Convictions: Slate's blog on legal issues

What the Heller? Is Only the Supreme Court's Liberty Enhanced?

Jack Balkin and Sandy Levinson are right to probe with hypothetical the dimensions of the newly-minted, or perhaps ancient, right of self-defense, or right to own handguns, in one's home, or maybe outside it, or maybe also to own other weaponry, or maybe not, so firmly established in District of Columbia v. Heller (2008) per those clarifying originalist sources understood by Justice Scalia 5-4.

The Candidates Debate -- well, maybe not

My question relates to this indeterminacy and the politics of discussing this case, and the ultimate effect on political and human liberty. Specifically, is the manifold uncertainty raised by the opinion (and its consequent unsettling of state and local law and disregard of federalism that we conservative types used to care about) going to be challenged (condemned) by John McCain as an invitation to legislate from the bench?  Critiqued by Barack Obama?  Or, as is more likely not to be talked about by either since McCain's complaints about judicial activism are as meaninglessly one-sided as most everyone else's, and Obama is just happy to not have the NRA energized in his direction - and who could blame him?

No Originalism Left Behind -- well, maybe not

As an under-interpreted provision in the Constitution, the Second Amendment provided an opportunity to test the integrity and utility of the original understanding method of interpretation.  It failed.   The language to be construed: "a well regulated militia being necessary to the security of a Free State, the right of the people to keep and bear arms shall not be infringed."  Prior to the Heller, many thought that the second half of the text was to be construed in reference to its preamble.  Justice Scalia concludes instead that the first 13 words of the amendment are "a purpose," but not the purpose.   

It's only Natural (Law) to Disagree

Dean John Eastman (a first-rate originalist scholar and the co-editor of our casebook) and I have been batting about the originalist legitimacy of this move by Justice Scalia.  I'm skeptical given how the preoccupation with state and private militia by the founders as a counterpoint to government tyranny had fit both the history and the text.  It also fit structure as an answer to the threat of abuse of Congress' Article I militia organizing authority.  Dean Eastman believes Justice Scalia is informing the text with an appreciation of a natural law right of self-defense perhaps a la the thoughts of Professor Akhil Amar here on Slate some months back.

As for "the right of the people" language, both majority and dissent agreed that this suggests an individually enforceable right, but that tells us nothing about its scope -- specifically whether that scope must have a militia-nexus. Of course, sometimes text, history, context and structure are contradicted by longstanding precedent which, by reason of reliance, merits adherence. But here the interpretation in U.S. v. Miller in 1939 arguably saw the Second Amendment as militia-related, and it was a precedent followed by virtually every lower federal court since it had been decided.  Justice Scalia argues that Miller holds only that a short-barreled shotgun was not "ordinary military equipment" because it was not the type men bearing arms would be expected to bring when called to militia service, but so what?  How does that free the "right" from the militia nexus?   

The dissent saw the opinion as legislating from the bench.  Wrote Justice Stevens for the four dissenters quoting Miller, "the signification attributed to the term Militia appears from the debates in the convention, the history and legislation of colonies and states, and the writings of approved commentators.'"  In light of that, Justice Stevens concluded: "Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well regulated militia.  The court's announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations."

But can it be plausibly argued, as Dean Eastman and perhaps Akhil Amar suggest, that there is another view of originalism in play as well?  One which heretofore has been championed largely by Justice Thomas but to which Justice Scalia's opinion in Heller now appears to give credence.  That view holds, with substantial evidentiary basis in the founding-era debates, that the Bill of Rights merely recognizes (rather than creates) pre-existing natural rights.  I concede natural law originalism has always been my preferred view, but given Justice Scalia's past denunciations of it, is it plausible to see him now as among the converted?  He does make reference to 19^th century case law approving of the perspective.  In this regard, the Court makes several references to this "natural law" view of the Second Amendment right, concluding that the Second Amendment necessarily codifies its more expansive right to self-defense, against both private thugs and government tyrants. 

But assuming Justice Scalia is in fact now willing to judicially enforce the text of the Constitution only as informed by the natural law, how exactly does he know that the natural law includes a right to possess a handgun for self-defense?   As he himself might have been given to point out in other contexts, when the right was linked to "the militia," he could define it in relation to an historical purpose originally understood. If natural law is the new lodestar, then Justice Scalia needs a defensible conception of human nature.  And far from the right being new support for abortion as Jack hypothesizes, would not any serious conception of human nature contest, not affirm, that practice?  But staying with just born persons, isn't it possible to see more widespread handgun possession as contrary to any natural law basis for the "right" insofar as gun usage has its own inherent dangers or just simply in light of the number of handgun deaths each year in urban areas, including DC?

Go to Hell(er), Federalism!

Does the new gun right apply against the states?  Within a week of the ruling in Heller, five lawsuits were filed seeking to apply the newly designed Second Amendment to nullify gun control laws adopted by local governments in California and Illinois. Each of the cases makes the argument that the Second Amendment is applicable to the state and local governments through the Fourteenth Amendment - an issue the Supreme Court has not considered since 1894, when it said the Amendment applied only to the federal government.   In note 23 in Heller, the Court declined to reach the incorporation issue. 

The Chicago case, NRA, et al., v. City of Chicago, et al. challenges a restriction very much like the DC ban that had been invalidated - namely, a city code provision that requires registration of firearms, but bars registering handguns.  Chicago is within the Seventh Circuit which last found that the Second Amendment applied only to the federal government in 1982 relying upon the Presser v. Illinois (1894). The Circuit Court specifically declined to find that Presser had been superseded by the Fourteenth Amendment and its incorporation of most of the Bill of Rights.

Raising the Standard (of Review)

Beyond applicability to the states or not, the standard of review is uncertain for laws that differ from the District of Columbia handgun ban that was nullified. Justice Scalia seems to eliminate rational basis as an insufficient standard, but not much else.

Depending on the standard of review to be named later, it is supposed that we will learn the answers to the questions that bedevil us now, including why carrying a concealed weapon beyond the home and hearth is not protected and also why licensing laws do seem - so long as they are not disguised as prohibitions - not to offend the "right."  Similarly, we will know whether switchblades or mace or tazers are beyond "weapons typically possessed by law-abiding citizens for lawful purposes."

Come, Learn from the Master -- or Go Directly to Jail   

Finally, the ever dutiful citizenry will be instructed by its judicial masters as to how far, if at all, the right can be taken outside one's home?  The front stoop?  One's car parked at the curb?  The RV parked out back?  In the meantime, I suspect it won't be long before a law-abiding Dick Heller-type fella is charged by a local prosecutor for a crime because he used a gun or other weapon beyond the home, in claimed self-defense, only to find upon posting bond that he did not successfully discern the constitutionally acceptable geographic location.

My friend, Bob Levy at CATO brought this case to enhance human liberty.  As I see it, only judicial liberty is being advanced.  Indeed, to borrow some florid prose from the one-time author of the opinion itself:  "The Imperial Judiciary Lives!"  Don't expect it to be talked about in those terms by either of the candidates, however, who in one way or the other will have been silenced, well, at the point of a gun.

Guns and Slate

C'mon, Orin, you don't give us enough credit with your non-Volokh post. There are plenty of truck-ownin', tobacco-usin', gun-shootin' folks here at Slate. Admittedly, we're a bit of a discrete and insular minority within the Slate family, but I don't think your Heller discussions are unwelcome here.

I'm going through the opinion now, and one thing that leaped out at me was the limiting language that Justice Antonin Scalia chose to use in his opinion. He carves out two very important limitations on the Second Amendment right—so big that they encompass nearly all gun control in existence today, save those most extreme bans like that in DC:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. ... For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. ... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing 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.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” [cites omitted]

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

So, if I understand this right, Scalia's got no beef with "felon in possession" statutes like those at the heart of the Justice Department's Project Safe Neighborhoods strategy. And he's got no beef with states banning assault rifles, machine guns, rocket-propelled grenades, and other instruments of violence that are firearms but may be just a tad bit dangerous for you or me to keep and bear. And I think Scalia's also cool with background checks, registration, and waiting periods  If I'm adding up the scorecard right, that means most federal, state, and local gun control in America survives Heller.

What do you think?

Originalism Wounded! Justice Scalia Wanted For Questioning

Yesterday, in Giles v. California, Justice Scalia, true to the originalist method, kept to the text of the Constitution and enforced the Confrontation Clause for the benefit of a criminal defendant complaining that his conviction was wrongful because he did not have the ability to cross-examine the out of court testimony of his girl-friend about the defendant's pattern of violent abuse by reason of the fact that, well, he killed her.

Powerful concerns about domestic violence argued to let the testimony into court in Giles, but the Justice held fast even as he was sympathetic to the need to address domestic abuse.  The words of the Constitution matter, he said in Giles, and "It is not the role of courts to extrapolate from the words of the Sixth Amendment to the values behind it, and then to enforce its guarantees only to the extent they serve (in the courts' views) those underlying values. The Sixth Amendment seeks fairness indeed -- but seeks it through very specific means (one of which is confrontation) that were the trial rights of Englishmen."

Giles is hard to explain to the average citizen, but it's principled.

Today, Justice Scalia takes the Second Amendment which so unmistakeably by text and context -- not to mention legions of lower court precedent -- protects the right of the people in the States to maintain a well-regulated militia, as against the threat of tyranny represented by a standing army and Congress' Article I power over militias, and by various linguistic tortures, switches round the phraseology until the Amendment advances the contemporary interest of those citizens who favor possessing arms for self-defense within the home.  As a matter of human liberty, the right found by Justice Scalia may well advance the values lying behind the words of the Constitution in 2008, they just aren't the Constitution as it was originally understood.

More than once, I have enjoyed the lectures of the erudite and witty Justice Scalia on the importance and legitimacy of original understanding and fidelity thereto. I just hope Justice Stevens is up to carrying on the lecture tour.

Judge Bait

David, you ask whether Obama or Clinton will reply to McCain's attack on those beloved bugaboos, activist judges, and, if so, what they should say. I agree, Doug, that throwing the "activist" insult back at Alito and Roberts, as Howard Dean did, is lame. Based on the Obama and Clinton campaigns' responses to my own efforts to report on the candidates' views on appointing judges, and Charlie Savage's, I'd say that each of them if nominated will come up with a decent response. Many of the moving parts are there: concern about executive overreaching, Guantanamo, police power run amok, employee rights, women's rights, the promise of equal protection, a general sense that courts should at times be a refuge for the disadvantaged. What I fear is that the Democratic candidate won't figure out how to make the composition of the courts a rallying cry in the way that McCain is already doing. Republicans are just mostly better at this. Their voters get what's at stake. I'm not sure what it would take for Obama or Clinton to get the same kind of purchase. Thoughts?

In the Philadelphia debate last month, I liked the substance of Obama's answer about the D.C. guns case: He likened the relationship between gun regulation and the right to bear arms in the Second Amendment to zoning ordinances and the protection against takings in the Fifth Amendment—in other words, you can have a constitutional right, and the state can also set reasonable limits on that right. I was annoyed, though, that both he and Clinton made a point of not taking a position on the merits of the case. They said they hadn't read the briefs. Please. Whoever is nominated had better figure out a good response to the court's ruling on the D.C. gun ban when it comes down in June. Because whatever the ruling, it has the potential to make trouble for the Democratic candidate and to make hay for McCain.

A Federal Case?

I think Judge Gertner's right -- there are some things which flatly shouldn't be a federal case. 

I'm reminded here of the so-called "felon in possession" cases I saw while working as an extern in the U.S. Attorney's Office in Los Angeles.  Under federal criminal law, it's a crime for a previously-convicted felon to possess a gun which has moved in interstate commerce (i.e. any gun). The cases I watched came as part of a massive Justice Department initiative called "Project Safe Neighborhoods" which aimed to reduce gun-related crime in America through various means, including the federal prosecution of persons arrested with a gun who had a prior felony conviction.  Many were initially arrested by local law enforcement; some were even tried first in state corut.  However, they eventually made it into federal court because the feds wanted to take advantage of stiffer federal sentencing laws, more prosecutorial resources at the federal level, and the comparitive advantage of the federal court jury pool versus that in Los Angeles County. 

The strategy has worked.  PSN has locked up a lot of gun-carrying felons for a very long time.  In general, I applaud that outcome, because I want streets that are free of gun violence too.  But, I agree with Judge Gertner that we should be concerned about the larger implications here, especially the stark differences between the federal and state criminal systems which create the incentive to make a federal case out of everything.

Home Rule in the Breach

David, your point about home rule is well taken, but even in cities with broad home rule, local authority is often quite limited.

Two examples from the city that knows how (but still can’t, as it happens).

California cities have very broad home-rule powers—among the most generous in the nation. But the courts often interpret ambiguous state laws as implicitly preempting local ordinances. San Francisco voters passed a handgun ban by initiative in 2005. Unlike Washington, D.C., which is at least getting the chance to test its ban against the Second Amendment, San Francisco just has its ban invalidated in state court as preempted by a state firearms regulation. The state laws the court relied on are actually silent as to local regulation—they’re laws that establish statewide regulation of firearms. The courts found that these laws occupied the field and implicitly prohibited the local regulation.

Another example of aggressive preemption hobbling local government: San Francisco’s attempt to provide for universal health care for local residents has run into federal preemption problems in court. The city wants to extend its existing coverage provided through SF General Hospital and a network of local clinics to all residents who don’t already have coverage. But it also wants to be sure employers don’t just drop health insurance and dump their employees on the city in response. So it’s added a mandate that most employers either offer coverage or pay a fee to contribute to the city health-care plan. This is not a regulation of employee benefits—the city isn’t making anyone provide health-care benefits. It’s just making those who don’t offer coverage to pay the fee (or better put, it’s making every business pay a fee for local health care and exempting those business that provide coverage for their employees) in order to ward off the free-rider problem. But this initiative is being challenged as preempted by ERISA, which regulates employee benefits and preempts almost any state of local law in the field. Is San Francisco’s ordinance even within the field of employee benefits, or is it just a fee levied on local businesses (which the city is otherwise entitled to levy) coupled with a city-provided service? A broad interpretation of field preemption will kill the city’s health-care initiative.

Now you might think the city has no business trying to mandate universal health care—it’s not really a local issue, right? But consider this: The city already operates a large health-care system because, as a consolidated city and county, it’s responsible for public health care for the indigent. The city discovered that it spent a fortune treating poor people in the ER of SF General for conditions that really should be treated cheaply in routine doctor's-office visits. So it set up a network of free neighborhood clinics to provide preventative and routine care in order to keep those people out of the ER. At this point, the city already has a health-care network in place. But what about people who have jobs and aren’t indigent but who still don’t have health care? When they get really sick, they wind up at SF General, too. So the city wants to cover them in the clinics. This led to the push for universal health care and to the contested employer fees.

I’m not at all certain this is good policy. It’s possible that, as the small-business owners and restaurant owners argue, the mandate will put people out of business and make everyone worse off. Restaurants have gotten together and decided to tack a fee onto every bill to cover the costs of the new health coverage. They want the consumer to know why they’re paying extra for their five-course tasting menu and wine flight. Maybe the extra costs will drive away consumers and put the marginal restaurant out of business. Maybe it will even destroy the foodie culture here and consign us all to have to eat at Red Lobster and Outback. But isn’t this just the kind of local effect we should expect a city to be sensitive to and adjust to? And mightn’t it be a good idea to let a local government experiment with universal health care to give Hillary Clinton and Barack Obama some actual information to work with when they argue about it?

These aren’t home-rule issues, but they are examples of how we hobble our cities from doing what cities ought to do—experiment with new policy ideas that might not occur to legislators or bureaucrats at the state or national level—or might not get past the special interests there.

Natural Law or the Legislature, but not the Second Amendment

Douglas W. Kmiec

Professor Posner is right that -- by originalist lights -- the argument for gun rights belongs in the legislature, not the Court.  Nothing said in the Heller oral argument persuasively demonstrated that the Second Amendment as originally understood protects an individual right of self-defense.  The Court may decide to the contrary, but it will be doing something other than originalism, as Justice Scalia has practiced it.  That said, a right of self-defense, especially in one's home, existed at common law as confirmed by the 1744 case of Mallock v. Eastly (87 Eng. Rep. 1370, 1374, 7 Mod. Rep. 482 (C.P. 1744) [viewing the issue as “settled and determined” that “a man may keep a gun for the defence of his house and family . . .”]; and the common law being merely the natural law applied, as the late Edward Corwin elegantly pointed out, there is a natural right of self-preservation.  Professor Posner is mistaken to understand natural law as also supporting a right to disarm to secure public safety.  Whether or not disarming the general public is a good idea is at most a derivative policy choice of the right of self-preservation, not the right itself.  The Second Amendment was designed "to assure the continuation and render possible the effectiveness of” the Militia."  In 1939, Miller treated this as the purpose guiding its construction. (Miller, 307 U.S. at 178.).  Why Justice Kennedy thinks this “deficient” is unexplained by anything other than the fear of announcing to a portion of the general public that the NRA mailings they have received over the years have been overstated  unless originalism includes the natural law of the Declaration of Independence which is the same natural law of the Ninth and Fourteenth Amendments so well explicated by my Pepperdine colleague Akhil Reed Amar.

A construction of the Second Amendment which assures the existence of militias by guaranteeing the private right to keep and bear arms is entirely consistent with Miller and the language and history of the Second Amendment, but for it to have any application in Heller,  it would require someone in a state militia to assert it, and the existence of a militia that, as I have said in a previous post, is BYOG.   Mr. Heller is neither in a self-arming militia nor in a state, and the Court has no business deciding this case without seriously accepting the premises of natural law originalism which as far as anyone can tell only resonates in the silence of Justice Thomas’ mind, and perhaps, not even there.

Maybe if the Court would write out its thinking first, before voting on it, it would grasp that it is error to make the Second Amendment into something it is not.

An Answer for Marty

Marty, I wasn't making an argument about constitutional interpretation but about constitutional theory.  In other words, not "what is the right outcome of the Heller case?", but "would we want to put gun rights in the Constitution if we were to start from scratch?"  The second question is not altogether irrelevant to the first; at least, some people seem to think that the answer to this question might help answer the first question.  That's why these arguments about bears and saber tooth tigers are being bruited about.  But I'm not at all interested in the first question.

From the perspective of the second question, let's take this argument made by Kennedy: "the right of people living in the wilderness to protect themselves" -- the right of "the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that."

The constitutional theory question is not whether it would be right or wrong to deprive the remote settler of the means to defend himself, but whether there is any reason to think that the government would take away his guns without a good reason-or as you put it, to think that the type of government overreaching that we properly worry about would extend to regulation of gun-toting settlers who live in the wilderness.  I certainly can't think of any.  Remote settlers are not the sort of people who are usually discriminated against; nor are they the sort of people who threaten a government's hold on power-quite the contrary.  Do we think that Congress or the Alaskan state legislature has any interest in sending agents to the wilds of Alaska in order to confiscate the guns of remote settlers?  Is the idea that the government has been captured by the grizzly bear lobby, or that settlers are treated as second-class citizens?  Maybe the settlers have a longstanding complaint that the U.S. government discriminated against them by failing to slaughter the Indians fast enough?  Does it count that the U.S. government and the thinly populated states have been subsidizing settlers for centuries-by offering free land, protection from out-of-state creditors, and tax benefits?  It's hard to imagine a more cosseted group than our hardy band of settlers.

I can't top Dahlia's skill at ridiculing bad arguments, and I don't think I need to persuade you,  either.  If this is actually what the founders believed, so much the worse for them.

As for your last point, I was making a point about the "natural right" argument discussed in an earlier post by Doug  Kmiec, not to constitutional rights (which you run together, but they are different, of course).  "Natural right" is just a fancy way of saying that there is a moral reason to (in this case) let people keep their guns, namely, so they can protect themselves.  As I said, there is also a moral reason to take away guns: to protect the rest of us.  So natural rights thinking doesn't provide the basis of a constitutional right to own guns.  It is indeterminate; another reason to leave the issue to politics.

Why Gun Rights?

The effect of declaring some activity as being protected by a constitutional right is to remove it from democratic politics.  If the activity is expressing dissatisfaction with the government, then the people, acting through their government, cannot suppress such expression.  If the activity is owning a gun, then the people cannot suppress gun ownership.  When the people, acting through their government, try to regulate the activity in question, the court says "no way!"

It is easy to understand why certain political freedoms should be put beyond the arena of politics and be protected by courts.  Without such rules, the party in power can entrench itself and undermine political competition.  It is hard to understand the analogous arguments for constitutionalizing gun rights.

Some argue that if people do not own guns, then democracy is put in danger, since people can no longer take up arms if the government tries to establish a tyranny or refuses to protect them.  Maybe this was a legitimate concern at the end of the eighteenth century (or even the nineteenth century, as Akhil Amar suggests), but as a theory for restricting democratic politics today it is farfetched.  Gun owners are politically powerful; gun control laws are few and limited; gun rights are endorsed by both parties; with hundreds of millions of handguns in circulation, no serious gun control law has a chance of success; and, even if everyone were disarmed, the government would not impose a dictatorship.  It already has more than ample firepower if that is what it really wanted to do.

Others argue that governments fail to protect people from crime, so they shouldn't be permitted to deprive people of the means to protect themselves, as this would violate a right to self-defense supposedly found in natural law.  But your natural right to protect yourself with a gun comes into conflict with my natural right to protect myself by disarming criminals; this conflict can only sensibly be resolved through political compromise.  The government's crime policies are political choices; if arguments against gun control are plausible, they have a fair chance in the political arena--and indeed have won the day virtually everywhere.

Finally, a number of people argue that gun rights are "customary" or "lived rights."  If so, so much worse is the case for constitutionalizing them.  If gun ownership is such a profound part of our culture, any government that tried to restrict it without very good reasons would pay a high price at the polls.

There are plenty of reasonable policy arguments on both sides of the issue, but these arguments should be directed to legislatures, not courts.  There is no plausible argument grounded in reasonable constitutional theory for taking gun ownership out of the arena of democratic politics.

Heller's opportunity to put Law over Politics

 Stopping the Justices from voting before they know the answer –

Douglas W. Kmiec

Heller has already been identified as a test of the fidelity to precedent and restraint of the Roberts Court.  That following oral argument, it seems possible if not likely that the Justices will disregard or minimize the significance of the militia clause of the Second Amendment and decide that there is a right of self defense that nowhere exists in the present text of the Constitution presents a unique challenge to that reputation. Putting aside whether that is or is not a defensible constitutional outcome, it is institutionally important for the outcome to be arrived at by means other than mere assertion.

When the Justices assemble around the table in the Chief’s outer office to decide D.C. v. Heller, they will follow the usual practice of voting on the outcome first and only then researching to justify and explain the outcome.  With due respect to the Court’s tradition, that methodology is backwards. It is also subversive of public confidence in the Court.  In a difficult case, like Heller, where the historical materials, linguistic analysis, and constitutional considerations are plentiful and largely being examined conscientiously for the first time, it is all the more important for the Court to follow the scientific method of doing the research and writing first before deliberation and vote.  Reversing the process would have the benefit of: avoiding the appearance of elevating politics over law by actually avoiding the temptation to substitute politics for law.  By engaging in the difficult work of legal research and analysis of existing text, history, and precedent before any of the members of the Court are asked to reach an ultimate determination, the Court can increase the odds of writing coherently and with greater unity.  Those witnessing this morning's oral argument know that task will be difficult.  The analytical strands and possibilities from the meaning of the English Bill of Rights of 1689 to Mr. Madison's expectations of draftsmanship to the deficiency (or not) of precedent, to the nature of trigger locks require Herculean effort to assemble into a proper answer.  If they were fully candid, I venture the Justices would concede that at this moment they possess at best a tentative conclusion.  Why vote before a fulsome examination of the law by reference to a complete exposition of what one member of the Court would offer as the most honest and defensible constitutional judgment.  No one would buy a common appliance not knowing if it could be constructed to perform its intended task.  Why ask Justices to accept opinions that have yet to be fully formed?

Who would write the opinion if a preliminary vote were not taken first for purposes of assignment?  Quite simply, the Justice next in line for a writing assignment who is fully up to date with his or her work.   Once and for all, the residual politics of confirmation would be set aside and only Court administration would govern.  Yes, this would deprive either the Chief Justice or the senior associate justice, most often, John Paul Stevens, of the right of assignment, but that deprivation would be in pursuit of a higher order good to which I venture both the Chief Justice and Justice Stevens would subscribe: the elevation of the rule of law and the strengthening of the respect for the Court as an institution.

Guns and Roberts

Dahlia and Akhil Amar just posted great pieces in Slate about D.C. v. Heller, the guns case to be argued on Tuesday at the Supreme Court. As lots of commentators have already said, this case is irresistible because the court will be writing on a practically blank slate: The relevant precedent is from 1939, and it didn't definitively hold that there's no individual right to bear arms in the Second Amendment, though the court certainly waved in that direction. As Dahlia points out, by staying out of the gun control fray, the court has been practicing a form of judicial restraint for the past 69 years. The big question now is whether it will stick to that path by issuing a decision that recognizes an individual right to bear arms but allows for a lot of gun control regulation, as Solicitor General Paul Clement is urging, or whether it will burn down a whole lot of gun laws in the wake of resurrecting the Second Amendment, as the brief that Vice President Cheney signed, and that David flags for us, would have it. (The court could also cling to the old interpretation of the Second Amendment as speaking only to having a gun for the purpose of serving in a state-run militia, but in light of the recent revisionist scholarship on the subject, I doubt it.) In any case, since this moment is a huge test for judicial restraint and modesty, isn't it also a huge test for Chief Justice John Roberts? Modesty was his mantra during his confirmation hearings. I've argued that he didn't deliver on that promise last term. Is Heller likely to be the big fat data point on this question from 2007-2008? I'm especially intrigued by the question since there's ostensibly a way to duck the looming constitutional question altogether, by treating D.C. as its own oddball scenario since it's not a state. Anyone think that's a likely resolution, or want to weigh in on the Clement v. Cheney face-off?