Moreover, fashioning sensible doctrine requires the courts to make the law cohere, which is not always possible using a strictly historical test.

How would an implementation approach cash out in Peruta? As I explained in a symposium article in 2008, there is a plausible argument that Heller only protects a right to possess a firearm in the home. If I were betting, I would say that the justices in the majority in Heller and McDonald would find that the right extends to public places, but because Justice Scalia was one of those justices, the question whether the right applies outside the home is now likely tied up in the question of who will be the ninth justice. If a nine-justice Court eventually rules that Heller and McDonald do not apply outside the home, then the en banc decision in Peruta will be easy to defend.

But suppose that the right to possess firearms does apply outside the home. At that point, one might reasonably conclude that a state can ban open-carry or concealed-carry but not both. If so, the result in Peruta still could be correct, but only on narrow technical grounds. The point would not be that there's no right to concealed-carry. It would be that California has to be given the choice whether to remedy its constitutional violation by permitting either open-carry or concealed-carry, and that by failing to challenge both the state and local laws, the plaintiffs deprived the state of that choice. In a different case, however, a state might be compelled to permit concealed-carry, at least if it made the judgment that permitting open-carry would be worse.

6 comments:

Joe said...

I think "logic, public policy, common sense, and other contemporary factors" is ultimately how the Supreme Court decides things anyways & the form of Heller was strongly a result of Scalia drafting it. It also is a logical approach.

Alito wrote McDonald v. Chicago & wrote a strong concurrence in the stun gun case (but did not join Scalia/Thomas' dissent from denial in another case. And, is less "first order origianlist" too from what I can gather. At to guns outside the home, there is language in Heller that the right is at its strongest in the home. Like Lawrence v. Texas, strange bedfellows perhaps, it is pretty clear to me the right isn't just at home.

The stun gun (involving a public place) in effect assumed this & the reference to public "sensitive places" did too (why the exception if only at home?). The question then would be the scope of the right in public places & I can see with the right justice there being at least five votes for a limited "may carry" regime where to obtain a license to carry you would have to be a member of various groups. A concurrence in this opinion agreed with this approach and the majority might too if pressed to do so.

Meanwhile, there would be a right to travel (such as an unloaded gun in the trunk of a car) with a gun. Anyway, personally, if we are going to allow people to have guns, not sure if it is a better idea to have open carry. Seems more liable to cause problems in some cases.

Shag from Brookline said...

Subtitle for this post: "And Second Thoughts on the Second Amendment." I'm with Mike on this aspect.

Shag from Brookline said...

Mike, with respect to your bracketed foreword, I have two words: Samantha Bee. [Caution, some of the language protected by the 1st A may be offensive to some and the whole schtick obviously offensive to the NRA and 2nd A absolutists.]

Hashim said...

Mike: I don't think the dichotomy you're drawing is correct, at least insofar as one practices expected-applications originalism. A practice that was widespread and uncontroversial at the time of the enactment of the relevant provision (eg, the bans listed in heller; concealed-carry limits if peruta's history is correct) is necessarily constitutional under the original meaning of the provision, because it's dispositive proof of what that meaning was since we shouldn't presume the entire country didn't understand the meaning of what they had just enacted. But where a practice wasn't in widespread existence at the time (stun-gun bans, licensing reqs), courts need to infer what the understanding of that practice would have been, based on what the historical evidence shows about the semantic meaning, as informed by the practices that did exist. In short, what determines whether "first-order originalism" is dispositive is not the the type of practice at issue, but whether there's sufficient historical evidence about that practice to resolve the question.

Put differently, there would only be inconsistency in the courts' "first-order originalism" if they started *invalidating* practices that were *historically grounded* based on *contemporary* views, or started *upholding* practices that were *historically rejected* based on *contemporary* views. Their resolution of practices where there is insufficient historical evidence to answer the first-order question presents a fundamentally different issue.

Joe said...

One thing also coincidental is the NRA plot point in Sunday's night Veep episode.

Greg said...

I'm intentionally not taking a position on the second amendment cases here, just using them as examples.

"Is the California requirement that one show good cause in order to obtain a license to carry a concealed firearm in public more like a ban on stun guns or a limit on taking firearms into a courthouse?"

Based on the record from the Ninth circuit in Peruta, I'd say that the court conclusively demonstrated that it's the latter. They demonstrated that not only did concealed weapon bans exist at the time of ratification, but many states added them between ratification and the 14th Amendment. This doesn't mean that they necessarily were constitutional (that seems to have been somewhat controversial even then,) but it means that relying on the historical record (first-order originalism) is valid.

I don't see Caetano as being somehow contrary to first-order originalism. The question presented there is essentially "is a stun gun a gun?" I'll accept that the answer isn't clear-cut, but I don't think that makes either choice necessarily inconsistent with first-order originalism. It would be making a mockery of the constitution to argue that Winchester firearms were not covered by the 2nd Amendment because the company was founded in 1855 and did not exist in 1788. First-order originalism doesn't have to go THAT far.

Now, if the court found that a stun gun was NOT a gun, yet was still covered by the 2nd Amendment, that would require semantic originalism.