Second amendment minimalism: Heller as Griswold

Harvard Law Review

Volumn 122, Issue 1, 2008, Pages 246-274

  Sunstein, Cass R ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 57549111457     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (212)

1. 128 S. Ct. 2783 (2008).
2. Of course, there are other candidates. See, e.g., Printz v. United States, 521 U.S. 898 (1997);
3. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). It is important to note as well that the Heller Court embraced a particular species of originalism, one that emphasizes the "original public meaning" of the Constitution rather than the "original intention" of its authors.
4. I do not mean to suggest that the Court was correct on the historical issue, a question explored below at pp. 255-57.
5. 5 U.S. (1 Cranch) 137 (1803).
6. See, e.g., ROBERT LOWRY CLINTON, MARBURY v. MADISON AND JUDICIAL REVIEW (1989).
7. 5 U.S. (1 Cranch) at 173-80.
8. For an early statement to this effect, see Randy E. Barnett, News Flash: The Constitution Means What It Says, WALL ST. J., June 27, 2008, at A13.
9. See, e.g., SAUL CORNELL, A WELL- REGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGINS OF GUN CONTROL IN AMERICA (2006);
10. Jack N. Rakove, The Second Amendment: The Highest Stage of Originalism, 76 CHI.-KENT L. REV. 103, 158 (2000).
11. See also the ambivalent treatment, showing that there are plausible views on both sides, in MARK V. TUSHNET, OUT OF RANGE: WHY THE CONSTITUTION CAN'T END THE BATTLE OVER GUNS (2007).
12. 198 U.S. 45 (1905).
13. 381 U.S. 479 (1965).
14. Id. at 484-85.
15. See RICHARD A. POSNER, SEX AND REASON 328-29 (1992).
16. See, e.g., Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3 (Amy Guttman ed., 1997)
17. [hereinafter Scalia, Common-Law Courts in a Civil-Law System];
18. Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849 (1989).
19. Scalia, Common-Law Courts in a Civil-Law System, supra note 13, at 47.
20. See Antonin Scalia, The Rule of Law As a Law of Rules, 56 U. CHI. L. REV. 1175 (1989).
21. See id. at 1180.
22. There is a clear connection between this claim and the Court's rejection of interest-balancing in Heller. See 128 S. Ct. at 2821 (citing id. at 2852 (Breyer, J., dissenting)).
23. Scalia, Common-Law Courts in a Civil-Law System, supra note 13, at 38.
24. In some cases, however, there have been unmistakable originalist features. See, e.g., Crawford v. Washington, 541 U.S. 36, 42-43 (2004).
25. For a valuable discussion, see Stephanos Bibas, Originalism and Formalism in Criminal Procedure: The Triumph of Justice Scalia, the Unlikely Friend of Criminal Defendants?, 94 GEO. L.J. 183, 201 (2005).
26. See, e.g., Hein v. Freedom From Religion Found., Inc., 127 S. Ct. 2553 (2007)
27. (nonoriginalist opinion by Justice Alito); Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992)
28. (nonoriginalist opinion by Justice Scalia); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (same).
29. See, e.g., United States v. Miller, 307 U.S. 174 (1939);
30. United States v. Cruikshank, 92 U.S. 542 (1876).
31. Heller, 128 S. Ct. at 2814-15.
32. See CORNELL, supra note 8;
33. Rakove, supra note 8, at 158.
34. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748 (1976).
35. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
36. For a detailed argument that affirmative action is unobjectionable on originalist grounds, see Eric Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 VA. L. REV. 753 (1985).
37. See, e.g., Califano v. Goldfarb, 430 U.S. 199 (1977);
38. Reed v. Reed, 404 U.S. 71 (1971).
39. See, e.g., Roth v. United States, 354 U.S. 476 (1957).
40. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
41. For a critique on originalist grounds, see Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163 (1992).
42. For an illuminating discussion, see Adam M. Samaha, Originalism's Expiration Date, 30 CARDOZO L. REV. (forthcoming 2008).
43. See RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 7-15 (1996).
44. See Heller, 128 S. Ct. at 2851-53 (Breyer, J., dissenting).
45. Note that Justice Stevens also emphasized judicial precedents, id. at 2823 (Stevens, J., dissenting)
46. longstanding traditions, id. at 2842-45
47. and the need for judicial deference to reasonable legislative judgments, id. at 2846-47, 2846 n.39.
48. But see supra note 2.
49. The Court's clearest embrace of originalism, in its first century, can be found in Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 405 (1857): It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted. Note that in Dred Scott, the Court spoke in terms of original intentions, as well as original public meaning.
50. For an illuminating discussion of Marbury, with close reference to its context, see BRUCE ACKERMAN, THE FAILURE OF THE FOUNDING FATHERS: JEFFERSON, MARSHALL, AND THE RISE OF PRESIDENTIAL DEMOCRACY 182-88 (2005).
51. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803) ("Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.").
52. Id.
53. See CLINTON, supra note 5.
54. For a very different understanding, see ACKERMAN, supra note 33, at 264-65.
55. For a brief suggestion to this effect, see Barnett, supra note 7.
56. See TUSHNET, supra note 8, at xv-xvi (suggesting that while the question is close, the original understanding is best read to create an individual right to have guns for nonmilitary purposes).
57. For some doubts on that score from one of the leading historians of the Founding period, see Posting of Jack Rakove to Balkinization, http://balkin.blogspot.com/2008/06/thoughts-on-heller-from-real-historian.html (June 27, 2008, 20:02).
58. I put to one side some conceptual issues with attempting the originalist project under changed circumstances. See CASS R. SUNSTEIN, RADICALS IN ROBES: WHY EXTREME RIGHT-WING COURTS ARE WRONG FOR AMERICA 68-7r (2005).
59. Cases v. United States, 131 F.2d 916 (ist Cir. 1942).
60. United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).
61. Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007)
62. aff'd sub nom., Heller, 128 S. Ct. 2783 (2008).
63. See Reva B. Siegel, The Supreme Court, 2007 Term - Comment: Dead or Alive: Originalism As Popular Constitutionalism in Heller, 122 HARV. L. REV. 191 (2008).
64. See PollingReport.com, Guns, http://pollingreport.com/guns.htm (last visited Oct. 5, 2008);
65. see also Jeffrey M. Jones, Public Believes Americans Have Right To Own Guns, GALLUP, Mar. 27, 2008, http://www.gallup.com/poll/ 105721/Public-Believes-Americans-Right-Own-Guns.aspx.
66. Gallup Poll Editorial Staff, Gallup Summary: Americans and Gun Control, GALLUP, Apr. 18, 2007, http://www.gallup.com/poll/27229/ Gallup-Summary-Americans-Gun-Control.aspx.
67. Brief for Amici Curiae 55 Members of United States Senate et al. in Support of Respondent, Heller (No. 07-290), available at http://supreme.lp.findlaw.com/supreme-court/briefs/07-290/07-290.mer.ami.resp. cong.pdf.
68. Id.
69. Senator McCain responded as follows: "Today's decision is a landmark victory for Second Amendment freedom in the United States. ... I applaud this decision as well as the overturning of the District of Columbia's ban on handguns and limitations on the ability to use firearms for self-defense." Posting of Tom Bevan to Real Clear Politics, http://time-blog.com/real-clear- politics/2008/06/mccain-reacts-to-scotus-gun-de.html (June 26, 2008). Senator Obama stated: "I have always believed that the Second Amendment protects the right of individuals to bear arms .... Today's ruling, the first clear statement on this issue in 127 years, will provide muchneeded guidance to local jurisdictions across the country. As President, I will uphold the constitutional rights of law-abiding gun-owners, hunters, and sportsmen." Id.
70. For one account, see EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING 3-6 (1949).
71. Ronald Reagan was a member of the National Rifle Association, and he was committed to a broad individual right to have guns. See Chris Cox's Political Report - Ronald Wilson Reagan, www.nraila.org/issues/Articles/Read. aspx?ID=140 (last visited Oct. 5, 2008).
72. George H.W. Bush was also an NRA member for decades, although he resigned his membership in 1995.
73. See John Minz, Bush Resigns From NRA, Citing 'Broadside' on Agents, WASH. POST, May 11, 1995, at AI. George W. Bush has been strongly committed to a broad individual right.
74. See NRA Endorses George W. Bush for President, NRA POLITICAL VICTORY FUND, Oct. 13, 2004, www.nrapvf.org/News/Read.aspx?ID=4614 (last visited Oct. 5, 2008).
75. Lochner v. New York, 198 U.S. 45, 64 (1905).
76. Id. at 57-58.
77. Id. at 54-56.
78. For the Court's own recognition of this point, see, for example, Ferguson v. Skrupa, 372 U.S. 726, 728-29 (1963).
79. For one discussion of the problems with the Court's entrenching its own policy views, see RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1977).
80. 198 U.S. at 75 (Holmes, J., dissenting).
81. 410 U.S. 113 (1973).
82. See J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 VA. L. REV. (forthcoming Apr. 2009) (manuscript on file with the Harvard Law School Library).
83. Id. (manuscript at 1).
84. Id. (manuscript at 2-3).
85. There are many different accounts of the vice of Lochner; I emphasize conventional ones here. For discussion of what might be wrong with Lochner, see JOHN HART ELY, DEMOCRACY AND DISTRUST A THEORY OF JUDICIAL REVIEW 14-15 (1980);
86. David A. Strauss, Why Was Lochner Wrong?, 70 U. CHI. L. REV. 373 (2003);
87. and Cass R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873 (1987).
88. CORNELL, supra note 8.
89. Id. at 51-52.
90. Id. at 2.
91. Rakove, supra note 8, at 158. In the process of supporting this argument, Rakove offers a sharp challenge to influential work by academic lawyers.
92. See id. at 156-59.
93. See id.; see also Brief of Amici Curiae Jack N. Rakove et al. in Support of Petitioners, Heller, 128 S. Ct. 2783 (2008) (No. 07-290), available at http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07- 290-PetitionerAmCuRakove.pdf;
94. Posting of the New York Times to Times Topics, http://topics.blogs. nytimes.com/2008/06/26/qa-jack-rakove-on-heller-and-history (June 26, 2008 18:55); Rakove, supra note 39.
95. Heller, 128 S. Ct. at 2831-42 (Stevens, J., dissenting).
96. See id. at 2789, 2795, 2798-99, 2803, 2820 (majority opinion)
97. ; id. at 2848-49, 2866 (Breyer, J., dissenting).
98. Rakove, supra note 8, at 105.
99. This point raises a general problem for originalism: if the Constitution is to be construed in accordance with the original public meaning, there is a serious question at to whether lawyers are competent for the task.
100. See Siegel, supra note 44.
101. See ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY: AN INSTITUTIONAL THEORY OF LEGAL INTERPRETATION (2006).
102. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129 (1893).
103. Id. at 144.
104. Id.
105. Id.
106. Id. at 151.
107. Id. at 155.
108. Id. at 155-56.
109. Id. at 156.
110. CORNELL, supra note 8;
111. Rakove, supra note 8.
112. The existence of ambiguity and reasonable disagreement underpins Judge Wilkinson's claim that Heller is closely analogous to Roe. See Wilkinson, supra note 58.
113. 347 U.S. 483 (1954).
114. 430 U.S. 199 (1977).
115. 128 S. Ct. 2229 (2008).
116. The word "almost" is necessary because of VERMEULE, supra note 72.
117. 304 U.S. 144 (1938).
118. Id. at 153 n.4 ("[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.").
119. ELY, supra note 61.
120. Heller, 128 S. Ct. at 2846 n.39 (Stevens, J., dissenting) ("It was just a few years after the decision in Miller that Justice Frankfurter (by any measure a true judicial conservative) warned of the perils that would attend this Court's entry into the 'political thicket' of legislative districting. The equally controversial political thicket that the Court has decided to enter today is qualitatively different from the one that concerned Justice Frankfurter: While our entry into that thicket was justified because the political process was manifestly unable to solve the problem of unequal districts, no one has suggested that the political process is not working exactly as it should in mediating the debate between the advocates and opponents of gun control. ... It is, however, clear to me that adherence to a policy of judicial restraint would be far wiser than the bold decision announced today."
121. (citations omitted) (quoting Colegrove v. Green, 328 U.S. 549, 556 (1946) (plurality opinion))).
122. Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
123. Id. at 482-83.
124. Id. at 484.
125. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003) (understanding sexual privacy as part of liberty, and not stressing penumbras and emanations).
126. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 148-56 (Yale Univ. Press 2d ed. 1986) (1962).
127. See POSNER, supra note 12, at 325-26.
128. See Cass R. Sunstein, What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage, 2003 SUP. CT. REV. 27, for one effort.
129. For discussion, see id.
130. See Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting).
131. Id. at 553.
132. See Cass R. Sunstein, Due Process Traditionalism, 106 MICH. L. REV. 1543 (2008).
133. See POSNER, supra note 12, at 329.
134. Poe v. Ullman, 367 U.S. 497, 554 (1961) (Harlan, J., dissenting)
135. incorporated by reference in Griswold v. Connecticut, 381 U.S. 479, 500 (1965) (Harlan, J., concurring in the judgment).
136. See, e.g., Washington v. Glucksberg, 521 U.S. 702 (1997) (refusing to recognize a right to physician-assisted suicide due to historical disapproval of the practice of assisting suicide).
137. But see, e.g., Lawrence v. Texas, 539 U.S. 558 (2003) (rejecting limitation of due process clause to traditional mores).
138. See MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY 5 (2004);
139. Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court As a National Policy-Maker, 6 J. PUB. L. 279 (1957).
140. 539 U.S. 558.
141. Id. at 572.
142. See, e.g., KLARMAN, supra note 104.
143. See, e.g., Dahl, supra note 104.
144. 347 U.S. 483 (1954).
145. 388 U.S. 1 (1967).
146. 404 U.S. 71 (1971).
147. 429 U.S. 190 (1976).
148. 518 U.S. 515 (1996).
149. 517 U.S. 620 (1996).
150. See sources cited supra note 45.
151. Heller, 128 S. Ct. at 2818 ("Few laws in the history of our Nation have come close to the severe restriction of the District's handgun ban.").
152. See POSNER, supra note 12, at 325.
153. Similarly, at the time of Lawrence, most state anti-sodomy laws were several decades old and rarely enforced. See Lawrence v. Texas, 539 U.S. 558, 570, 572 (2003).
154. See David A. Strauss, Modernization and Representation Reinforcement: An Essay in Memory of John Hart Ely, 57 STAN. L. REV. 761, 762 (2004).
155. See Dahl, supra note 104, at 284-86.
156. See CASS R. SUNSTEIN, A CONSTITUTION OF MANY MINDS (forthcoming 2009).
157. See Dahl, supra note 104, at 284-85;
158. cf. PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY 8-9 (Nathaniel Persily et al. eds., 2008) (discussing the effects of Supreme Court decisions on public opinion).
159. Related issues are discussed in detail in SUNSTEIN, supra note 120.
160. See, e.g., Harry H. Wellington, Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication, 83 YALE LJ. 221, 284 (1973) ("The Court's task is to ascertain the weight of the principle in conventional morality and to convert the moral principle into a legal one by connecting it with the body of constitutional law.").
161. See LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004).
162. The Court occasionally does refer to such a consensus in the Eighth Amendment context, see, e.g., Kennedy v. Louisiana, 128 S. Ct. 2641, 2650-53 (2008);
163. Roper v. Simmons, 543 U.S. 551, 564 (2005), but the word "unusual" in the amendment provides a textual hook for that approach in these cases.
164. See also Lawrence v. Texas, 539 U.S. 558 (2003) (considering the general practice of states in reaching the conclusion that the Texas anti-sodomy law was unconstitutional).
165. See JOHN RAWLS, A THEORY OF JUSTICE 133, 453-54(1971).
166. Cf. Lawrence, 539 U.S. at 571-72 ("[O]ur laws and traditions in the past half-century . . . show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.");
167. Romer v. Evans, 517 U.S. 620, 682-83 (1996) (emphasizing the unusual nature of the provision that the Court invalidated).
168. See Siegel, supra note 44.
169. See JOHN W. JOHNSON, GRISWOLDV. CONNECTICUT: BIRTH CONTROL AND THE CONSTITUTIONAL RIGHT OF PRIVACY (2005).
170. For a history of the social reform movement leading up to Brown, see RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN v. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY (2d ed. 2006).
171. For a definition of minimalism, see CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT ix-xi (1999).
172. On the distinction between shallowness and narrowness, see id. at 16-19.
173. Heller, 128 S. Ct. at 2817-19.
174. Id. at 2816-17 (footnote omitted).
175. Id. at 2817
176. (quoting United States v. Miller, 307 U.S. 174, 179 (1939)).
177. Id. at 2817 (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES *148-49).
178. See Cass R. Sunstein, Trimming, 122 HARV. L. REV. (forthcoming Feb. 2009).
179. Heller, 128 S. Ct. at 2817 n.26.
180. Id. at 2821.
181. 98 U.S. 145 (1879).
182. Heller, 128 S. Ct. at 2821.
183. Id. (citing id. at 2852 (Breyer, J., dissenting)).
184. In an opaque passage, the Court said, "With respect to [the nineteenth-century case of United States v.] Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases.
185. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886)
186. and Miller v. Texas, 153 US. 535, 538 (1894)
187. reaffirmed that the Second Amendment applies only to the Federal Government." Heller, 128 S. Ct. at 2813 n.23 (parallel citations omitted).
188. Id. at 2817-18, 2821.
189. Id. at 2821.
190. Id.
191. See TUSHNET, supra note 8 (suggesting that reasonable arguments exist on both sides).
192. See the recitation in Justice Stevens's dissenting opinion. Heller, 128 S. Ct. at 2823 n.2 (Stevens, J., dissenting).
193. See TUSHNET, supra note 8, at 73-126.
194. See Cass R. Sunstein, Burkean Minimalism, 105 MICH. L. REV. 353 (2006).
195. For different but illuminating perspectives, see JOAN BURBICK, GUN SHOW NATION: GUN CULTURE AND AMERICAN DEMOCRACY (2006);
196. and CORNELL, supra note 8.
197. Cf. Dan M. Kahan & Donald Braman, More Statistics, Less Persuasion: A Cultural Theory of Gun-Risk Perceptions, 151 U. PA. L. REV. 1291 (2003) (arguing that an individual's beliefs about gun control derive from her wider cultural worldview).
198. Christine Cadena, Presidential Campaign Platforms 2008: The Issues of Gun Control, ASSOCIATED CONTENT, July 2, 2007, http://www.associatedcontent.com/article/294410/presidential-campaign-platforms- 2008.html.
199. See Flemming v. Nestor, 363 U.S. 603 (1960).
200. See Miller v. California, 413 U.S. 15 (1973).
201. See Kelo v. City of New London, 545 U.S. 469 (2005).
202. See SUNSTEIN, supra note 40, at 68-71.
203. I am greatly oversimplifying the Lochner era here. Although the Court did strike down important legislation, it also allowed considerable room for the police power. For discussion
204. see GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 741-68 (5th ed. 2005).
205. See, e.g., United States v. Garnett, No. 05-CR-20002-3, 2008 WL 2796098 (E.D. Mich. July 18, 2008);
206. Mullenix v. Bureau of Alcohol, Tobacco, Firearms & Explosives, No. 5:07-CV-154-D, 2008 WL 2620175 (E.D.N.C. July 2, 2008);
207. United States v. Dorosan, No. 08-042, 2008 WL 2622996 (E.D. La. June 30, 2008).
208. 531 U.S. 98(2000).
209. If the arc of constitutional history is a guide, judicial appointments are only a part of the picture; perceived public convictions matter as well. See KLARMAN, supra note 104; Dahl, supra note 104.
210. Consider Jack Rakove's suggestion that "neither of the two main opinions in Heller would pass muster as serious historical writing." Rakove, supra note 39.
211. See the Court's notation: Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. . . . [T]he Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
212. Heller, 128 S. Ct. at 2791-92. It is not clear, of course, that this passage is properly counted as a qualification of originalism.