Dead or alive: Originalism as popular constitutionalism in Heller

Harvard Law Review

Volumn 122, Issue 1, 2008, Pages 191-245

  Siegel, Reva B ^a  

^a YALE UNIVERSITY   (United States)

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EID: 57649096450     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (473)

1. Robert A. Sprecher, The Lost Amendment (pt. 2), 5 I A.B.A. J. 665, 669 (1965).
2. Lawrence v. Texas, 539 U.S. 558, 602-03 (2003) (Scalia, J., dissenting).
3. U.S. CONST, amend. II ("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.").
4. District of Columbia v. Heller, 128 S. Ct. 2783 (2008).
5. Linda Greenhouse, Three Defining Opinions, N.Y. TIMES, July 13, 2008, at WK4;
6. see also Randy E. Barnett, Op-Ed., News Flash: The Constitution Means What It Says, WALL ST. J., June 27, 2008, at A13 ("Justice Scalia's opinion is the finest example of what is now called 'original public meaning' jurisprudence ever adopted by the Supreme Court.");
7. David G. Savage, Supreme Court Finds History Is a Matter of Opinions, L.A. TIMES, July 13, 2008, http://articles.latimes. com/2008/jul/13/nation/na-scotus13 ("This year the Supreme Court relied more than ever on history and the original meaning of the Constitution in deciding its major cases.");
8. Legal Theory Blog, http://lsolum.typepad.com/legaltheory/2008/06/ analysis-of-hel.html (June 26, 2008, 10:56) ("It is difficult to imagine a clearer or more thoroughgoing endorsement of original public meaning originalism.").
9. Posting of Jack Balkin to Balkinization, http://balkin.blogspot.com/2008/ 06/this-decision-will-cost-american-lives.html (June 27, 2008, 00:08) ("[T]he result in Heller would have been impossible without... social movement actors who, over a period of about 35 years, succeeded in changing Americans' minds about the meaning of the Second Amendment....This is living constitutionalism in action.");
10. Dave Kopel, Conservative Activists Key to DC Handgun Decision, HUMAN EVENTS, June 27, 2008, http://www.humanevents.com/ article.php?id=27229 (reporting that the author - a member of the Cato Institute who helped argue Heller - attributes both its result and its originalist reasoning to twentieth-century social movements);
11. Posting of Adam Winkler to The Huffington Post, http://www. huffingtonpost.com/adam-winkler/justice-scalias-living-co-b-109728.html (June 27, 2008, 21:17) ("[W]hat explains the reasonable regulations that Scalia's opinion recognizes? America's living tradition of the right to bear arms.").
12. Lawrence, 539 U.S. at 602
13. (Scalia, J., dissenting) (quoted supra p. 191).
14. 347 U.S. 483 (1954).
15. See U.S. CONST, amend. II ("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.").
16. This Comment builds on earlier work exploring how movement conflict helps guide the Constitution's development and how responsive interpretation helps sustain its democratic authority. See Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 CAL. L. REV. 1323 (2006) [hereinafter Siegel, Constitutional Culture];
17. Reva B. Siegel, The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument, 57 DUKE L.J. (forthcoming 2008);
18. Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. PA. L. REV. 297 (2001) [hereinafter Siegel, Text in Contest];
19. see also Jack M. Balkin & Reva B. Siegel, Principles, Practices, and Social Movements, 154 U. PA. L. REV. 927 (2006);
20. Robert Post & Reva Siegel, Originalism As a Political Practice: The Right's Living Constitution, 75 FORDHAM L. REV. 545 (2006) [hereinafter Post & Siegel, Originalism as a Political Practice];
21. Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. 373 (2007) [hereinafter Post & Siegel, Roe Rage].
22. See Siegel, Constitutional Culture, supra note 10, at 1347-48;
23. Post & Siegel, Originalism As a Political Practice, supra note 10.
24. 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 3, 38 (Amy Gutmann ed., 1997).
25. See Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 854 (1989) (discussed infra note 137).
26. Heller, 128 S. Ct. at 2821 (denouncing an interest-balancing test proposed by Justice Breyer). To illustrate his claim, Justice Scalia discusses the application of the First Amendment in Skokie, Illinois - a rather odd example of the unchanging scope of rights, as the text of the First Amendment is expressly addressed to "Congress," and does not mention the states.
27. See id.
28. See, e.g., id. at 2789-90, 279g;
29. id. at 2824-25 (Stevens, J., dissenting).
30. See U.S. CONST. amend. II ("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." (emphasis added)).
31. Heller, 128 S. Ct. at 2822 (Stevens, J., dissenting);
32. see also id. at 2823 (citing United States v. Miller, 307 U.S. 174 (1939)).
33. Id. at 2831.
34. Id. at 2822.
35. Id. at 2801 (majority opinion) ("[T]he Second Amendment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia.").
36. Id. at 2821.
37. Id. at 2793 (citing Muscarello v. United States, 524 U.S. 125, 143 (Ginsburg, J., dissenting));
38. see also id. at 2794. Sensible of the temporal discrepancy, the majority then cites state constitutional provisions it asserts "unambiguously" demonstrate that the "natural meaning" of "bear arms" is the same as its historical meaning;
39. the sources cited do not supply unambiguous support for its claims, and a number are from a later period. See id. at 2793.
40. By contrast, Heller's dissenters rely on a usage study of more than 100 texts that employed the term "bear arms" in the period between the Declaration of Independence and the adoption of the Second Amendment to establish that the term was regularly used in a military context. See id. at 2828 n.9 (Stevens, J., dissenting).
41. Id. at 2796 (majority opinion).
42. Id. at 2804 (emphasis added);
43. see also id. (discussing "our longstanding view that the Bill of Rights codified venerable, widely understood liberties");
44. id. at 2798 (observing that the English Bill of Rights "has long been understood to be the predecessor to our Second Amendment").
45. See, e.g., id. at 2797 (citing United States v. Cruikshank, 92 U.S. 542 (1876));
46. id. at 2802 (citing Robertson v. Baldwin, 165 U.S. 275 (1897)).
47. Id. at 2837 n.28 (Stevens, J., dissenting).
48. Id. at 2805 (majority opinion).
49. Cf. Scalia, supra note 12, at 38 ("I will consult the writings of some men who happened to be delegates to the Constitutional Convention....I do so, however, not because they were Framers and therefore their intent is authoritative and must be the law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood.").
50. Id.
51. See Heller, 128 S. Ct. at 2812 (using as authority a treatise from 1891).
52. Cf. Akhil Reed Amar, The Supreme Court, 2007 Term - Comment: Heller, HLR, and Holistic Legal Reasoning, 122 HARV. L. REV. 145, 173 (2008) ("But if a future twenty-third-century historian seeks to understand the 1960s, I hope she does not treat the 1980s as decisive evidence. Even if most commentators in the years after 1791 read the Second Amendment through the prism of English common law and individual rights of self-defense, this approach may well have been anachronistic and incorrect.").
53. Heller, 128 S. Ct. at 2816-17.
54. Cf. Mark Tushnet, Heller and the Perils of Compromise, 13 LEWIS & CLARK L. REV. (forthcoming Apr. 2009) (manuscript at 41-42), available at http://papers.ssrn.com/s013/papers. cfm ?abstract-id= 1189494 (arguing that in determining the scope of the right the Second Amendment protects, Justice Scalia's opinion employs as much discretion as Justice Breyer's dissent, though Justice Scalia "cannot admit the fact");
55. J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 VA. L. REV. (forthcoming 2009) (manuscript at 22-23, available at http://ssrn.com/abstract= 1265118) ("As Justice Breyer notes, the Court does not explain why these restrictions are embedded in the Second Amendment. The Constitution's text...has as little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy." (footnote omitted));
56. Richard A. Posner, In Defense of Looseness: The Supreme Court and Gun Control, NEW REPUBLIC, Aug. 27, 2008, at 32, 34 (observing that the reach of the opinion is "up for grabs").
57. Heller, 128 S. Ct. at 2817.
58. 307 U.S. 174 (1939).
59. Heller, 128 S. Ct. at 2817 (quoting Miller, 307 U.S. at 179).
60. Miller, 307 U.S. at 179 ("These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.").
61. See Heller, 128 S. Ct. at 2791-92 ("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.").
62. Id. at 2817.
63. Id. at 2801 ("[T]he Second Amendment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right -unlike some other English rights -was codified in a written Constitution.").
64. See id. at 2815-16.
65. Id. at 2815 n.24 (citation omitted).
66. See Siegel, Text in Contest, supra note 10, at 299-300;
67. see also id. at 314 ("Outside the courthouse, the Constitution's text plays a significant role in eliciting and focusing normative disputes among Americans about...rights under the Constitution - a dynamic that serves to communicate these newly crystallizing understandings and expectations about...rights to judges interpreting the Constitution inside the courthouse door.").
68. Heller, 128 S. Ct. at 2815 n.24.
69. See Siegel, Constitutional Culture, supra note 10.
70. See Post & Siegel, Originalism As a Political Practice, supra note 10.
71. LEE KENNETT & JAMES LAVERNE ANDERSON, THE GUN IN AMERICA: THE ORIGINS OF A NATIONAL DILEMMA 231 (1975) ("Within a week of President Kennedy's death a dozen firearms bills had been placed in the congressional hoppers."). A Hein Online title search for law review articles on the "Second Amendment," "bear arms," or "gun control" shows that publications begin steadily to increase in the 1960s.
72. See infra note 157.
73. ALEXANDER DECONDE, GUN VIOLENCE IN AMERICA: THE STRUGGLE FOR CONTROL 175 (2001);
74. KENNETT & ANDERSON, supra note 46, at 231-43;
75. see also Stanley Meisler, Get Your Gun from the Army, 198 NATION 568, 569 (1964) (noting that members of the NRA get "a subscription to the NRA's American Rifleman, a chance to buy Army guns, a massive public relations campaign that included a float in the 1963 Tournament of Roses Parade saying, 'The Bill of Rights - Freedom to Keep and Bear Arms' and, most important, some lobbying on their behalf in the halls of state legislatures and Congress");
76. Drew Pearson & Jack Anderson, The Washington Merry-Go-Round: Gun Industry Holds Capitol Hill at Bay, WASH. POST, Apr. 13, 1968, at D15 ("More moving than the memory of President John F. Kennedy and the Rev. Martin Luther King, apparently, has been the lobbying of the National Rifle Association which, for six years, has blocked every move on Capitol Hill to curb the indiscriminate sale of firearms.").
77. See ROBERT J. SPITZER, THE POLITICS OF GUN CONTROL 102 (1995).
78. In 1956, Life magazine ran a story on "the western film genre, noting that 'in Hollywood eight films with "gun" in the title have been completed and actors are learning now to shoot and be shot,'" and "each evening, a television critic in The Nation reported, 'twenty to thirty million American homes rock with the sound of sudden gunfire.'" KENNETT & ANDERSON, supra note 46, at 218;
79. see also DECONDE, supra note 47, at 161 (reporting the depiction of gun violence in the 1950s on the "new medium of television," where "[n]ight and day with the press of a button Americans could now view programs featuring graphic firearms violence," including "Gunsmoke, Have Gun Will Travel, The Rifleman, and Wanted Dead or Alive").
80. For example, in 1959, Gallup reported 59% of the public in support of a handgun ban. See sources cited infra note 74 and accompanying text.
81. See DECONDE, supra note 47, at 173-84.
82. See Peter Bart, Los Angeles Whites Voice Fear, N.Y. TIMES, Aug. 17, 1965, at 1 (reporting on "groups of white men in gas stations and stores talking about 'what they'll do if the niggers attack,'" and quoting an observer describing the "fantastic run on gun stores" as going "beyond the instinct for self protection" and the "smell of violence in the air in both the white and Negro communities....");
83. Pearson & Anderson, supra note 47 (reporting that "the gun lobby has started an ugly whispering campaign that the gun control bill would prevent white people from buying weapons to defend their homes against Negro rioters").
84. See generally Vesla M. Weaver, Frontlash: Race and the Development of Punitive Crime Policy, 21 STUD. AM. POL. DEV. 230, 247 (2007) (discussing the ways in which conservatives reacting to different forms of violence "attached civil rights to lawlessness"). At least some gun control efforts during this period seem to have been racially motivated and were resisted by some members of the black community.
85. See, e.g., Jane Rhodes, Fanning the Flames of Racial Discord: The National Press and the Black Panther Party, 4 HARV. INT'L J. PRESS/POL. 95, 95 (1999) (discussing a California bill that was motivated "in part to stifle the [Black] Panthers' open use of guns" and the Panthers' protest of that bill at the California state legislature);
86. BLACK PANTHER PARTY, PLATFORM AND PROGRAM: WHAT WE WANT, WHAT WE BELIEVE (1966),
87. reprinted in THE BLACK PANTHERS SPEAK 2, 3 (Philip S. Foner ed., 1970) ("The Second Amendment to the Constitution of the United States gives a right to bear arms. We therefore believe that all black people should arm themselves for self defense."). But racial conflict did not become entrenched in these ways. A black nationalist right to bear arms did not become the focal point of organizing in the African-American community.
88. See Black Panther Party, Platform and Program: What We Want, What We Believe (1972), http://www.stanford.edu/group/blackpanthers/history.shtml (omitting reference to the Second Amendment). Instead, there has been substantial support for gun control.
89. See PEW RESEARCH CTR. FOR PEOPLE & THE PRESS, HANDGUNS: PUBLIC REJECTS A BAN - BUT SUPPORTS CONTROLS (2008), http://pewresearch.org/pubs/835/handgun-ban ("[F]ully three-quarters of African Americans (75%) say controlling gun ownership is more important [than protecting] the rights of Americans to own guns.");
90. Paul M. Barrett, NAACP Suit Puts Race on Table in Gun Debate, WALL ST. J., Aug. 13, 1999, at Bi (discussing the NAACP's suit against gun manufacturers, which claimed that "African-Americans have been 'disproportionately injured' by the gun industry's 'negligent marketing'"
91. (quoting complaint in NAACP v. Acusport, Inc., 271 F. Supp. 2d 435 (E.D.N.Y. 2003))).
92. See, e.g., S. REP. No. 90-1097 (1968),
93. reprinted in 1968 U.S.C.C.A.N. 2112, 2169 ("[T]he decided cases, both at the Federal and State levels, reveal no constitutional barrier to the passage of [federal gun control regulation]. To the contrary, they afford ample precedent for its validity."). The Court had sustained Congress's authority, under the Commerce Clause and the Second Amendment, to enact gun control laws during the New Deal.
94. See United States v. Miller, 307 U.S. 174, 178 (1939) ("In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."). Lower courts understood Miller's interpretation of the Second Amendment as identifying a collective right to militia-based weapons.
95. See, e.g., United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976) ("It is clear that the Second Amendment guarantees a collective rather than an individual right.");
96. United States v. Casson, 288 F. Supp. 86, 88 (D. Del. 1968) ("In the absence of some showing that the possession or use of the shotgun bears some reasonable relationship to the preservation or efficiency of a well regulated Militia, the Second Amendment does not guarantee defendant the right to keep and bear such a firearm.");
97. Galvan v. Superior Court, 452 P.2d 930, 940 (Cal. 1969) ("The claim that legislation regulating weapons violates the Second Amendment has been rejected by every court which has ruled on the question.").
98. Mail Order Gun Control: Hearing Before the Subcomm. on Postal Operations of the H. Comm. on Post Office and Civil Serv., 90th Cong. 16 (1968) (reprinting legal memorandum on "The Right To Bear Arms");
99. id. at 17 (reviewing text, ratification history, and case law and concluding "[t]here is little or no case law on this subject. The principal case involved a sawed off shotgun which the Court held was not vital to the maintenance of a 'well regulated Militia.'").
100. See, e.g., S. REP. NO. 90-1097.
101. EMILIE RAYMOND, FROM MY COLD, DEAD HANDS: CHARLTON HESTON AND AMERICAN POLITICS 179 (2006).
102. Joey Bishop Show (ABC television broadcast June 18, 1968) (a copy of their statement is available at http://www.vpc.org/nrainfo/memo.htm, as well as http://www.gunownersalliance.com/-Lbj04.htm;
103. original available at Lyndon Baines Johnson Library). For correspondence between the Johnson administration and actors involved in gun control efforts, see http://www.vpc.org/nrainfo/doc.htm;
104. http://www.gunownersalliance.com/moses-1.htm (last visited Oct. 5, 2008). For Heston's perspective, see RAYMOND, supra note 56, at 178-80.
105. The Executive Vice President of the NRA testified before Congress that no "sane American, who calls himself an American, can object to placing in [the Gun Control Act of 1968] the instrument which killed [President Kennedy]." Keersten Heskin, Easier Than Obtaining a Driver's License: The Federal Licensing of Gun Dealers, 46 FLA. L. REV. 805, 819 n.123 (1994);
106. see also NRA Staff, Congress Threshes Out Gun Law Issue: Senators Defeat Four Registration and Licensing Attempts, AM. RIFLEMAN, Nov. 1968, at 22, 22 ("[W]hile the interstate features of the measure 'appear unduly restrictive and unjustified in their application to law-abiding citizens, the measure as a whole appears to be one that the sportsmen of America can live with and we are particularly glad to see 3 positive recommendations of the NRA become law.'"
107. (quoting NRA Executive Vice President Franklin L. Orth)).
108. Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (codified in scattered sections of 5, 18, and 42 U.S.C.);
109. Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (codified in scattered sections of 26 U.S.C.).
110. Weaver, supra note 52, at 251 ("Ultimately, liberals betrayed their early solidaristic calls for social reform and warring on poverty and, by the end of the 1960s, they began downplaying underlying causes, arguing instead for more gun control....By 1968, Democrats had aligned themselves with the 'law and order' program and were trying desperately to mimic the Republicans.").
111. Yale Kamisar, How Earl Warren's Twenty-Two Years in Law Enforcement Affected His Work as Chief Justice, 3 OHIO ST. J. CRIM. L. II, 25 (2005) ("[T]hat so many of the coerced confession cases 'were appeals from southern courts, and so many of the defendants powerless blacks cast them as de facto civil rights cases.'"
112. (quoting ED CRAY, CHIEF JUSTICE: A BIOGRAPHY OF EARL WARREN 462 (1997))).
113. An early draft of Chief Justice Warren's Miranda opinion noted that "Negro defendants were subjected to physical brutality - beatings, hanging, whipping - employed to extort confessions" and cited a 1947 report of the "President's Committee on Civil Rights [that] probed further into police violence upon minority groups." BERNARD SCHWARTZ, SUPER CHIEF: EARL WARREN AND HIS SUPREME COURT 591 (1983) (quoting an early draft of the Miranda opinion);
114. see also A. Kenneth Pye, The Warren Court and Criminal Procedure, 67 MICH. L. REV. 249, 256 (1968) ("The Court's concern with criminal procedure can be understood only in the context of the struggle for civil rights....If the Court's espousal of equality before the law was to be credible, it required not only that the poor Negro be permitted to vote and to attend a school with whites, but also that he and other disadvantaged individuals be able to exercise, as well as possess, the same rights as the affluent white when suspected of crime.").
115. The 1968 Act was amended over the President's opposition to include war-on-crime provisions that restricted the rights of criminal defendants only recently recognized by the Warren Court. See SPITZER, supra note 48, at 172 n.n;
116. ROBERT J. SPITZER, THE PRESIDENCY AND PUBLIC POLICY: THE FOUR ARENAS OF PRESIDENTIAL POWER 69-70 (1983);
117. Weaver, supra note 52, at 255-58;
118. Crime Bill an Odd Mix of Good, Bad, INDEP., June 24, 1968, at B-2.
119. For example, contrary to the Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966), "[t]he bill provided that a confession by a defendant was to be admissible in evidence if it were 'voluntary,' even if the suspect had not been warned of his constitutional rights."
120. Congress Passes Extensive Anticrime Legislation, 24 CONG. Q. ALMANAC 225, 226 (1968). The bill also "provided for the admissibility in evidence of eyewitness testimony, even if the suspect had not had a lawyer when he was identified in a police lineup,"
121. id.
122. directly contradicting the Warren Court's holding in United States v. Wade, 388 U.S. 218 (1967), that such evidence must be excluded. For further discussion of these provisions,
123. see Recent Case, 82 HARV. L. REV. 1392 (1969) (discussing Title II of the Omnibus Crime Control and Safe Streets Act of 1968);
124. see also Robert A. Burt, Miranda and Title II: A Morganatic Marriage, 1969 SUP. CT. REV. 81.
125. See Alexander M. Bickel, The Senate Judiciary's Abominable Crime Bill, NEW REPUBLIC, May 25, 1968, at 13, 13 (criticizing the bill as "so mangled by the Senate Judiciary Committee as to be an abomination").
126. See LIVA BAKER, MIRANDA: CRIME, LAW AND POLITICS 200-08 (1983).
127. See Bob Kastenmeier, Toward a Peaceful Society, CAP. TIMES, July 15, 1968, at 32.
128. Weaver, supra note 52, at 251 (quoting Richard M. Nixon, Toward Freedom from Fear (1968),
129. reprinted in 114 CONG. REC. 12936, 12936 (1968)).
130. Id. at 259 (describing a Nixon commercial linking protesters to "violence," which Nixon observed "hits it right on the nose.
131. It's all about law and order and the damn Negro-Puerto Rican groups out there." (quoting PHILIP A. KLINKNER & ROGERS M. SMITH, THE UNSTEADY MARCH: THE RISE AND DECLINE OF RACIAL EQUALITY IN AMERICA 292 (1999)) (internal quotation marks omitted));
132. see also BAKER, supra note 64, at 244 ("[Although Nixon would not mention [George] Wallace by name, the Republican would appear as ' a more respectable alternative' to the Alabaman, countering his rhetoric 'with a velvet-glove version of the mailed fist.'");
133. Steven Cann, Politics in Brown and White: Resegregation in America, 88 JUDICATURE 74, 76 (2004) (describing Nixon's "southern strategy" as "an electoral strategy of the Republican Party to expand its electoral base by going soft on civil rights");
134. id. ("Nixon's former presidential counsel John W. Dean argues that Rehnquist once defined 'strict constructionism' as voting against criminal defendants and civil rights plaintiffs.").
135. MICHAEL W. FLAMM, LAW AND ORDER: STREET CRIME, CIVIL UNREST, AND THE CRISIS OF LIBERALISM IN THE 1960S, at 173 (2005);
136. see also Weaver, supra note 52, at 251, 259.
137. KRISTIN A. GOSS, DISARMED: THE MISSING MOVEMENT FOR GUN CONTROL IN AMERICA 39-40 (2006).
138. For the 1972 Republican Party platform expressing support for gun control, see infra p. 215.
139. See GOSS, supra note 69, at 166-67 ("Many early gun control leaders were inspired by the citizen movements for civil rights, women's rights, and consumer protection that unfolded in the 1950s, 1960s, and 1970s. They thought that a national victory for gun control could be next. Yet the gun control campaign was beginning to institutionalize nationally at a time when the power and moral authority of the federal government were waning. By 1974, the War on Poverty and the premises that inspired it were under attack....").
140. GOSS, supra note 69, at 157-62.
141. D.C. CODE ANN. § 7-2501.01 (LexisNexis 2008).
142. Gallup's Pulse of Democracy: Gun Laws, http://www.gallup.com/poll/ 1645/Guns.aspx (last visited Oct. 5, 2008);
143. see also DECONDE, supra note 47, at 165 (reporting that in 1959 a Gallup poll found that 59% of Americans "wanted private ownership of handguns outlawed");
144. Gun Control Bill Reported in House, 32 CONG. Q. ALMANAC 406, 407 (1976) ("[I]n a series of lopsided votes,...[the House Judiciary Committee] rejected amendments to ban the sale and possession of handguns....");
145. Gun Control, 28 CONG. Q. ALMANAC 524 (1972) ("Any proposal outlawing or drastically restricting the private possession of small arms would stand little chance of passage at this time." (quoting Robert McClory, H. Subcomm. on the Judiciary) (internal quotation mark omitted)).
146. Ashley Halsey Jr., The President's Stand on Guns, AM. RIFLEMAN, Aug. 1975, at 23, 23 (discussing news of the Gallup polling on declining support for handgun controls and suggesting that the President was subject to "influences from within the Treasury and the Justice Departments");
147. cf. supra note 58 (describing NRA support for provisions of the 1968 Gun Control Act).
148. James Vorenberg, The War on Crime: The First Five Years, ATLANTIC MONTHLY, May 1972, at 63, 63 (reporting a "30 percent increase in the reported crime rate during the first three years of the Nixon Administration");
149. see also GOSS, supra note 69, at 40 ("By the beginning of 1975, the nation had reached the highest rate of gun violence ever recorded: 16.1 shooting deaths per 100,000.").
150. See supra note 58 (describing NRA support for provisions of the 1968 Gun Control Act).
151. Firearms Legislation: Hearing Before the Subcomm. on Crime of the H. Comm. on the Judiciary, 94th Cong. 2845-47 (1975) (statement of Harlon Carter, Executive Director, National Rifle Association, Institute for Legislative Action).
152. Carter continued: There are very few victims of brutal criminality who wonder or even care about the socioeconomic conditions that may or may not have motivated their attacker....[U]nder our system of justice - or at least as it was designed - the criminal who directly caused that suffering is supposed to pay the consequences. But somehow, it does not work out that way any more. ....I do not believe that it is possible to take enough guns away from criminals to insure the safety of a disarmed public. But if the President is right, if most crime is attributable to a relatively small number of criminals, we can take them - the criminals - out of circulation.
153. Id. at 2853.
154. Reagan had served on the advisory board of Young Americans for Freedom since 1962. History, Young Americans for Freedom, http://www.yaf.com/ history/index.php (last visited Oct. 5, 2008);
155. see also GREGORY L. SCHNEIDER, CADRES FOR CONSERVATISM: YOUNG AMERICANS FOR FREEDOM AND THE RISE OF THE CONTEMPORARY RIGHT 138 (1999);
156. Second Amendment Foundation, in 2 GUNS IN AMERICAN SOCIETY: AN ENCYCLOPEDIA OF HISTORY, POLITICS, CULTURE AND THE LAW 527, 527-28 (Gregg Lee Carter ed., 2002) [hereinafter GUNS IN AMERICAN SOCIETY];
157. Active National Pro-Firearms Organizations, National Rifle Association - Institute for Legislative Action, http://www.nraila.org/Issues/ FactSheets/Read.aspx?ID=16 (last visited Oct. 5, 2008).
158. For a description of the activities of the Second Amendment Foundation, see SAF Fighting Good Fight for Constitutional Right To Keep and Bear Arms, CONSERVATIVE DIG., Oct. 1981, at 40, 40 (describing the media activities of the Foundation as created "to meet the need for an intellectual defense of freedom of gun ownership").
159. See Ronald Reagan, Ronald Reagan Champions Gun Ownership, GUNS & AMMO, Sept. 197S, at 34.
160. YAF played a key role in spearheading Reagan's drive for the presidency in 1976 and 1980.
161. See SCHNEIDER, supra note 80, at 161.
162. Reagan, supra note 81, at 34.
163. See supra notes 53-55 and accompanying text.
164. Reagan, supra note 81, at 35.
165. JOSEPH P. TARTARO, REVOLT AT CINCINNATI 39 (1981).
166. Id. at 27.
167. Id. at 19.
168. Id.
169. Id. at 21-22 (quoting the fundraising report by Oram International, Inc.).
170. Id. at 24;
171. see also id. at 18 (displaying "Revolutionary War 'Don't Tread on Me' flag as the emblem of a strong pro-gun political position").
172. Id. at 36.
173. Institute Reports: The Right To Keep and Bear Arms: An Analysis of the Second Amendment, AM. RIFLEMAN, Aug. 1977, at 37. A more circumspect account of the takeover appears in the July issue.
174. See NRA Staff, Concerned NRA Members Redirect Their Association, AM. RIFLEMAN, July 1977, at 16.
175. Martin Durham, Family, Morality and the New Right, 38 PARLIAMENTARY AFF. 180, 180 (1985).
176. On Viguerie's role in the Wallace campaign, see Alan Ehrehnalt, The "New Right" Movement Emerging in Washington, NASHUA TELEGRAPH, Oct. 28, 1976, at 23.
177. In beginning his direct mail operation with the donor lists of the Wallace campaign, Viguerie was building a New Right by mobilizing Americans who were estranged from the civil rights rulings of the Warren Court. Wallace was famous for leading white resistance to Brown. See Michael J. Klarman, Brown v. Board: 50 Years Later, HUMAN., Mar.-Apr. 2004, at 24, 28 ("Governor George Wallace of Alabama personified the post-Brown racial fanaticism of southern politics....Wallace declared in his [1962] inaugural address: '...[S]egregation now, segregation tomorrow, segregation forever.'");
178. see also DAN T. CARTER, FROM GEORGE WALLACE TO NEWT GINGRICH: RACE IN THE CONSERVATIVE COUNTERREVOLUTION 1963-1994, at 48 (1996) (quoting a radio ad for Wallace's 1970 gubernatorial campaign that observed: "Suppose your wife is driving home at 11 o'clock. She is stopped by a highway patrolman. He turns out to be black. Think about it....Elect George Wallace."). In his 1972 campaign for the presidency, Wallace expressed these themes in more muted terms, such as through as hostility to busing.
179. See Wallace's Showing in Primaries Kills Labor's Kingmaking Role, HARTFORD COURANT, June 7, 1972, at 14 (reporting that Wallace told workers "that stopping busing was more important than overtime, seniority or a union shop");
180. Tom Wicker, To Bus or Not To Bus, N.Y. TIMES, Feb. 17, 1972, at 37 ("[Wallace] entered the race, crying that a vote for him would be a vote against busing."). Viguerie continued to affiliate with racial conservatives estranged from the Warren Court after he left the Wallace campaign and began to organize the New Right.
181. See RUSS BELLANT, THE COORS CONNECTION: HOW COORS FAMILY PHILANTHROPY UNDERMINES DEMOCRATIC PLURALISM 16-17 (1991) (describing Viguerie's attendance at the "1976 convention of the American Independent Party (AIP) to seek a spot...on the national ticket. The AIP...was a coalition that included elements of the Ku Klux Klan, John Birchers..., and operatives of the Liberty Lobby").
182. Tim Wyngaard, On the GOP Front: New Breed Battles Old-Timers for Party Funds, EL PASO HERALD-POST, June 17, 1977, at D-5 (observing that Viguerie started with "the mailing list of the arch-conservative Young Americans for Freedom (YAF), for which he formerly worked," and "[i]n the next decade he collected and codified, cross-indexed and culled the names of 10 million American conservatives who would be willing to donate to right-wing causes on the basis of 'personalized' letters spewing from the computers"). Viguerie's clients built their own donor lists. "But they [couldn't] take the lists to another direct-mail firm. They [became] Viguerie's property as well."
183. Id.;
184. see also RICHARD A. VIGUERIE & DAVID FRANKE, AMERICA'S RIGHT TURN: HOW CONSERVATIVES USED NEW AND ALTERNATIVE MEDIA TO TAKE POWER 150 (2004) (recounting how "the hundreds of thousands of names of Wallace contributors [that Viguerie] amassed were later used to help conservative Republicans take over the South").
185. The New Right: A Special Report, CONSERVATIVE DIG., June 197g, at 9, 10.
186. Right On for the New Right, TIME, Oct. 3, 1977, at 24, 26 (internal quotation marks omitted).
187. See Mobilizing the Moral Majority, CONSERVATIVE DIG., Aug. 1979, at 14;
188. The ProFamily Movement: A Special Report, CONSERVATIVE DIG., May-June 1980, at 14.
189. For an account of the role the conservative strategists of the New Right played in forging a coalition of Protestants and Catholics aroused to protest secular humanism, the Equal Rights Amendment, and abortion, see Post & Siegel, Roe Rage, supra note 10, at 420-23.
190. Joe Scott, The GOA Connection, OAKLAND TRIB., Apr. 4, 1976, at 18.
191. The head of GOA was State Senator Bill Richardson of Sacramento, California, "a one-time field representative of the John Birch Society." ALAN CRAWFORD, THUNDER ON THE RIGHT: THE "NEW RIGHT" AND THE POLITICS OF RESENTMENT 33 (1980).
192. Paul Houston, Foes of Gun Control Press Fund Drives, L.A. TIMES, Apr. 25, 1976, at 1 (internal quotation marks omitted).
193. Id. (quoting solicitation letter signed by H.L. Richardson, founder of Gun Owners of America) (internal quotation marks omitted).
194. H.L. Richardson, Political Turn to the Right Would've Been Impossible Without Role of Direct Mail, CONSERVATIVE DIG., June 1981, at 23, 23.
195. Houston, supra note 101.
196. Id.;
197. see also CRAWFORD, supra note 100, at 67-69 (reporting that in 1975 Viguerie handled fundraising for the ILA, bringing in $5.8 million at a cost of $3.2 million and building the organization's list of contributors by 600,000 names, and observing that in the late 1970s, Viguerie raised $12 million for the NRA while also doing direct mail work for the Citizens Committee for the Right to Keep and Bear Arms and Gun Owners of America).
198. See supra section II.B;
199. see also GOSS, supra note 69, at 172 (describing the creation of NRA's Office of Legislative Affairs, which raised nearly $2 million in a year, and noting how "advocates dissatisfied with what they saw as the NRA's insufficiently hard-line stance created Gun Owners of America, which pulled the NRA in the direction of protecting its right flank"). Martin Durham describes the New Right strategy: The anti-gun-control National Rifle Association and the anti-abortion National Right to Life Committee were not so willing to give up their political independence, and the New Right was compelled to work with them as best it could. At the same time, it...encouraged small groups on the independent organisations' right - the Gun Owners of America in the first case, the Life Amendment Political Action Committee and the American Life Lobby in the second.
200. Durham, supra note 94, at 181.
201. REPUBLICAN NAT'L CONVENTION, REPUBLICAN PARTY PLATFORM OF 1972, available at http://www.presidency.ucsb.edu/ws/index.php?pid=25842.
202. REPUBLICAN NAT'L CONVENTION, REPUBLICAN PARTY PLATFORM OF 1976, available at http://www.presidency.ucsb.edu/ws/index.php?pid=25843.
203. See Wyngaard, supra note 96 (discussing role of direct mail in changing the shape of the Republican National Party).
204. GOSS, supra note 69, at 45-46.
205. See Quilici v. Village of Morton Grove, 464 U.S. 863 (1983) (mem.) (denying certiorari).
206. GOSS, supra note 69, at 162-65.
207. Id. at 46.
208. He's Mail Fundraising King, SYRACUSE HERALD- AM., Jan. 8, 1978, at 79
209. (explaining that Viguerie solicits money "to fight the Panama Canal treaties, abortion, gun control, [and] the Equal Rights Amendment" and that monies are "contributed to candidates like George Wallace, Sen. Jesse Helms, R-N.C., Sen. Orin [sic] Hatch, R-Utah, and Sen. Strom Thurmond, R-S.C.").
210. Viguerie boasts of having helped elect Orrin Hatch. See RICHARD A. VIGUERIE, THE NEW RIGHT: WE'RE READY TO LEAD 38, 60 (1981). Critics charged that Viguerie's committees made loans to Hatch's Senate campaign that together exceeded the limits set by campaign finance laws.
211. See Panel Reports Complaint on Hatch Contributions, SALT LAKE TRIB., Oct. 21, 1976, at 10A. Weyrich also takes credit for helping elect Hatch.
212. See Lee Edwards, Paul Weyrich: Conscience of New Right Fighting for Conservative Victory in '82, CONSERVATIVE DIG., July 1981, at 2, 4 (discussing how Weyrich's Committee for the Survival of a Free Congress (CSFC) helped elect Hatch in 1976).
213. See Right On for the New Right, supra note 98, at 24.
214. STAFF OF SUBCOMM. ON THE CONSTITUTION OF THE S. COMM. ON THE JUDICIARY, 97TH CONG., THE RIGHT TO KEEP AND BEAR ARMS vii (Comm. Print 1982) ("Immediately upon assuming chairmanship of the Subcommittee on the Constitution, I sponsored the report...[on] the right to keep and bear arms."). Hatch observed: We did not guess at the purpose of the British 1689 Declaration of Rights; we located the Journals of the House of Commons and private notes of the Declaration's sponsors, now dead for two centuries....We did not speculate as to the intent of the framers of the second amendment; we examined James Madison's drafts for it, his handwritten outlines of speeches upon the Bill of Rights....
215. Id. at vii-viii.
216. Id. at viii.
217. Pub. L. No. 99-308, 100 Stat. 449 (1986)
218. (codified at 18 U.S.C. §§921-929 (2006)).
219. Id.
220. § 1(b) (codified at 18 U.S.C. § 921 note).
221. See infra p. 220. See generally Steven M. Teles, Transformative Bureaucracy: Reagan's Lawyers and the Dynamics of Political Investment, Prepared for Studies in American Development (unpublished manuscript, on file with the Harvard Law School Library).
222. REPUBLICAN NAT'L CONVENTION, REPUBLICAN PARTY PLATFORM OF 1980, available at http://www.presidency.ucsb.edu/ws/index.php?pid=25844;
223. see Sheldon Goldman, Reagan's Second Term Judicial Appointments: The Battle at Midway, 70 JUDICATURE 324, 324-25 (1987).
224. Weyrich founded the conservative Heritage Foundation and the Free Congress Foundation with funds from Joseph Coors and Richard Scaife. By 1988, Scaife had given the Free Congress Foundation $7,014,000, making him the Foundations' top lifetime donor. BELLANT, supra note 95, at 83.
225. Under Weyrich's leadership, both organizations focused on judicial reform. See John Chamberlain, Moral Issues Not a Good Core for Political Coalitions, IRONWOOD DAILY GLOBE, Dec. 1, 1981, at 4 (discussing polling by Weyrich's Heritage Foundation in the spring of 1980 reporting that "two-thirds of the people would prefer to have state rather than federal judges decide such 'social issues as abortion, busing and voluntary prayer in the schools'" and explaining that "the New Right's Paul Weyrich has decided to lead off with a call for reform of our court system").
226. See generally A BLUEPRINT FOR JUDICIAL REFORM (Patrick B. McGuigan & Randall R. Rader eds., 1981) (collecting papers of a conference sponsored by the Free Congress Research and Education Foundation).
227. David M. O'Brien, Federal Judgeships in Retrospect, in THE REAGAN PRESIDENCY 327, 327 (W. Elliot Brownlee & Hugh Davis Graham eds., 2003);
228. see also Goldman, supra note 121, at 325.
229. For a history of originalism's construction in the Reagan administration, see JOHNATHAN O'NEILL, ORIGINALISM IN AMERICAN LAW AND POLITICS 111-32, 162-70 (2005).
230. The Center for Judicial Studies connected conservatives in the foundations, government, and the academy interested in developing constitutional theory for the New Right. See id. at 137, 148 (observing that Benchmark featured articles by James McClellan and Gary McDowell, who "became associate director of the Office of Public Affairs in the Justice Department in June 1985 and helped formulate Meese's speeches on originalism"). Gary McDowell's work at the Center for Judicial Studies was reportedly funded by the Olin Foundation and the Sarah Scaife Foundation.
231. See Media Transparency, Grants to Center for Judicial Studies, http://www.mediatransparency.org/recipientgrantsprint.php?recipientID=1056 (last visited Oct. 5, 2008).
232. For more on the Center for Judicial Studies' Benchmark magazine, see SIDNEY BLUMENTHAL, THE RISE OF THE COUNTER-ESTABLISHMENT 301-02 (1986);
233. Al Kamen & Howard Kurtz, Theorists on Right Find Fertile Ground: Conservative Legal Activists Exert Influence on Justice Department, WASH. POST, Aug. 9, 1985, at A1.
234. See Kamen & Kurtz, supra note 124 (reporting that conservative foundations "appear to have a particularly aggressive ally in Meese" and quoting the director of the "judicial-revision project" at the Free Congress Foundation describing the foundation's relation to the Justice Department, "We're part of the team....We're trying to influence the agenda. We provide some of the intellectual power.").
235. O'NEILL, supra note 124, at 156.
236. 358 U.S. 1 (1958).
237. Edwin Meese III, Perspectives on the Authoritativeness of Supreme Court Decision: The Law of the Constitution, 61 TUL. L. REV. 979, 989 (1987).
238. In challenging the Court's authority, Meese was invoking Lincoln's challenge to Dred Scott and implicitly, Raoul Berger's recent attack on the Warren and Burger Courts.
239. See RAOUL BERGER, GOVERNMENT BY JUDICIARY 363 (ist ed. 1977) (criticizing proponents of a "living Constitution");
240. id. at 367 (criticizing all those who "endeavored to discredit 'original intention,' to rid us of the 'dead hand of the past'");
241. id. at 370 (stating that "[i]f the Court may substitute its own meaning for that of the Framers it may...rewrite the Constitution without limit").
242. See sources cited supra note 68.
243. Cf. supra p. 210.
244. See Post & Siegel, Originalism As a Political Practice, supra note 10, at 549 ("To understand originalism's power at the dawn of the twenty-first century is to appreciate the subtle ways in which originalism connects constitutional law to a living political culture and provides its proponents a compelling language in which to seek constitutional change through adjudication and politics.");
245. Keith E. Whittington, The New Originalism, 2 GEO. J.L. & PUB. POL'Y 599, 601 (2004) ("[O]riginalism was a reactive theory motivated by substantive disagreement with the recent and then-current actions of the Warren and Burger Courts; originalism was largely developed as a mode of criticism of those actions.").
246. O'NEILL, supra note 124, at 126 ("[Raoul] Berger...regularly defended...the reservation of basic constitutional change for the Article V amendment process.");
247. see also infra note 137 (discussing an article by Justice Antonin Scalia written in 1989).
248. James McClellan, Kicking the Amendment Habit, BENCHMARK, Jan.-Feb. 1984, at 1, 2 ("[W]e should resist efforts to add amendments to our fundamental law to correct misinterpretations rendered by the Supreme Court. At the very least, such amendments tend to wink at judicial supremacy, and color the Court's usurpations with the tint of legitimacy.");
249. see also O'NEILL, supra note 124, at 148, 257 n.52. The New Right's assumption that constitutional change on the "social issues" agenda would come through legislative channels - statutes regulating the judiciary and Article V amendments - was visible in a conflict during the first year of Reagan's presidency.
250. See John Lofton Jr., Baker Urges Delay of Social Issues Legislative Agenda Until Next Year, CONSERVATIVE DIG., May 1981, at 2, 2-3 (reporting that the Senate would "delay until next year the so-called 'social issues' agenda - that is, legislation dealing with abortion, forced busing, voluntary school prayer, family protection, etc." - to give priority to the President's economic program, and characterizing the deferral as requiring postponement of "emotional issues and constitutional amendments").
251. McClellan, supra note 133, at 2.
252. Id. at 2-3.
253. James McClellan, Advertisement to Our Readers, BENCHMARK, July-Oct. 1984, at ii.
254. As Justice Scalia analyzed the question in 1989, judges should interpret the Constitution to enforce fidelity to "original values";
255. it was abandoning original values that required a constitutional amendment. See Scalia, supra note 13, at 862.
256. McClellan, supra note 133, at 2 (emphasis added).
257. David M. O'Brien, Op-Ed., Meese's Agenda for Ensuring the Reagan Legacy, L.A. TIMES, Sept. 28, 1986, at E3 (quoting Edwin Meese III, Attorney General) (internal quotation marks omitted);
258. see also Teles, supra note 120.
259. Press Release, Department of Justice, Markman New Head of OLP (1985), available at http://www.usdoj.gov/oip/foia-updates/Vol-VI-4/page1.htm.
260. STEVEN M. TELES, THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT 145 (2008).
261. Judge Scalia's Cheerleaders, N.Y. TIMES, July 23, 1986, at B6 (quoting Stephen Markman, who represented the Justice Department at judicial selection meetings in the White House) (internal quotation marks omitted).
262. In the same article, the Times also reported that the Federalist Society, founded in 1981, had $100,000 of its $400,000 budget in 1985 funded by the Scaife Foundation. Id.
263. See O'Brien, supra note 123, at 333-34 (describing the introduction of an "unprecedented screening process for potential judicial nominees" involving comparison of candidates' records in a computerized database and day-long interviews in which candidates were asked questions "about their views on abortion, affirmative action, and criminal justice").
264. TR. Goldman, The Flower of the Reagan Revolution, LEGAL TIMES, Aug. 1, 2005, at 40.
265. OFFICE OF LEGAL POLICY, U.S. DEP'T OF JUSTICE, ORIGINAL MEANING JURISPRUDENCE: A SOURCEBOOK (1987) [hereinafter OLP, SOURCEBOOK].
266. Id. at 101, 103-04, 139-50.
267. OFFICE OF LEGAL POLICY, U.S. DEP'T OF JUSTICE, GUIDELINES ON CONSTITUTIONAL LITIGATION 3 (1988) [hereinafter OLP, GUIDELINES] (" [Constitutional language should be construed as it was publicly understood at the time of its drafting and ratification and government attorneys should advance constitutional arguments based only on this 'original meaning.'").
268. OFFICE OF LEGAL POLICY, U.S. DEP'T OF JUSTICE, THE CONSTITUTION IN THE YEAR 2000: CHOICES AHEAD IN CONSTITUTIONAL INTERPRETATION (1988) [hereinafter OLP, CONSTITUTION IN THE YEAR 2000].
269. For a fuller account, see Dawn E. Johnsen, Ronald Reagan and the Rehnquist Court on Congressional Power: Presidential Influences on Constitutional Change, 78 IND. L.J. 363 (2003).
270. See OLP, CONSTITUTION IN THE YEAR 2000, supra note 148;
271. OLP, GUIDELINES, supra note 147, at 82 (identifying the "right of privacy cases, exemplified by Griswold v. Connecticut, 381 U.S. 479 (1965),"
272. which held unconstitutional a Connecticut statute criminalizing the use of birth control, and Roe v. Wade, 410 U.S. 113 (1973), which held that states could not prohibit abortion, as "examples of judicial creation of 'fundamental' rights not found in the Constitution");
273. id. at 86-87
274. ("Neither the search and seizure exclusionary rule nor the procedural rules for custodial interrogations established by Miranda v. Arizona, 384 U.S. 436 (1966)," rules that protect the rights of criminal defendants, have any "constitutional or statutory basis");
275. id. at 85-86 (arguing that "no establishment of religion was involved" in a Third Circuit case where a high school refused to allow students to use school facilities for prayer meetings);
276. OLP, SOURCEBOOK, supra note 145, at vi (listing the Sourcebook's disfavored cases "illustrating non-interpretivist jurisprudence").
277. OLP, GUIDELINES, supra note 147, at 10.
278. Kathryn Kahler, Vision of a Reformed Judiciary Unlikely To Materialize, DAILY INTELLI-GENCER/MONTGOMERY COUNTY REC., Jan. 20, 1988, at 11 (quoting Stephen Markman, assistant attorney general in the Office of Legal Policy) (internal quotation marks omitted).
279. Remarks at a Republican Campaign Rally in Mesquite, Texas, 2 PUB. PAPERS 1461, 1463 (Nov. 5, 1988);
280. see also Remarks at the Annual Members Banquet of the National Rifle Association in Phoenix, Arizona, 1 PUB. PAPERS 659, 660 (May 6, 1983) ("[T]he Constitution does not say that government shall decree the right to keep and bear arms. The Constitution says '. . . the right of the people to keep and bear Arms, shall not be infringed.'").
281. OLP, GUIDELINES, supra note 147, at 70.
282. See id. (describing careful "ideological screening" of Reagan's judicial nominees). At the time Justice Scalia penned his decision in Heller, almost all significant opinions written by federal judges in the late twentieth century that recognize or remark favorably upon an individual right to bear arms appear to have been written by judges whom President Reagan appointed. See infra note 234.
283. McClellan, supra note 133, at 2 (emphasis added).
284. For a volume that locates the Second Amendment in a survey of the "original meaning" and "current understanding of the Bill of Rights," see THE BILL OF RIGHTS: ORIGINAL MEANING AND CURRENT UNDERSTANDING (Eugene W. Hickock, Jr., ed., 1991) (compiling papers from eight separate conferences conducted by the Center for Judicial Studies between 1985 and 1987).
285. As of Oct. 5, 2008, a Hein Online title search for "Second Amendment," "bear arms," or "gun control" in the Law Journal Library database resulted in 8 publications before 1950, 1 between 1950 and 1959, 8 between 1960 and 1969, 21 between 1970 and 1979, 59 between 1980 and 1989, 162 between 1990 and 1999, and 149 between 2000 and the present.
286. See, e.g., Robert A. Sprecher, The Lost Amendment, 51 A.B.A. J. 554, 554 (1965) (arguing that because of "[t]he wisdom of the Founding Fathers . . . , the framework of the original document has proved durable enough to encompass great flexibility through the device of judicial interpretation");
287. see also James A. McClure, Firearms and Federalism, 7 IDAHO L. REV. 197, 205 (1970) ("Since the genius of the nation's founders has been the basis of our system of checks and balances and federal structure, scholars are continually attempting to interpret their words.").
288. See, e.g., Bernard J. Bordenet, The Right To Possess Arms: The Intent of the Framers of the Second Amendment, 21 UWLA L. REV. 1, 30 (1990) ("The only proper and logical approach is to interpret the Constitution as its drafters and adopters intended. The Constitution contains provisions for amending it. Amendment through judicial fiat is both unconstitutional and illegal." (footnote omitted));
289. Robert Dowlut, The Right to Arms: Does the Constitution or the Predilection of Judges Reign?, 36 OKLA. L. REV. 65, 75 (1983) ("The Americans desired a written constitution, for it was felt a constitution should contain 'a fixed and definite body of principles.'"
290. (quoting 1 R. CURRENT ET AL., AMERICAN HISTORY: A SURVEY 111 (3d ed. 1971))).
291. In the early 1980s, the NRA lobbyist Neal Knox got in a conflict with Reagan's advisor Edwin Meese over plans to reorganize the Bureau of Alcohol, Tobacco, and Firearms; Knox was thereafter dismissed, in what appears to have been an effort to smooth relations with the Administration. See sources cited infra note 188. For a gun rights critique of Reagan's commitment to gun rights, see Keep and Bear Arms, What Do You Think of This Politician?: A Follow-up to the KABA Poll (June 14, 2003), http://www.keepandbeararms.com/ NewsArchives/XcNewsPlus.asp?cmd=view&articleid=2955.
292. The MacNeil/Lehrer NewsHour (PBS television broadcast Dec. 16, 1991) (quoting former Chief Justice Warren Burger);
293. see also Joan Biskupic, Guns: A Second (Amendment) Look, WASH. POST, May 10, 1995, at A20.
294. Erwin N. Griswold, Phantom Second Amendment "Rights," WASH. POST, Nov. 4, 1990, at C7.
295. Claudia Luther, Bork Says State Gun Laws Constitutional, L.A. TIMES, Mar. 15, 1989, at B5;
296. see also Miriam Bensimhorn, Advocates: Point and Counterpoint, Laurence Tribe and Robert Bork Debate the Framers' Spacious Terms, LIFE, Fall 1991 (Special Issue), at 96, 98 ("[T]he National Rifle Association is always arguing that the Second Amendment determines the right to bear arms. But I think it really is people's right to bear arms in a militia. The NRA thinks that it protects their right to have Teflon-coated bullets. But that's not the original understanding." (quoting Robert Bork)).
297. Carl T. Bogus, The History and Politics of Second Amendment Scholarship: A Primer, in THE SECOND AMENDMENT IN LAW AND HISTORY 1, 4 (Carl T. Bogus ed., 2000).
298. Sixteen were written or co-written by Stephen P. Halbrook, Robert Dowlut, Richard Gardiner, David Hardy, or David Caplan, all current or former lawyers for the NRA. Robert J. Spitzer, Lost and Found: Researching the Second Amendment, 76 CHI-KENT L. REV. 349, 379 n.157, app. at 387-92 (2000).
299. Another was written by Alan Gottlieb, founder of the Citizens Committee for the Right to Keep and Bear Arms and the Second Amendment Foundation, GUNS IN AMERICAN SOCIETY, supra note 80, at 527, and two more were written by Don Kates, a Second Amendment Foundation lawyer, see Quilici v. Second Amendment Foundation, 769 F.2d 414, 415 (7th Cir. 1985).
300. Spitzer, supra, app. at 389-917.
301. Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637 (1989).
302. Akhil Reed Amar, The Bill of Rights As a Constitution, 100 YALE L.J. 1131 (1991).
303. Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992).
304. For discussion of this phase of scholarship, see Bogus, supra note 164, at 1, 4-13.
305. See, e.g., Amar, supra note 166, at 1163 ("[T]he people's right to alter or abolish tyrannous government invariably required a popular appeal to arms.");
306. Levinson, supra note 165, at 646-51;
307. id. at 651 ("[T]he citizenry itself can be viewed as an important third component of republican governance insofar as it stands ready to defend republican liberty against the depredations of [the federal government and the states], however futile that might appear as a practical matter.").
308. Amar, supra note 167, at 1262 (describing the transformation of the Second Amendment after Reconstruction to "an essentially 'civil' right").
309. Levinson, supra note 165, at 650-51.
310. See Bogus, supra note 164, at 6-7. "The N.R.A. was so delighted by Levinson's unexpected article that the group reprinted thousands of copies, which prompted a wave of fan mail for the professor."
311. Andrea Sachs, Why the Second Amendment Is a Loser in Court, TIME, May 29, 1995, at 22, 22;
312. see also Letter from John Ashcroft, U.S. Att'y Gen., to James Jay Baker, Exec. Dir. of NRA (May 17, 2001), available at http://www.nraila.org/images/Ashcroft.pdf (citing Levinson, as well as Amar, van Alstyne, and Kates, to support an individual rights interpretation of the Second Amendment).
313. Between 1987 and 1994, the firearms homicide rate rose by forty percent and gun-related robberies by nearly thirty percent, GOSS, supra note 69, at 46, and the media intensively covered recurrent mass shootings, see id.
314. 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.
315. See GOSS, supra note 69, at 44.
316. Id. at 45-46.
317. Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536 (1993) (codified at 18 U.S.C. §§ 921-922).
318. GOSS, supra note 69, at 177.
319. Public Safety and Recreational Firearms Use Protection Act, Pub. L. No. 103-322, 108 Stat. 1796 (1994).
320. See Neal Knox, Mr. Newt's "Second Amendment Strategy," AM. RIFLEMAN, Mar. 1995, at 14, 14 (recounting promise of Republican leadership to attempt to repeal the assault weapons ban as part of the "Contract with America").
321. Cf. DECONDE, supra note 47, at 255 (noting that in August of 1994, "the Republican National Committee threatened to condemn and deny campaign funds to any party representatives who voted for the ban on assault weapons," but that party members nonetheless broke ranks to enact the ban).
322. David S. Broder, A Historic Republican Triumph, WASH. POST, Nov. 9, 1994, at A1, A14;
323. see also Jeffrey H. Birnbaum, Under the Gun, FORTUNE, Dec. 6, 1999, at 211, 214 (reporting that the NRA "played a major role in the surprising Republican takeover of the House of Representatives in 1994," helping defeat "such powerful Democrats as Speaker Thomas Foley. . . and Congressman Jack Brooks . . . , chairman of the House Judiciary Committee[,]. . . because they supported the assault weapons ban," and reporting President Clinton's observation that "[t]he NRA is the reason the Republicans control the House").
324. Michael Isikoff et al., Of Tobacco, Torts and Tusks, NEWSWEEK, Nov. 28, 1994, at 30, 30.
325. Knox, supra note 180, at 14 (quoting Newt Gingrich's response to President Clinton's 1995 State of the Union speech) (internal quotation marks omitted). The budget for the ILA increased from $17.7 million in 1990 to $28.3 million in 1994.
326. Fox Butterfield, Aggressive Strategy by N.R.A. Has Left Its Finances Reeling, N.Y. TIMES, June 26, 1995, at A1.
327. See Broder, supra note 182, at A1.
328. NEWT GINGRICH, TO RENEW AMERICA 202 (1995).
329. Id. at 203.
330. See Paul Taylor, Chief NRA Lobbyist's Ouster Seen, Triggered by Opposition to Meese, WASH. POST, April 17, 1982, at A4 (recounting Neal Knox's opposition to Meese's plan to transfer responsibilities of the Bureau of Alcohol, Tobacco, and Firearms to the Secret Service);
331. see also David Brock, Wayne's World, AM. SPECTATOR, May 1997, at 36, 39 (reporting that "Ed Meese told Harlon [Carter], 'Don't ever send me this man Knox to see me again.'" (quoting Warren Cassidy, ILA director) (internal quotation marks omitted)).
332. Butterfield, supra note 184, at A12.
333. See id.
334. Charles M. Sennott, NRA Becomes Militias' Beacon, BOSTON GLOBE, Aug. 13, 1995, at 1 (quoting Tanya Metaksa) (internal quotation marks omitted);
335. see also Birnbaum, supra note 182.
336. Sennott, supra note 191, at 15 (quoting NRA's Civilian Militia Statement of Nov. 10, 1994) (internal quotation marks omitted).
337. DECONDE, supra note 47, at 257.
338. Id. at 258-59.
339. For an in-depth analysis of the militia movement's "theory of the Second Amendment," see DAVID C. WILLIAMS, THE MYTHIC MEANINGS OF THE SECOND AMENDMENT TAMING POLITICAL VIOLENCE IN A C ONSTITUTIONAL REPUBLIC 191-219 (2003).
340. See also LANE CROTHERS, RAGE ON THE RIGHT. THE AMERICAN MILITIA MOVEMENT FROM RUBY RIDGE TO HOMELAND SECURITY 25-35 (2003).
341. MICHELE SWENSON, DEMOCRACY UNDER ASSAULT THEOPOLITICS, INCIVILITY AND VIOLENCE ON THE RIGHT 135 (2004)
342. SEE MORRIS DEES WITH JAMES CORCORAN, GATHERING STORM: AMERICA'S MILITIA THREAT (1996);
343. SWENSON, supra note 196, at 130-51.
344. See WILLIAMS, supra note 195, at 217-18.
345. See RICHARD FELDMAN, RICOCHET CONFESSIONS OF A GUN LOBBYIST 234-35 (2008) ("Among the more disturbing aspects of the militia movement were the anti-Semitic and white supremacist nature of several groups. . . . The BATF's gun-grabbing, black-clad storm troopers were seen as the foot soldiers of the [Zionist Occupation Government].");
346. Walter Goodman, Militia Family Life, Before It Goes Undercover, N.Y. TIMES, Sept. 3, 1997, at C16 (quoting members of the Rocky Mountain Militia saying "We should celebrate the day [Martin Luther King, Jr.] got shot" and "[h]ave a white Christmas and a Jew-free New Year").
347. Charles M. Sennott, Mainstream, Fringe Cross Paths at Gun Shows, BOSTON GLOBE, Aug. 13, 1995, at 14;
348. see also CROTHERS, supra note 195, at 123-44;
349. WILLIAMS, supra note 195, at 1-2.
350. One must read The Turner Diaries to appreciate how central race is to its gun-control dystopia. See generally ANDREW MACDONALD, THE TURNER DIARIES (Barricade Books 1996) (1978).
351. LOU MICHEL & DAN HERBECK, AMERICAN TERRORIST. TIMOTHY MCVEIGH & THE OKLAHOMA CITY BOMBING 108 (2001) (account of bombing based on interviews with McVeigh during the period of his incarceration);
352. see also id. at 39 (recounting influence on McVeigh of The Turner Diaries).
353. Id. at 226-28 (recounting that McVeigh chose April 19 as the date of the Oklahoma City bombing because it was the 220th anniversary of the Battle of Lexington and Concord that began the American Revolution and because it was the second anniversary of the end of the Waco siege, and that McVeigh prepared for his capture by taking with him to the bombing a collection of documents including a pamphlet on the militia movements of 1775, a copy of the Declaration of Independence, and a quote from the protagonist of The Turner Diaries).
354. See Letter from George Bush to National Rifle Association (May 3, 1995), in N.Y. TIMES, May 11, 1995, at B10.
355. John Mintz, NRA Members Take Aim at Critics, WASH. POST, May 20, 1995, at A1, A12.
356. Mack referred to the militia movement as "the civil rights movement of the '90s." Militia Movement Seeks Allies With Guns, Badges, CHRISTIAN SCI. MONITOR, Apr. 15, 1996, at 11 (quoting Richard Mack) (internal quotation marks omitted). This was a common refrain among militia members.
357. See, e.g., Militia Movement, USA TODAY, Mar. 12, 1996, at 3A;
358. Talk Back Live (CNN television broadcast Apr. 5, 1996).
359. Sennott, supra note 191 (quoting Richard Mack) (internal quotation marks omitted). Mack later distanced himself from the militias, "den[ying]. . . reports in the Los Angeles Times and The Boston Globe that he . . . raised an armed citizen posse in Arizona to help enforce the law. He . . . publicly acknowledged that he organized a posse, but [claimed] that the only enforcement duties it ever took on were directing traffic."
360. Dan Harrie, Libertarian Throws His Hat into Utah's Governor Race, SALT LAKE TRIB., Nov. 7, 2003, at B3.
361. 521 U.S. 898 (1997).
362. Id. at 914.
363. Ian Brodie, Foot Soldiers Desert the Gun Lobby, TIMES (London), Apr. 1, 1996.
364. RAYMOND, supra note 57, at 262-63.
365. For Knox's account of the takeover, see Neal Knox, The Mutiny at NRA, URBAN ARMORY, Jan. 1, 1999, http://www.urban-armory. com/nealknox010199.htm.
366. RAYMOND, supra note 57, at 265 (internal quotation marks omitted).
367. James N. Thurman, NRA's New Aim: To Soften Its Edges and Re-enlist Moderates, CHRISTIAN SCI. MONITOR, June 10, 1998, at 5.
368. For Neal Knox's account of the positions Heston was taking in the media in the period he was seeking control of the NRA, see Knox, supra note 210 (discussing Heston's statements in his various TV and radio appearances).
369. See also Robert W. Lee, Heston, for the Record, NEW AM., Apr. 13, 1998, at 15 (reporting Heston's comments in radio interview about accepting the Brady Act and his intention "to get 'the right-wing folks off the [NRA] board and out of the picture'").
370. The National Rifle Association Introduces American Guardian, AM. RIFLEMAN, Aug. 1997, at 11.
371. Charlton Heston, The President's Column, AM. RIFLEMAN, Feb. 2000, at 12, 12 ("Don't let the right to keep and bear arms be forsaken or forgotten. Share these vital lessons, virtues and values with the young people in your life.").
372. See, e.g., Brannon P. Denning, Palladium of Liberty? Causes and Consequences of the Federalization of State Militias in the Twentieth Century, 21 OKLA. CITY U. L. REV. 191, 244 (1996) ("Most regulations of firearms would remain in place, as would state prohibitions against paramilitary activity, since those are not aimed at an individual 's right to bear arms. . . . [T]he exercise of Second Amendment rights would be dominated neither by the state (as is true under a collectivist interpretation of the Second Amendment) nor by wholly private entities (as urged by many in the neomilitia movement).");
373. Thomas B. McAffee, Constitutional Limits on Regulating Private Militia Groups, 58 MONT. L. REV. 45, 77 (1997) ("[T]he Second Amendment gives no protection to private armies waiting for an opportunity to confront the larger community with force.");
374. cf. Laurence H. Tribe & Akhil Reed Amar, Op-Ed., Well-Regulated Militias, and More, N.Y. TIMES, Oct. 28, 1999, at A31 ("The fact is, almost none of the proposed state or Federal weapons regulations appears to come close to offending the Second Amendment's core right to self-protection. The right to bear arms is certainly subject to reasonable
375. CHARLTON HESTON, THE COURAGE TO BE FREE 164, 168 (2000) (remarks before the 125th annual meeting of the NRA, March 30, 1996).
376. For another compilation of Heston's speeches, see Varmint Al's Gun Rights & Politics, http://www.varmintal.eom/apoli.htm#Heston(last visited Oct. 5, 2008).
377. HESTON, supra note 216, at 168.
378. Charlton Heston, First Vice President, Nat'l Rifle Assoc., Address at the Free Congress Foundation's 20th Anniversary Gala (Dec. 7, 1997) (alteration in original), available at http://www.vpc.org/nrainfo/speech.html.
379. Id.
380. Id.
381. Id. (first alteration in original).
382. Id.
383. Id.
384. Although "culture war" terminology has been in use since the German Kulturkampf in the 1870S, it reemerged as a way of talking about contemporary American society in 1987 with the publication of Cultural Conservatism: Toward a New National Agenda, a survey commissioned by Paul Weyrich that advocated that conservatives take up a culture war, arguing that conservatives would be much more successful if they mobilized around social rather than economic issues. FREE CONGRESS RESEARCH & EDUC FOUND., CULTURAL CONSERVATISM: TOWARD A NEW NATIONAL AGENDA 8-9 (1987);
385. see also JAMES DAVISON HUNTER, CULTURE WARS: THE STRUGGLE TO DEFINE AMERICA 173 (1991) (stating that five areas in which culture war rages most intensely are the family, education, the popular media, law, and electoral politics).
386. The culture war hit the mainstream with Patrick Buchanan's speech at the 1992 Republican National Convention, when he declared the '92 election a "cultural war ... for the soul of America," in which "Clinton and Clinton are on the other side, and George Bush is on our side." Patrick J. Buchanan, Speech at the 1992 Republican National Convention (Aug. 17, 1992), available at http://www.buchanan.org/pa-92-0817-rnc.html. Buchanan's war was a moral one - to save "God's country" from "radical feminism," from "abortion on demand, a litmus test for the Supreme Court, homosexual rights, discrimination against religious schools, women in combat."
387. Id. Despite Paul Weyrich's declaration in 1999 that religious conservatives had lost the culture war, see Dale McConkey, Whither Hunter's Culture War? Shifts in Evangelical Morality, 1988-1998, 62 SOC. RELIGION 149, 149 (2001), the 2004 election saw its resurgence, with "the left and the right mobilizing furiously around those hot-button social issues,"
388. Robin Toner, Below the Campaign Radar, a Values War, N.Y. TIMES, Apr. 17, 2004, at A10;
389. see also Robin Toner, The Nation: To the Barricades, N.Y. TIMES, Feb. 29, 2004, at WK1.
390. See, for example, the speeches collected in the appendix of HESTON, supra note 216. See also NRA: "Armed with Pride," AM. RIFLEMAN, Mar. 1998, at 30, 31, 33 (interview with Charlton Heston and Wayne LaPierre) (Heston, speaking of a "cultural war," urges NRA members to "feel proud again" and warns them "[d]on't run for cover when the cultural cannons roar. Remember who you are and what you believe, and . . . stand up and speak out.").
391. See TruthOrFiction.com, Charlton Heston's Speech at Harvard Law School, http://www.truthorfiction.com/rumors/h/heston-harvard.htm (last visited Oct. 5, 2008).
392. Charlton Heston, Winning the Culture War, Address at Harvard Law School (Feb. 16, 1999), available at http://www.varmintal.com/heston3.htm.
393. Id.
394. Id.
395. Although not every advocate invoking culture war references guns, gun advocates often invoke the culture war - in terms that, like Heston's, directly or indirectly raise racial concerns. See Wayne LaPierre, Executive Vice President, Nat'l Rifle Assoc., Speech Before the NRA Annual Meeting in Charlotte, N.C. (May 20, 2000), available at http://www.nra.org/Speech. aspx?id=6032 ("And the dirty little secret is [criminals are] overwhelmingly black and hispanic. But everybody's so scared of being called a racist they won't admit the level of killing among non-white teenaged gangbangers."); see also Paul Blackman, The Federal Factoid Factory on Firearms and Violence: A Review of CDC Research and Politics, 7 J. ON FIREARMS & PUB. POL'Y 21, 30 (1995) (arguing that violence "is epidemic only among young blacks and Hispanics").
396. Blackman, a research coordinator for the Institute for Legislative Action of the NRA, later argues that "studies of homicide victims," who he has earlier identified as largely people of color, "suggest they are frequently criminals themselves and/or drug abusers. It is quite possible that their deaths, in terms of economic consequences to society, are net gains." Id. at 51-52;
397. see also infra note 231 (lecture by assistant counsel of the NRA on guns and culture).
398. Addressing the Conservative Political Action Conference in 1997, Heston invoked '"50svintage movies, news clippings, . . . TV shows like Beaver and Lucy and Father Knows Best. . . portraying traditional family units, cops who're on your side, clergy who aren't kooky, safe schools, certain punishment, manageable conflict," and urged: America yearns to be true to itself again, to return to that warm fireside of common sense and common values. Remember how we once felt about our safety, our schools, our police, our employers, our media, our parents, our neighbors? Remember when we trusted the federal government to do the right thing? Today only one in four of us does.
399. .... Americans want to be American again. Charlton Heston, Be Yourselves, O Americans, Remarks Before the Conservative Political Action Conference (Jan. 25, 1997), in HESTON, supra note 216, 170, 172;
400. see also James H. Warner, Assistant Gen. Counsel, Nat'l Rifle Assoc, Heritage Lecture: Guns, Crime, and the Culture War 6-7 (July 2, 1992), available at http://www.heritage.org/Research/Crime/upload/92266-1.pdf ("Guns do not get young girls pregnant. Guns do not create drug addiction. Guns did not create a welfare system which traps young women in dependency and keeps them in its thrall. Guns do not create music which glorifies hatred. Guns do not teach young children that they are not part of America, and that they have no share in its culture. Guns do not cause people to urinate in the halls nor to defecate in the stairwells of public housing projects. . . . But each of these conditions can be traced back to the enemies of our culture .... There is no reason why the streets of Washington, D.C., could not be as safe as the streets of Lyndonville, Vermont, or Bismarck, North Dakota. But this will not happen until all Americans are assimilated into one country with one, common culture.").
401. Antonin Scalia, Constitutional Interpretation the Old Fashioned Way (Mar. 14, 2005), available at http://www.cfif.org/htdocs/freedomline/current/ guest-commentary/scalia-constitutional-speech.htm.
402. See Siegel, Constitutional Culture, supra note 10, at 1327 (employing "the framework of constitutional culture to analyze the ways mobilized citizens influence officials who enforce the Constitution" and showing "how constitutional culture supplies the understandings of role and the practices of argument through which citizens and officials can propose new ways of enacting the society's defining commitments. . . . Constitutional culture preserves and perpetually destabilizes the distinction between politics and law.").
403. See Heller, 128 S. Ct. 2783 (Scalia, J.); Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007) (Silberman, J.) (holding D.C.'s handgun ban unconstitutional under the Second Amendment); United States v. Emerson, 270 F.3d 203, 232 (5th Cir. 2001) (Garwood, J.) ("The plain meaning of the right of the people to keep arms is that it is an individual, rather than a collective, right and is not limited to keeping arms while engaged in active military service or as a member of a select militia such as the National Guard.");
404. see also Printz v. United States, 521 U.S. 898 (1997) (Scalia, J.) (upholding NRA claims that background-check provisions temporarily imposed by the Brady Bill amounted to federal commandeering of local law enforcement, contrary to the original understanding);
405. Silveira v. Lockyer, 328 F.3d 567, 569-70 (9th Cir. 2003) (Kozinski, J., dissenting from denial of rehearing en banc);
406. Koog v. United States, 79 F.3d 452 (5th Cir. 1996) (Jolly, J.) (holding unconstitutional the provision of the Brady Bill held unconstitutional in Printz);
407. United States v. Lopez, 2 F.3d 1342, 1345, 1364 n.46 (5th Cir. 1993) (Garwood, J.) (characterizing in dicta the Second Amendment as "something of a brooding omnipresence" and noting that "some applications" of the statute at issue "might raise Second Amendment concerns.");
408. Printz v. United States, 854 F. Supp. 1503 (D. Mont. 1994) (Lovell, J.). A prominent exception is Justice Thomas, appointed by President George H.W. Bush. See Printz, 521 U.S. at 938 n.2 (Thomas, J., concurring) ("Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the 'right to keep and bear arms' is, as the Amendment's text suggests, a personal right.").
409. See Scalia, supra note 232.
410. See id. ("You either tell your judges, 'Look, this is a law, like all laws, give it the meaning it had when it was adopted.' Or, you tell your judges, 'Govern us.'").
411. Cf. Jonathan Riehl, The Federalist Society and Movement Conservatism: How a Fractious Coalition on the Right Is Changing Constitutional Law and the Way We Talk and Think About It 254 (2007) (unpublished thesis, University of North Carolina at Chapel Hill) (interviewing Justice Scalia) ("'I still consider myself a teacher. That's the main reason I write my dissents,' [Justice Scalia] said. 'I think the main point of the dissent is perhaps to try to change the future, and that will occur not by persuading my colleagues, who have made their mind up, but by persuading the next generation.'").
412. Romer v. Evans, 517 U.S. 620, 652 (1996) (Scalia, J., dissenting); id. at 636 ("The Court has mistaken a Kulturkampf for a fit of spite.").
413. See supra p. 213.
414. See supra note 224 and accompanying text (discussing Buchanan's cultural war speech).
415. Shortly after joining the Court, Justice Scalia denounced its decision upholding affirmative action in the promotion of a road dispatcher, lamenting that: [T]he only losers in the process are the Johnsons of the country, for whom Title VII has been not merely repealed but actually inverted. The irony is that these individuals - predominantly unknown, unaffluent, unorganized - suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent. Johnson v. Transp. Agency, 480 U.S. 616, 677 (1987) (Scalia, J., dissenting). When the Supreme Court required the Virginia Military Institute to admit women, Justice Scalia elegiacally warned of the threat to gender roles the decision posed, including in his dissent the full text of the school's traditional "Code of a Gentleman." See United States v. Virginia, 518 U.S. 515, 603 (1996) (Scalia, J., dissenting). When the Court reaffirmed its decision in Miranda, Justice Scalia denounced the Court for attempting "to write a prophylactic, extraconstitutional Constitution, binding on Congress and the States. . . . This is not the system that was established by the Framers." Dickerson v. United States, 530 U.S. 428, 461, 465 (2000) (Scalia, J., dissenting).
416. Lawrence v. Texas, 539 U.S. 558, 602-03 (2003) (Scalia, J., dissenting).
417. See also Printz v. United States, 521 U.S. 898 (1997) (upholding NRA claims that background-check provisions temporarily imposed by Brady Bill amounted to federal commandeering of local law enforcement, contrary to the original understanding).
418. See supra note 137.
419. Heller, 128 S. Ct. at 2821.
420. See supra pp. 208-09 (quoting Harlon Carter in 1970s);
421. supra p. 210 (quoting Ronald Reagan in 1975);
422. supra p. 232 (quoting Charlton Heston in 1990s);
423. see also supra p. 233 (same).
424. Reagan, supra note 81.
425. See supra note 116 and accompanying text.
426. See supra section U.C.
427. A Hein Online search for the terms "operative," "prefatory," and "second amendment" suggests that Nelson Lund was the first academic to introduce this terminology into the Second Amendment literature. See Nelson Lund, The Past and Future of the Individual's Right to Arms, 31 GA. L. REV. I (1996). Nelson Lund is the Patrick Henry Professor of Constitutional Law and the Second Amendment at the George Mason University School of Law. This position was created thanks to a one million dollar commitment to GMU School of Law by the National Rifle Association Foundation announced in 2003. Press Release, $1 Million Endows Professorship at George Mason University (Jan. 28, 2003), available at http://eagle.gmu.edu/newsroom/display.php?rid= 399&keywords=. Justice Scalia relies on the distinction between "prefatory" and "operative" in describing the relationship of the amendment's first and second clause.
428. See, e.g., Heller, 128 S. Ct. at 2789 ("The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause.").
429. See Heller, 128 S. Ct. at 2798 (observing of the English Bill of Rights provision guarding against disarmament of Protestants, "[t]his right has long been understood to be the predecessor to our Second Amendment. It was clearly an individual right, having nothing whatever to do with service in a militia.") (citations omitted).
430. But see id. at 2837-38 & n.30 (Stevens, J., dissenting) (objecting to majority's claim that the provision of the English Bill of Rights guaranteeing arms for Protestants is appropriately understood as a predecessor to the Second Amendment).
431. For historical accounts of the Second Amendment that emphasize its republican pedigree, see AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 324 (2005) (observing that "Founding history confirms a republican reading of the Second Amendment, whose framers generally envisioned Minutemen bearing guns, not Daniel Boone gunning bears," and noting that a military usage of arms similarly appears in state constitutions and the English Bill of Rights of 1689);
432. SAUL CORNELL, A WELL-REGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGINS OF GUN CONTROL IN AMERICA (2006);
433. and Jack N. Rakove, The Second Amendment: The Highest Stage of Originalism, 76 CHI.-KENT L. REV. 103 (2000).
434. See also Brief of Amici Curiae Jack N. Rakove, Saul Cornell, David T. Knig, William J. Novak, Lois G. Schwoerer et al. in Support of Petitioners, Heller, 128 S. Ct. 2783 (2008) (No. 07-290), 2008 WL 157183.
435. Historians including Jack Rakove and Saul Cornell emphasize that the Second Amendment was responsive, not to the need for private self-defense, but rather to a deep fear of a standing army and the debate over how control over militias would be allocated between the federal and state governments. Id. Indeed, the first laws resembling contemporary gun control were not passed until after the War of 1812, well after ratification.
436. See CORNELL, supra, at 142.
437. See supra sections ILA and ILD;
438. cf. Dan M. Kahan & Donald Braman, More Statistics, Less Persuasion: A Cultural Theory of Gun-Risk Perceptions, 151 U. PA. L. REV. 1291, 1293-94 (2003) ("As one southern Democratic senator recently put it, the gun debate is 'about values' - 'about who you are and who you aren't.' Or in the even more pithy formulation of another group of politically minded commentators, 'It's the Culture, Stupid!'") (footnotes omitted).
439. See supra sections II.C and II.D.
440. See THOMAS M. KECK, THE MOST ACTIVIST SUPREME COURT IN HISTORY: THE ROAD TO MODERN JUDICIAL CONSERVATISM 7 (2004) (presenting a political history of "the emergence of conservative activism" on the Rehnquist Court);
441. Keith E. Whittington, The New Originalism, 2 GEO. J.L. & PUB. POL'Y 599, 608-09 (2004) (distinguishing traditional judicial restraint from a "new originalism" that while emphasizing "the limited authority of the judicial role in the constitutional system . . . may often require the active exercise of the power of judicial review in order to keep faith with the principled commitments of the founding.").
442. See BILL CLINTON, MY LIFE 630 (2004) ("After the [1994 midterm] election I had to face the fact that the law-enforcement groups and other supporters of responsible gun legislation, though they represented the majority of Americans, simply could not protect their friends in Congress from the NRA. The gun lobby outspent, outorganized, outfought, and outdemagogued them.");
443. FELDMAN, supra note 199, at 229 (describing the NRA's successful campaign to unseat Jack Brooks, "the longest serving member of the House" at the time, as "payback for Jack's vote for the crime bill that contained the assault weapons ban," despite the fact that Brooks had been "one of the NRA's oldest and closest congressional allies");
444. Noam N. Levey, NRA's Political Clout Is Waning, L.A. TIMES, June 14, 2008, at A1. For polling data,
445. see infra notes 256-257.
446. See Joan Biskupic, Do You Have a Legal Right to Own a Gun?, USA TODAY, Feb. 27, 2008, at 1A ("Nearly three out of four Americans -73% -believe the Second Amendment spells out an individual right to own a firearm . . . ."); ICR Survey Research Group Poll, Aug. 15-19, 1997, The Roper Center at the University of Connecticut [hereinafter Roper Center Database], study no. USICR1997-933M, available at LEXIS, News Library, RPOLL file (reporting that sixty-eight percent of respondents believed that the Second Amendment "guarantees individuals the right to own guns").
447. National majorities have opposed a handgun ban since the 1970s, see Gallup's Pulse of Democracy: Gun Laws, Gallup, http://www.gallup.com/poll/ 1645/Guns.aspx (last visited Oct. 5, 2008), but a majority of Americans, and even President Bush, support an assault weapons ban.
448. See Senate Defeats Gun Liability Bill, 60 CONG. Q. ALMANAC 12-13, 12-14 (2004) (reporting that the House had passed a bill to rescind the handgun ban in Washington, D.C., while "White House officials had signaled President Bush's support for an extension of the [assault weapons] ban");
449. Assault Weapons Ban Works: Plug Holes and Let Law Live, Editorial, USA TODAY, Sept. 8, 2004, at 14A, available at http://www.usatoday.com/news/opinion/2004-09-07-assaultweapons-ourview-x.htm ("A University of Pennsylvania National Annenberg Election Survey in April found that 71% of respondents, including 64% of those in households with guns, support a renewal of the [assault weapons] ban.");
450. Los Angeles Times Poll, Mar. 16-17, 1989, Roper Center Database, supra note 256, study no. USLAT1989-177 (reporting that fifty-nine percent of those polled believed that "[i]n the case of semi-automatic assault rifles ... the interests of public safety outweigh" the Second Amendment).
451. See supra Part I.
452. See, e.g., Heller, 128 S. Ct. at 2801-02 (arguing that the Second Amendment was codified to "assure the existence of a 'citizens' militia' as a safeguard against tyranny");
453. id. at 2840 (Stevens, J., dissenting) (describing Justice Story's explanation of "the virtues of the militia as a bulwark against tyranny");
454. see also supra note 39 and accompanying text.
455. See Post & Siegel, Originalism as a Political Practice, supra note 10;
456. Post & Siegel, Roe Rage, supra note 10.
457. There are a variety of constraints shaping Heller, from the historical evidence over which a divided Court argued to the appointments process that produced the divided Court.
458. See Siegel, Constitutional Culture, supra note 10, at 1330-31 ("As movement and counter-movement struggle to persuade (or recruit) uncommitted members of the public, each movement is forced to take account of the other's arguments, and in time may even begin to incorporate aspects of the other's argument into its own claims .... Bitter constitutional dispute can be hermeneutically constructive, and has little noticed socially integrative effects.").
459. JOSH SUGARMANN, ASSAULT WEAPONS AND ACCESSORIES IN AMERICA (1988), available at http://www.vpc.org/studies/awacont.htm.
460. For example, New York Senator Charles Schumer, who in 1995 declared that "[t]he [S]econd [A]mendment does not guarantee the mythical individual right to bear arms," Gun Laws and the Need for Self-Defense: Hearing Before the H. Subcomm. on Crime of the H. Comm. of the Judiciary, 104th Cong. 3 (1995), in 2002 articulated "the broad principle that there is an individual right to bear arms," Reforming the FBI in the 21st Century: Hearing of the S. Judiciary Comm., 107th Cong. 163 (2002).
461. See also DEMOCRATIC NAT'L CONVENTION, STRONG AT HOME, RESPECTED IN THE WORLD: THE 2004 DEMOCRATIC NATIONAL PLATFORM FOR AMERICA 18 (2004), http://www.democrats.org/pdfs/2004platform.pdf (affirming the Democrats' commitment to "protect Americans' Second Amendment right to own firearms");
462. Michael Powell, For Obama, a Pragmatist's Shift Toward the Center, N.Y. TIMES, June 27, 2008, at A14 (quoting Senator Barack Obama as saying "I have always believed the Second Amendment protects the right of individuals to bear arms.").
463. But these shifts in rhetoric do not necessarily indicate consensus. See infra note 266.
464. 5ee Respondent's Brief at 30, Heller, 128 S. Ct. 2783 (No. 07-290), 2008 WL 336304 ("Respondent does not suggest that members of private paramilitary organizations have a right to commit violent acts under the auspices of acting as a citizen militia.");
465. cf. Brief for the United States as Amicus Curiae, Heller, 128 S. Ct. 2783 (No. 07-290), 2008 WL 157201 ("Although the court of appeals correctly held that the Second Amendment protects an individual right, ... the Second Amendment, properly construed, allows for reasonable regulation of firearms . . . .");
466. Brief for Amici Curiae Former Senior Officials of the Department of Justice in Support of Respondent at 3-4, Heller, 128 S. Ct. 2783 (No. 07-290), 2008 WL 40551 ("The Second Amendment's protection was never understood to extend to unfit persons or to unusual and especially dangerous firearms.").
467. Underlying the Democrats' and the NRA's increasingly similar formulations of the right remain vastly different views about its regulability. See Jonathan Martin, NRA Plans S40M Fall Blitz Targeting Obama, POLITICO, June 30, 2008, http://www.politico.com/news/stories/0608/11452.html (reporting the NRA's plans to spend fifteen million dollars "portraying Barack Obama as a threat to the Second Amendment rights upheld" in Heller);
468. Jacob Sullum, Isn't Self-Defense Common Sense?, REASONONLINE, Feb. 27, 2008, http://www.reason.com/news/show/125180. html ("Although [Senator Obama] has learned to pay lip service to the Second Amendment, the details of his past and present positions on gun control suggest he neither understands nor respects the right to keep and bear arms."). Progressives who now recognize individual rights under the Second Amendment generally believe the Constitution allows many more forms of gun control than do conservatives.
469. Compare The O'Reilly Factor (Fox News Channel television broadcast Apr. 23, 2007) (featuring Sen. Charles Schumer saying "I think certain kinds of licensing and registration is a reasonable limitation. We do it for cars."), with NRA-ILA, Fact Sheet: Licensing and Registration, Oct. 7, 2000, http://www.nraila.org/Issues/FactSheets/Read. aspx?id=28 ("[T]hose who wonder what motivates American gun owners should understand that perhaps only one other word in the English language so boils their blood as 'registration,' and that word is 'confiscation.' Gun owners fiercely believe those words are ominously related."). The Democrats recently adopted a party platform that provides: We . . . will preserve Americans ' Second Amendment right to own and use firearms. We believe that the right to own firearms is subject to reasonable regulation, . . . [and] [w]e can work together to enact and enforce commonsense laws and improvements - like closing the gun show loophole, improving our background check system, and reinstating the assault weapons ban, so that guns do not fall into the hands of terrorists or criminals.
470. DEMOCRATIC NAT'L CONVENTION, RENEWING AMERICA'S PROMISE: THE 2008 DEMOCRATIC NATIONAL PLATFORM FOR AMERICA 50, available at http://www.democrats.org/a/party/platform.html.
471. See Siegel, Constitutional Culture, supra note 10.
472. As this Comment goes to press, the Republican presidential nominee has energized his campaign by selecting an anti-abortion, pro-gun female vice-presidential running mate, who, when introduced at the party's nominating convention, demonstrated her qualifications by mocking the "community organizing" experience of the first black presidential candidate ever nominated by a major political party -with apparent impunity and to great partisan acclaim. Cf. Erik Engquist, Attack on Obama Carries Racial Overtones, Says Paterson, CRAIN'S N.Y. BUSINESS.COM, Sept. 9, 2008, http://mycrains.crainsnewyork.com/paterson/2008/09/attack-on-obama- carries-racial.html ("Gov. David Paterson this morning said that Republicans' ridiculing of Sen. Barack Obama's community organizing carries racial overtones. . . . McCain spokesman Peter Feldman [countered] '[t]his is a tactic that the Obama campaign has used before, and which McCain campaign manager Rick Davis correctly called "divisive, shameful, and wrong."'").
473. The party's platform affirms the right to bear arms and calls for a President who will appoint judges who will interpret the Constitution as Heller did. REPUBLICAN NAT'L CONVENTION, 2008 REPUBLICAN PARTY PLATFORM 51 (2008), http://platform.gop.com/2008Platform.pdf ("We applaud the Supreme Court's decision in Heller affirming [the right to own firearms], and we . . . call on the next president to appoint judges who will similarly respect the Constitution.").