Texts and Guns and Scalia and Posner

By Mike Dorf

My latest FindLaw column unpacks a joke made by Justice Scalia during the oral argument last week in McDonald v. Chicago. Justice Scalia suggested that the lawyer arguing the case for incorporating the Second Amendment was making a tactical error by placing so much reliance on the 14th Amendment's Privileges or Immunities Clause, rather than its Due Process Clause. He joked that the lawyer appeared to be bucking for a position as a law professor.

In my column, I explain why Justice Scalia has the issue not just wrong but backwards: It's textualists like him that have led lawyers (and some academics) to argue that the work of incorporation of the Bill of Rights should be shifted from the Due Process Clause to the Privileges or Immunities Clause. Academics tend to be much more legal realist about such matters. Speaking for myself, it's hard to imagine that constitutional law would look very different if the Supreme Court had incorporated the Bill of Rights via P or I rather than DP. Perhaps there would have been some differences regarding the rights of non-citizens (because P or I protects "citizens" while DP protects "persons"), but even there, one can well imagine the Court having glossed the text to reach the results that seemed sensible. After all, everyone on the Court now accepts that the equal protection clause applicable to the federal government has the same content as the equal protection clause applicable to the states--despite the fact that there is no equal protection clause applicable to the federal government. Yet you don't hear any textualists calling for the overruling of Bolling v. Sharpe--partly because that case, which "reverse incorporates" the equal protection clause, is what allows Justice Scalia et al to invalidate federal affirmative action programs.

My column recounts a bit of the recent history of judicial complaints about the legal academy. Mostly those complaints amount to the charge that legal academic literature is impractical, overly theoretical, esoteric, and incompetently inter-disciplinary. I offer a partial defense which I won't rehearse here. Instead, I want to surface an issue raised by one judicial critic whose critique points in a different direction.

Most of the judges who complain about the impracticality of legal scholarship contend that it does not offer sufficient guidance to the sorts of doctrinal questions they face. Theirs is a narrative of decline: In the good old days, prominent law professors wrote treatises collecting and distilling judicial opinions into decision rules; that sort of thing was helpful in deciding new cases; but since the academy stopped rewarding treatise writers, legal academics have ventured off in other, less helpful directions.

Judge Posner says almost the exact opposite. Consider his critique of University of Chicago Law Professor David Strauss's treatment of the DeShaney case--in which the Supreme Court found no constitutional violation when a state social services agency failed to intervene to protect a small child against repeated (and repeatedly reported) beatings by his father. Strauss criticized the decision but Posner thought Strauss paid insufficient attention to the damned-if-you-do-damned-if-you-don't quality of the dilemma faced by social workers trying to decide whether to remove custody. More than that, Posner faulted Strauss for armchair philosophizing rather than empirical investigation. Posner wrote (on pages 209-10 of Overcoming Law):

the University of Chicago Law School, where Strauss teaches, is one block east of the university's School of Social Service Administration, the nation's premier school of social work. A two-minute walk would have brought Strauss into the presence of experts with whom to explore the practical consequences of a decision the other way in DeShaney. One block east of the law school is the university's School of Public Policy Studies, where Strauss could have consulted experts in public administration and finance to determine the consequences of using the federal courts to enforce, in the name of civil rights, standards of right conduct for public employees engaged in rescue services, broadly defined.

. . . In any sensible division of responsibilities among branches of the legal profession, the task of conducting detailed empirical inquires into the presuppositions of legal doctrines would be assigned to the law schools. Too many constitutional scholars conceive their role as that of shadow judges, writing, in the guise of articles, alternative judicial opinions in Supreme Court cases.

Now I happen to think this is somewhat overstated. Conducting the sorts of empirical inquiries Posner has in mind certainly has an important place in the legal academy, but so does doctrinal work--not conceived simply in the shadow-court way but by leveraging the key advantages that legal academics have: We have the luxury of time and the ability to view issues in wider focus than do judges, who must decide the case before them, no more and no less. This broader conception of doctrinal work is what Judge Edwards was describing in the passage in my column in which he says what he has in mind by practical scholarship, and it's highly defensible.

Nonetheless, if Posner overstates his case, he still has a case: Judges in deciding hard cases should look at the consequences of their decisions, and legal (and other) academics can provide immeasurable help in that respect. So, what will be the consequences of a Supreme Court ruling saying that there is a federal constitutional right to own and possess a handgun applicable against the states? Various amici in the McDonald case have submitted briefs purporting to cite evidence relevant to that question. Writing in what will almost certainly be a dissent, Justice Breyer and/or one of Justices Stevens, Ginsburg, and Sotomayor will likely cite some of this evidence as a reason why the Court is wrong to apply the Second Amendment to the states. But I doubt that the majority will find this evidence relevant. If I'm right, it will be because when Justice Scalia calls for practical help from lawyers and academics, what he means is doctrinal help. Where gun rights are concerned, his notion of what's practical does not include how things work out in practice. As he wrote dismissively and question-beggingly in concluding his opinion in DC v. Heller:

Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Maybe not, but it is the role of the Court to say what the Second Amendment means--and given that there is legitimate contestation over meaning as a textual and historical matter, consequences ought to count for something.