McGinnis and the Dubitante Opinion

Last week Jake highlighted this Fifth Circuit opinion, United States v. McGinnis, in which Eric McGinnis raised a Second Amendment defense to his conviction under 18 U.S.C. § 922(g)(8) for possession of a firearm while subject to a domestic violence protective order.  Judge Stuart Kyle Duncan applied the two-part framework for Second Amendment challenges that has been adopted by nearly all circuits (including the Fifth Circuit) and upheld McGinnis’s conviction.

However, in an unusual (though not unprecedented) move, Judge Duncan also wrote a concurrence (joined by Judge Edith Jones) casting doubt on the soundness of his own majority opinion.

While our opinion today dutifully applies our court’s two-step framework for post-Heller Second Amendment challenges, I write separately to reiterate the view that we should retire this framework in favor of an approach focused on the Second Amendment’s text and history.

* * *

I would support en banc review in this case or any appropriate future case to reassess our Second Amendment analysis.

Duncan’s concurrence is yet another signal that those judges who have spent decades applying the conventional tiers-of-scrutiny approach to constitutional questions have a revolt brewing. A group of younger, ideologically committed, and vocal judges are ready to upend half a century of jurisprudence for something more steeped in originalist methods, and the Second Amendment (unencumbered by much Supreme Court precedent) is the perfect vehicle for their revolution.  Much of the briefing in NYSRPA v. City of New York dealt with this very question of constitutional methodology, and Judge Duncan’s opinion signals which side he’s on.  (I joined an amicus brief for neither side in NYSRPA.)

But why write this kind of opinion at all?  Dubitante (“doubting”) is the technical term when a judge joins an opinion that he doesn’t quite believe.   What’s odd about Duncan’s dubitante opinion is that he also wrote for the majority.   Why write a majority opinion only to repudiate it a few pages later?  Why not simply write a dissent; or fold his reservations into the majority opinion?  Why not let Judge Jones author the concurrence since she was willing to join it?

After consulting with my colleagues (who are much better court watchers than I) here’s some speculation as to motives, which range from the most benign to the most cynical:

• Judge Duncan is signaling to litigants that there are better arguments to support their relative positions (as one scholar noted here), but he has no priors about the correct outcome of that kind of argument, and thinks those alternative arguments need to be thoroughly explored.
• Judge Duncan was assigned the opinion by a more senior judge (or perhaps the Chief of the Circuit). Rather than write an opinion that would fragment, he explained his reservations in a concurrence.
• Judge Duncan wasn’t assigned the opinion but agreed to write it to help spread the workload. In writing the opinion, he became convinced the precedent was wrong.  Rather than voice his doubts in the majority opinion (leading to the fragmented opinion again), he wrote a concurrence to express them.
• Judge Duncan is trimming. He doesn’t want to be the judge that says all persons subject to domestic violence restraining orders get to have a guns; but he doesn’t yet have a theory based in text, history and tradition to explain why they don’t; so he relies on precedent to get to an outcome he agrees with, but writes a concurrence to register his discomfort.
• Judge Duncan is auditioning. He’s seen judges with impeccable credentials follow clearly established precedent on sensitive political topics and get passed up for a Supreme Court vacancy; so he’s signaling that he’s not really establishment, he’s part of the revolution.

I have no inside knowledge whether some, all, or none of these motives were at work in this opinion.   I do have a suspicion, however, that as the constraints of precedent begin to loosen (as Justice Thomas suggested here), and as the political branches come to regard respect for precedent as a defect rather than a virtue in a judicial officer, we may see more of these remarkable expressions of doubt.