Bostock, Textualism and the Meaning of “Bear Arms”

This week, in Bostock v. Clayton County, the Supreme Court held 6-3 that discrimination “because of sex” in Title VII of the Civil Rights Act of 1964 includes discrimination against gays, lesbians, bisexuals and transgender persons.  The decision was a huge victory for LGBTQ equality, but I want to discuss its implications for Second Amendment doctrine.  In sum, the meaning of “bear arms” in the Second Amendment – still undecided by the Court – may come down to what kind of textualism the Justices adopt – that of Justice Neil Gorsuch’s majority opinion in Bostock or that of Justice Brett Kavanaugh’s dissent.

Bostock dealt with allegations of discrimination in employment by a gay man and transgender woman.  Both claimed they had been discriminated against “because of sex” in violation of Title VII.   Justice Gorsuch wrote for the majority and stated the task simply.   It is to apply the statute “in accord with the ordinary public meaning of its terms at the time of its enactment.”   He then broke Title VII apart into its constituent terms.   Title VII prohibits “discrimination . . . because of  . . . sex.”  The ordinary meaning is easily applied.   Discrimination means “treating [an] individual worse than others who are similarly situated.”   “Because of” means “by reason of or on account of.”  “Sex” means the “status of male or female” as determined by “reproductive biology.”

Putting the statute back together, discrimination against a man on account of his sexual attraction to other men; or to a woman on account of her sexual attraction to other women; is discrimination motivated by the prohibited characteristic – the sex of the person as a man or a woman.  Why?   Because a man attracted to a woman or a woman attracted to a man would not suffer similar treatment, and the only distinguishing (and prohibited) factor between the two sets of cases is the sex of the person.

Justice Kavanaugh also applied the plain textual meaning of Title VII and came to the opposite conclusion.  First, Justice Kavanaugh says, “courts must follow ordinary meaning, not literal meaning.”  Furthermore, “courts must adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase.”  And that is because “a phrase may have a more precise or confined meaning than the literal meaning of the individual words in the phrase.” According to Kavanaugh, breaking the text of Title VII apart into “discrimination” and “because of” and “sex” distorts, rather than reveals, the judicial task.   The task is to determine what “discrimination because of sex” meant to Congress in 1964, and that phrase didn’t include discrimination based on sexual orientation according to the dissent.

It’s easy to see how these textualist disputes are germane to the open question of the meaning of “the right . . . to . . . bear arms.”  Taking these words literally, as Justice Gorsuch does in Bostock, in 1791 “bear” meant “carry”; “arms” meant “weapons,” and therefore a right to “bear arms” meant simply a right to “carry weapons.”   This is the predominant argument among gun-rights advocates.   Conversely, as Justice Kavanaugh suggests, the ordinary meaning of “bear arms” is not the literal meaning of “bear” plus “arms” in 1791, but the ordinary meaning of the phrase “bear arms.”  And “bear arms” – as recent big-data research of eighteenth-century records shows – is a phrase with a military and collective meaning, not a phrase that meant simply to carry weapons.

Bostock demonstrates once again that a shared commitment to textualism does not lead invariably to shared outcomes, nor to outcomes easily predicted by political ideology.




When Stand Your Ground Meets Blue Lives Matter

What happens when the person you “stand your ground” against turns out to be a police officer trying to do his job?

On August 20, 2015, John Derossett engaged in a forty-round gunfight with plainclothes deputies of the Brevard Sheriff’s Office.  They were attempting to arrest Derossett’s adult niece for prostitution following an undercover sting operation; Derossett believed them to be intruders trying to kidnap her.  One of the deputies was severely injured but survived.  The state charged Derossett with first degree felony attempted murder of a law enforcement officer; Derossett responded that Florida’s Stand Your Ground law afforded him immunity from prosecution. In a remarkable opinion issued just last month, the Florida Court of Appeals held that Derossett was entitled to claim immunity under the Stand Your Ground law.

Florida has some of the most gun-friendly statutes in the country.  Among them is its extraordinarily protective Stand Your Ground law.   As with many other states, Florida has abandoned the traditional common law obligation to retreat when confronted, and instead allows use of deadly force whenever the person reasonably feels it is necessary to prevent imminent bodily injury or forceable felony, wherever the person happens to be.   Florida has also strengthened and codified the traditional “castle doctrine” that permits lethal force to defend one’s home or others therein.  The exceptions to this statute include where the defendant knows or reasonably should have known that he was shooting at law enforcement, and where the defendant uses his dwelling to further criminal activity.

Perhaps the most novel feature of Florida’s Stand Your Ground statute is its immunity provisions.   Self-defense traditionally has been conceived as a defense to civil or criminal liability.  The defendant is charged with a crime or civil wrong, and the defendant produces evidence of self-defense that entitles him to exoneration.  In some states the defendant bears the ultimate burden of proof; in others the burden shifts back to the prosecution.  But in either case, the process is usually addressed as part of an ordinary criminal proceeding.

Florida has essentially fast-tracked the self-defense determination in its statute.   Under the terms of the statute, immunity protects a claimant from criminal charges, conviction, civil liability and even arrest for any use of force deemed covered by Stand Your Ground.  Once a defendant makes a prima facie showing of self-defense (an extremely low bar), it is up to the state to show by clear and convincing evidence that the defendant’s gunfire was not justified by Stand Your Ground.

In Derossett, the court immunized the defendant because the police had not demonstrated by clear and convincing evidence either of the two exceptions to Stand Your Ground:  that Derossett knew or should have known he was shooting at police officers, or that he was using his house to further prostitution (as opposed to simply being aware that his niece was doing so).   Understandably, the police were upset by the conclusion, with a spokesperson for the county reporting to a local news agency: “Our law enforcement officers risk their lives daily to protect our community,” [and] “This ruling adds to that risk by extending protection to those who turn a blind eye to criminal activity, even within their own home.”

Derossett and application of Stand Your Ground against law enforcement is most likely to occur in those fast-paced, split-second scenarios where police do not clearly identify themselves or are not identifiable by their dress or vehicles.   In ordinary police encounters, this may not be an issue; but a significant portion of police work today involves sting operations and undercover investigations.  No-knock warrants and similar exigent procedures, designed to prevent suspects from escaping or destroying evidence, are already hazardous for police agents.   Stand Your Ground may complicate these kinds of law enforcement actions in Florida.  To the extent Stand Your Ground also extends its immunity to defense of others, it may also complicate scenarios in which persons, not immediately identifiable as law enforcement (such as plain clothed or off-duty officers) are confronted with deadly force by civilians who mistake the law enforcement official for a criminal.  Uncertain is the role of Stand Your Ground when a defendant clearly knows the person is law enforcement, but believes that the officer is about to use imminent and excessive force on the defendant or on others, as I wrote about here.        

In general, the law structures encounters between police and civilians to err on the side of police safety and public order.  It’s illegal to resist even an unlawful arrest in most states.  Many jurisdictions, including Florida, single out violence against law enforcement officials for particular sanction.  Fourth Amendment doctrine and criminal law tends to favor law enforcement when there’s some reasonable mistake that leaves civilians dead or injured.

Florida’s Stand Your Ground law, at least in cases like Derossett, may push the needle in the opposite direction.  It may offer civilians the benefit of the doubt when they use deadly force against police officers in cases where there’s a mistake or confusion, in a way that the drafters of the law may not have intended.




Do Local Governments Have Second Amendment Rights?

The city is an increasingly common site of contestation for the right to keep and bear arms. Historically, much of gun regulation has been local, such as laws preventing the carrying of firearms into courthouses and schools or requiring that individuals obtain a license or provide a particular reason to carry a weapon.  As a result of a concerted effort by gun-rights advocates in the middle of the last century, however, many states have preempted local authority when it comes to firearms.  Some states, like Missouri, have proposed permitting (or at least decriminalizing) the carrying of weapons into local government buildings.   More than half of states now permit concealed carry in public streets regardless of training or expertise. Still other jurisdictions, such as Texas, have broadly preempted all gun regulation by local governments, effectively rendering the state the only entity authorized to pass firearm-related laws.

Of course, not all local governments want to restrict gun use.  Some seek to expand it.  A few school districts have sought to arm teachers in response to school shootings, in some cases leading to state laws banning the practice. And some cities and counties have declared themselves “Second Amendment sanctuaries,” committing themselves to resisting any law they regard as curbing gun rights.

Scholars have explored guns and local government from a number of perspectives, but at least one remains unexplored: What is the status of the city itself as a bearer of Second Amendment rights? Can the Constitution be read to confer the right to keep and bear arms on municipal governments? And if so, how would this change contemporary debates about gun regulation?

It’s unsurprising that scholars have not engaged this issue: a city claiming Second Amendment rights must overcome two seemingly insuperable hurdles.  First, a longstanding principle of blackletter law maintains that municipal governments have no constitutional rights that can be asserted against their states.   Second, even if cities could bear some constitutional rights, after District of Columbia v. Heller the Second Amendment is commonly thought to be an individual right, not one reposed in groups. This post, adapted from our forthcoming article, challenges both these propositions and, in so doing, outlines a theory of the city’s Second Amendment.

First, it is often claimed that cities have no constitutional rights against their states.  Cities that try to assert constitutional rights are often dismissed with a brief citation to the Supreme Court’s decision in Hunter v. Pittsburgh, or perhaps a reference to Dillon’s Rule, both of which treat the city as simply an administrative arm of the state – little different than the state department of motor vehicles.  The underlying notion is that municipal corporations are merely “artificial entities” that exist only by grace of state charters. Since states can create or destroy these charters at will, these corporations cannot have any independent rights, and certainly none contrary to the state upon which they rely for their very existence.

But this proposition about city powerlessness is frequently asserted without reflection as to its doctrinal accuracy or its theoretical justification.  Cities can and do assert constitutional rights against their states, in cases like Romer v. Evans and Washington v. Seattle School District No. 1, and in some procedural cases where the city is a litigant.   In fact, courts casually grant cities legal personality in ways that seem to fly in the face of Hunter or Dillon’s Rule, forming what Rich Schragger calls a “shadow doctrine” that a number of other scholars have recognized.   Further, in our case by case system of constitutional adjudication, recognition of a municipal corporation’s constitutional claim in one matter demands explanation why it shouldn’t apply in another.

Pragmatically, the notion that local governments are no more than passive administrative entities that carry out state priorities bears no resemblance to the modern American city.  If anything, the city may be the most vital of America’s various layers of government. It is small enough to engage in policy experimentation, close enough to its citizens to engage in true democratic responsiveness and participation, and occasionally powerful enough to serve as a meaningful intermediary between individuals and state or national government.

Even if one accepts, as we believe, that the doctrine of municipal personality relies on an outdated conception of the city’s legal status, that does not mean that cities automatically enjoy Second Amendment rights. On the contrary, while law presumes that individual citizens presumptively bear all enumerated constitutional rights, it is not obvious whether private institutions or state actors can assert these protections. One way to think about this issue is that some Bill of Rights protections protect not only individual liberty but also collective activity as well. The First Amendment’s Speech Clause, for example, may be understood not only to protect individuals from state restrictions on their expression, but also to promote a collective interest in a system of free expression, the institutions that make that system meaningful, and the public goods that right is meant to supply.

While the Second Amendment is primarily understood as a bulwark of individual freedom, it too possesses underappreciated collective components, in addition to individual ones. Like the Speech Clause, the right to keep and bear arms may be understood as productive of a collective good as well: public safety. This is clear from the text of the Militia Clause (which reposes the right in “the people”); Heller itself (which nowhere stated that the right to keep and bear arms is a purely personal right); and in the history of the clause (which has its roots in the public peacekeeping functions of private arms-bearing).

The city is a particularly apt institution to promote the public-safety aspects of the right to keep and bear arms. Indeed, cities have their origins in the need for collective self-defense. Throughout this nation’s history, local governments have taken the lead in providing internal security, as the predominance of city watchmen and county police and sheriff’s departments in law enforcement illustrates. Traditionally municipal governments have enjoyed considerable discretion to determine how to preserve their internal security, further illustrating that the city is institutionally well suited to promote the Second Amendment’s public-safety component.

Having overcome the two major objections to situating municipal governments as Second Amendment rights-bearers, the task remains to outline the substantive contours of the city’s right to keep and bear arms. One way this cashes out is that it highlights localities as salient actors in constitutional discourse about arms-bearing. Just as state actors are regarded as free to engage in speech-acts under the “government speech” doctrine, so should municipal entities be able to privilege their own decisions about collective security via arms-bearing. This has two implications: First, that when individuals carry firearms in the employ of the public safety interests of the city, we regard them not as exercising their individual right to keep and bear arms, but a collective exercise on behalf of the state actor. Second, local governments, as the institutions best suited to promote their own collective security, should enjoy some measure of deference to arms-bearing decisions designed to advance that security, even in the face of state or federal laws to the contrary.

So understood, the city’s Second Amendment promises to recast many contemporary debates about the constitution and gun ownership. Consider several examples. First, several Seattle Police Department officers recently sued the City of Seattle on a Second Amendment theory, arguing that restrictions on their use of force that Seattle accepted in a consent decree violated the officers’ individual rights to bear arms. The Ninth Circuit denied the officers’ claim, but accepted the proposition that police had enforceable Second Amendment rights against the cities that employed them. Interposing the government arms doctrine would obviate this argument. It would recast municipal law enforcement officers as bearing not individual rights to bear arms, but rather collective rights to bear arms on behalf of the cities whose internal security they are employed to preserve.

Second, some local governments in New York passed laws empowering teachers to carry firearms in class in an attempt to deter school shootings. The New York state government swiftly prohibited this practice statewide. The local laws in this instance are unorthodox; cities usually repose the responsibility to preserve collective security on the police, rather than teachers, principals, or other school staff. This distinction, though, makes little difference for the analysis. Should a municipality decide on a particular strategy for preserving public safety, that should merit deference, regardless of whether the outcome is regulation or deregulation of firearms. Of course, such decisions would be subject to the constitutional means/ends scrutiny to avoid irrational or arbitrary decision making.   In addition, a municipal decision to empower school personnel to threaten deadly force does not relieve them of their obligation as state actors to employ those arms in conformity with other restrictions, like the Fourth Amendment.

Finally, many American counties and cities have declared themselves “Second Amendment sanctuaries,” passing legislative resolutions suggesting that they will resist any firearm regulations they regard as unconstitutional. These resolutions have to date been largely symbolic – but imagine that a state passed a law requiring universal background checks for gun purchases, and a self-declared sanctuary city refused to obey, issuing firearms to all comers, regardless of the regulation. Here, the city would have to articulate a plausible explanation why implementing universal background checks would hamper its ability to promote public safety on behalf of its residents.   And there may be some reason to treat regulations on bearing firearms for public safety differently from those designed to regulate a right to keep firearms for defense at home.

The city plays a central role in many contemporary controversies over the scope of the recently vivified Second Amendment. Yet thanks to the city’s lack of constitutional personality and the common understanding of the right to keep and bear arms solely about individual rights, scholars have ignored whether the city itself has a constitutional interest in these debates. This blog post has contested both of these propositions and outlines an affirmative vision of the city’s Second Amendment. Asking whether municipal governments can assert the right to keep and bear arms not only adds to the growing debate about the contours of the post-Heller Second Amendment, but also contributes to scholarly debate over the legal status of the contemporary American city.

This joint post by Dave Fagundes & Darrell Miller was adapted from Dave Fagundes & Darrell A H. Miller, The City’s Second Amendment, Cornell Law Review (forthcoming 2020).

[Ed. note: This post is part of series of guest posts from scholars at the Center’s recent colloquium on Localism, Popular Constitutionalism, Preemption, and Firearms.]




Colloquium on Localism, Popular Constitutionalism, Preemption, and Firearms

At the end of April, the Center for Firearms Law was delighted to host a colloquium on the topic of Localism, Popular Constitutionalism, Preemption, and Firearms.   Veterans of state and local government law and constitutional law,  as well as new voices, all convened (via Zoom) for a wide-ranging discussion on the intersections between local regulation, preemption, immigration, pandemic response, and firearms.

The participants were Joseph Blocher (Duke), Richard Briffault (Columbia), Jake Charles (Duke), Katherine Mims Crocker (William & Mary), Dave Fagundes (Houston), Shawn Fields (Campbell), Pratheepan Gulasekaram (Santa Clara), Alli Orr Larsen (William & Mary), Darrell Miller (Duke), Rich Schragger (UVA), Ken Stahl  (Chapman), Rick Su (UNC), and Sarah Swan (FSU).

We had initially planned for the colloquium to be in person and hosted at Duke, but the coronavirus intervened, and we instead conducted the event entirely online.   Aside from the inability to grab a meal and a drink together, we were pleased with the results.   The papers were engaging, and the discussion insightful and timely.

Of particular interest was the issue of Second Amendment sanctuaries and how they correspond (or fail to correspond) to the law and politics surrounding immigration sanctuaries.   It was especially rewarding to have persons with deep interest and experience in other areas of law connect their knowledge to the developing field of firearms law.

This week we’ll be publishing blog posts by many of the scholars who participated in the colloquium.




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.




Incidental Burdens in a Pandemic

Nationwide, state and local officials have issued emergency orders closing vast sectors of the economy in order to prevent the spread of coronavirus.  Gun rights advocates have responded with lawsuits claiming, inter alia, that the Second Amendment exempts them from these orders.  Their argument, in essence, is that the right to keep and bear arms guarantees gun stores a carve out from neutral rules of general applicability. But does it?

Constitutional rights—including the right to keep and bear arms—are often burdened by regulations that exist for reasons other than those relating to the right. General zoning laws might prohibit the construction of a gun store or a firing range. Such an establishment, if it opens, might have to pay property taxes, just as those who purchase guns might be subject to sales tax.  Those consumers can recover in tort if their firearms are defective. All of these legal rules impact the ability of people to keep and bear arms, but exist for reasons having nothing to do with guns in particular, and the Second Amendment does not on its face guarantee any kind of exemption from them.

The same is true for many other constitutional rights—it is the problem of “incidental burdens,” explored by Mike Dorf in this fantastic article. The closure of establishments in the face of COVID-19 makes Dorf’s analysis all the more prescient and important. If closure orders are truly being used as a pretext to regulate constitutionally protected activity (as gun sellers and abortion providers have argued) then they are not “incidental” and the normal constitutional rules apply. But, on their face, such orders are presumptively temporary, neutral, and designed to prevent contagion, not to burden rights.  They apply broadly to many kinds of activity, not just gun stores, which suggests that they aren’t targeting gun shops per se. To the extent that the orders apply to parks, libraries, theaters, bookstores, churches, mosques, and synagogues, all kinds of constitutional activity is affected:  freedom of assembly, freedom of speech, freedom of religion, and freedom to marry.  Gun sellers have, by and large, successfully argued for carve-outs to these generally applicable rules, and whether they should be deemed “essential” as a policy matter is a matter of debate. What interests us is the role the Second Amendment should play in the analysis.

Gun shop exclusion litigation during the pandemic is a real-world instantiation of an academic puzzle we worked through a few years ago.  In What is Gun Control?: Direct Burdens, Incidental Burdens, and the Boundaries of the Second Amendment we discussed the implications of the Second Amendment when the burden on the right is incidental – the result of general operation of neutral rules.   In that article, we explored how ordinary rules like negligence, trespass, and nuisance may operate in light of the Second Amendment.  For example, does the mere fact that a gun is negligently stored – as opposed to a bottle of medicine or a box of matches – have any bearing the legal analysis?

The question in our mind with these gun shop suits is much the same:  does it matter, and if so why does it matter, that the shop seeking to remain open supplies guns instead of books, or prophylactics, or spiritual guidance? In our article, we suggest some considerations based on (1) text, history, and tradition; (2) the burden on the individual rights holder; (3) the structural burden of allowing claims to proceed; and (4) the character and purpose of the burden imposed. Here is the abstract:

Particularly in places with few recognizable gun control laws, “gun neutral” civil and criminal rules are an important but often-unnoticed basis for the legal regulation of guns. The burdens that these rules impose on the keeping and bearing of arms are at times significant, but they are also incidental, which raises hard questions about the boundaries between constitutional law, regulation, and legally enforceable private ordering. Does the Second Amendment apply to civil suits for trespass, negligence, and nuisance? Does the Amendment cover gun-neutral laws of general applicability like assault and disturbing the peace? In the course of addressing these practical questions and the broader conceptual challenges that they represent, this Article fashions analytic tools that may be useful to a wide range of constitutional problems.

Our examples were modest compared to the current crisis, of course, but the basic framework—which allows for some claims based on incidental burdens to proceed—seems more relevant now than when we wrote it. (As does Mike’s characteristically thoughtful response!)

 

Joseph Blocher, Lanty L. Smith Professor Law, Duke University School of Law

Darrell A. H. Miller, Melvin G. Shimm Professor of Law, Duke University School of Law




Gunpowder, Plague, and Tradition

In 1720, writer and self-designated medical expert Joseph Browne published his A Practical Treatise of the Plague, in which he extolled the benefits of the “firing of Guns, especially Cannon” to “purify” an atmosphere laden with pestilence.  In recommending this approach, Browne had significant company.  It appears that igniting gunpowder had been the folk medicine of soldiers, sailors, and city-dwellers for decades, if not centuries.  Stephen Bradwell, a seventeenth century English physician, in addition to dispensing sound public health advice like keeping the streets clean, and avoiding throngs, recommended launching fireworks and firing guns in the public streets so that the gunpowder would “dry” the air.  Daniel Defoe, in his Journal of the Plague Year (1722) also writes of the common practice of sanitizing dwellings by burning gunpowder. (Defoe includes the story of one poor man who used so much that he destroyed his house.)

For the Founding Fathers (for whom the germ theory of disease was by no means universally accepted), the idea of shooting cannon and firing guns to cleanse the air of “miasma” may have seemed reasonable – no matter how risible it is today.  The technique’s widespread acceptance as good practice in the 1700s may not be a problem for medicine, but it does present a problem for law.

Originalism, in particular its focus on text, history, and tradition to construe constitutional rights, is the theory that constitutional rights are understood to have the content and contours of the era in which the relevant constitutional provision is enacted.   For the Second Amendment, lower courts routinely look to practices, customs, and traditions that existed in 1791, the time the States ratified the Amendment.   Some judges, including Justice Kavanaugh, say that text, history, and tradition is the only legitimate form of analysis.   These jurists suggest that any regulation or custom must be evaluated by reference to modern analogues to past practices to see if they square with the Constitution.

For many questions, this may not be an insuperable problem.  There are plenty of traditions that have justifications just as applicable today as they were in 1791.  One may need to take a gun to a smith or to a range today for much the same reasons as one did over a century ago; and the wisdom of prohibiting guns “into any circus, show or public exhibition of any kind” applies just as well, for exactly the same reasons of public safety and order, to prohibitions on guns at public entertainments today.

But what of those traditions, practices, and customs whose principal justifications has not kept up with time – or worse, now seem utterly ridiculous?   Can it be that one looks at just the superficial phenomenon of any given tradition or custom, without any inquiry into its underlying purpose?  Elsewhere I have written that if the Court decides to construct a unique text, history, and tradition approach to Second Amendment doctrine, it will have to contend with superannuated customs that have fallen into desuetude.

My question in this short post is different: what does a jurisprudence of text, history, and tradition do with practices, customs, or laws, that may have contemporary justification, but whose antecedents rely on what we now understand to be patently nonsensical or offensive rationales?




Equilibrium Adjustment and Second Amendment Doctrine

Almost a decade ago, Professor Orin Kerr wrote a brilliant article called “An Equilibrium-Adjustment Theory of the Fourth Amendment.”  In it, he posited a theory of the Fourth Amendment that describes judges applying Fourth Amendment doctrine so as to maintain some equilibrium between police power and personal liberty.   As he writes:

When changing technology or social practice makes evidence substantially harder for the government to obtain, the Supreme Court generally adopts lower Fourth Amendment protections for these new circumstances to help restore the status quo ante level of government power. On the other hand, when changing technology or social practice makes evidence substantially easier for the government to obtain, the Supreme Court often embraces higher protections to help restore the prior level of privacy protection.

Kerr uses the thought experiment of a “Year Zero,” without technology (no fences, no cars, no cell phones, no wiretaps) in which the power of the state and the protection of privacy, specified by certain rules (warrants for homes; probable cause for a detention) are in equilibrium.   (Kerr does not insist this equilibrium is ideal – it could empower police too much; it could protect privacy too much – the idea is simply that there’s an equilibrium.)   As new technologies become available (criminals obtain cars; police obtain drug-sniffing dogs) the courts in a case by case fashion attempt to maintain the balance set at Year Zero.

It’s always struck me that Kerr’s analysis holds some promise for analyzing Second Amendment problems.   Like the Fourth Amendment, the Second Amendment could operate from a Year Zero equilibrium (or multiple equilibria) between government power to possess and use implements of violence and private power to do the same.   And, like the Fourth Amendment, Second Amendment doctrine must contend with both technological change (more deadly and concealable arms; micro-stamping) and social change (more social acceptance of concealed carry; more sensitive places) – changes that potentially upset whatever the Year Zero balance of gun rights and regulation may have been.

Of course, in some ways Second Amendment equilibria are even more complicated.   Kerr focused on just one dynamic:  police power and individual privacy.   But with the Second Amendment there’s potentially numerous Year Zero equilibria:  criminals and individuals; criminals and law enforcement; law enforcement and individuals; criminals and the military; military and individuals.   Plus, there’s a set of considerations that may fundamentally shift the equilibria (Year Zero may not contemplate a standing army, for instance, or nuclear weapons).   And finally, nothing in equilibrium adjustment theory requires the Year Zero equilibria to be socially optimal or morally acceptable.  Indeed, arguing about the Year Zero equilibria – whether it’s tied to a set of institutional arrangements in 1791 – and whether it’s shifted – is the whole stuff of modern Second Amendment litigation.

That said, equilibrium adjustment theory does promise some purchase on the nature of the problem in Second Amendment adjudication and provides a vocabulary for the objective the doctrine attempts to achieve.




More on Text, History, and Tradition and NYSRPA

Much of the oral argument in NYSRPA v. New York City dealt with mootness: whether there was even a case or controversy before the court, as required by Article III of the United States Constitution.   But someday, whether in NYSRPA or some other case, the Court will have to address the question of which method to use to analyze the Second Amendment.  The two main contenders are the two-part framework, adopted by most of the lower courts; and text, history, and tradition, endorsed by a minority of judges, including now-Justice Brett Kavanaugh.

Often these two approaches are treated as opposites, but they are not.   The first step of the two-part framework uses text, history, and tradition to assess whether some activity actually raises a Second Amendment concern. Carrying “dangerous and unusual weapons” does not, according to District of Columbia v. Heller; carrying firearms in public might, according to most lower-court decisions.  The second step of the two part framework asks whether there are valid government interests advanced by credible evidence or legitimate predictions of efficacy to uphold the regulation and investigates the effect of those regulations on the function of the right.   The two-step framework does not reject text, history, and tradition; it incorporates it at step one (and perhaps at step two as well).

The other option is something like a text, history, and tradition-only approach, where there’s no opportunity to define the government interests at stake, no chance to argue about the actual or predicted efficacy of the regulation, or no opportunity to discuss whether the right is preserved in its fundamental elements with those regulations.   At its most restrictive, a text, history, and tradition-only approach would lead to the conclusion that only those regulations that existed in 1791 are valid, and that any regulation that has arisen since the Founding Era is unconstitutional.

But almost no judge, including Justice Kavanaugh, endorses that stringent a use of history.  Instead the typical approach is to argue from analogy to text, history, and tradition to evaluate the constitutionality of modern regulations.  That effort, though, brings with it some problems.   As my colleague Joseph Blocher has discussed, it can be incredibly judge-empowering; it disguises substantive judgments with a veneer of “relevant similarity”; it requires difficult calibration of the level of generality.

I want to focus on one additional issue.  What happens when (as Kathleen Sullivan once said) the analogies run out?  Take the prohibition on loaded private firearms in the cabin of a commercial airliner.   At its strictest, a text, history, and tradition approach would say because there’s no regulation on firearms in jet airliners in 1791, no regulation on firearms in jet airliners can be constitutional today.   But that is a bizarre way of doing constitutional law.  We don’t ask that kind of question for whether a certain type of modern weapon (like a stun-gun) is an “Arm” under the Second Amendment.   Why must we reason this way to decide whether a regulation is constitutional?

Once we’re dealing with jet planes, the analogies cease to be helpful and become abstruse and alienating.  The law presently prohibits loaded firearms in commercial jets.   What kind of vehicle in 1791 is most like a jet plane?  A horse?  A horse-drawn carriage?  A sailboat?   Justice Samuel Alito in his Fourth Amendment jurisprudence appears skeptical that this is a fruitful line of inquiry.  What’s more, this kind of exercise makes constitutional reasoning seem like a parlor game, played by an elite legal cognoscenti, completely divorced from everyday experience.

This doesn’t mean that text, history, and tradition can’t answer some questions.   A home in 1791 has many of the same features as a home today.  And, to the extent the Framing generation made judgments in 1791 about firearms in homes; homes should be just as important to our construction of the amendment today.

But what the second step of the framework does is provide judges some guidance when the analogies become too thin – or too fantastic – to do any real work.   And, more importantly, the framework does so in a way that is intelligible to the people who must abide by those judge’s decisions.




The Anti-Carolene Court and Gun Politics

Nicholas Stephanopoulos has recently posted an article describing how the Roberts Court is fast becoming the “Anti-Carolene Court.”   The 1938 case United States v. Carolene Products Co. is famous, of course, for its footnote four, where Justice Stone articulates a theory of judicial review keyed to the need for judicial officers to intervene when there’s a failure of the political process.  The justices must act when groups – typically “discrete and insular” minorities  –  are  otherwise unable to assemble democratic coalitions to advance their political goals.  They must also act where there’s a risk of partisan hijacking of the political process itself to effect partisan entrenchment.  According to Stephanopoulos, the Roberts Court in recent years has “[f]lipped Carolene Products on its head” intervening in political disputes when Carolene Products would counsel deference, deferring when it would demand action, and all in a way that, consciously or unconsciously, aligns with the partisan priorities of conservative elites.

In Rucho v. Common Cause, for example, Chief Justice Roberts described partisan gerrymandering as a threat to democracy, but stated that there were no judicial tools to manage the issue – the solution must come from politics.  But, as Stephanopoulos notes, the Chief also appears skeptical of the very political solutions that might mitigate that threat, such as independent redistricting commissions.  In other words, the political response to the classic political process failure is viewed with constitutional scorn.   The result is that those trying to solve a complex matter of public policy are stymied in every direction, leaving an unsustainable and toxic status-quo.

Stephanopoulos, as a voting rights scholar, is most concerned with how judicial action (or inaction) aids partisan entrenchment rather than prevents it.  But his observations are also applicable to New York State Rifle & Pistol Association, Inc.  v. New York City.   Everyone seems to agree that gun violence is a serious problem – even Justice Scalia recognized as much in his majority opinion in District of Columbia v. Heller.  But he went on to note that the Second Amendment takes “certain policy choices off the table.”   Political process theory, though, would say that how much the Second Amendment knocks off the table is a function of both the risks presented by gun violence and the risks of a policy over-reaction.

Gun rights advocates have gone to extraordinary lengths since Heller to depict themselves as targets of over-reaction, victims of a political process failure, and minorities in need of vigorous judicial protection.   Their self-description is a powerful organizational and rhetorical tool, but is difficult to square with political reality.   There has been an utter lack of political movement on even the most modest (and most popular) gun violence prevention legislation, like universal background checks.  Even back-to-back mass shootings in Texas and Ohio, and the most recent shooting in a California high school, have seemingly no effect on the political deadlock.  It seems extremely difficult to see how the political process is failing to prevent a policy over-reaction.

On the other hand, the risks associated with gun violence remain – if anything – under-addressed by the political branches, as the remarkable amicus brief by the students of March for Our Lives articulates in graphic detail.  As they note, millions of young people live in an America of lockdowns, mass murder, and fear.  A broad and ill-considered ruling by the Supreme Court in NYSRPA would have the effect of cutting off their ability to fashion political solutions to a problem they experience most keenly.  The political deck may be stacked against them (given asymmetric intensity, partisan gerrymandering, and political minority protection in both state legislatures and Congress); but that is not the sole issue, so long as they remain free to translate their activism into politics.

As Judge Wilkinson cautioned recently:  “To say in the wake of so many mass shootings in so many localities across this country that the people themselves are now to be rendered newly powerless, that all they can do is stand by and watch as federal courts design their destiny – this would deliver a body blow to democracy as we have known it since the very founding of this nation.”   It’s one thing to lose a policy debate on a matter as complex and personal as gun violence; it’s another to be told you can’t have the debate at all.