Heller, HLR, and holistic legal reasoning

Harvard Law Review

Volumn 122, Issue 1, 2008, Pages 145-190

  Amar, Akhil Reed ^a  

^a YALE UNIVERSITY   (United States)

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EID: 57649103113     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (258)

1. 128 S. Ct. 2783 (2008).
2. Throughout this Comment, I shall use the word "article" to refer generically to all significant law review items, including notes, comments, essays, and book reviews.
3. 128 S. Ct. at 2832 (Stevens, J., dissenting)
4. (quoting Frederick Bernays Wiener, The Militia Clause of the Constitution, 54 HARV. L. REV. 181, 182 (1940)).
5. Wiener's is the only article cited by the various opinions in Heller that had previously been invoked by a Court majority. See Perpich v. Dep't of Def., 496 U.S. 334, 341 (1990);
6. Maryland ex rel. Levin v. United States, 381 U.S. 41, 46 (1965).
7. Wiener is also the only journal author cited in Heller who wrote before the outpouring of modern Second Amendment scholarship, an outpouring that began in earnest with a provocative article authored by Don Kates in 1983.
8. See Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204 (1983).
9. Following in the footsteps of a prophetic 1997 concurrence by Justice Thomas, the Heller majority cited this notable Kates article with approval. See Printz v. United States, 521 U.S. 898, 938 n.2 (1997) (Thomas, J., concurring)
10. Heller, 128 S. Ct. at 2803.
11. The next highest article count was from the Yale Law Journal and the Michigan Law Review, each with seven. One particular HLR article was cited in two different cases last term. See John R. Sand & Gravel Co. v. United States, 128 S. Ct. 750, 759 n.6 (2008)
12. (Stevens, J., dissenting) (citing O.W.Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897));
13. Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2627 (2008) (same).
14. See Fox Butterfield, First Black Elected To Head Harvard's Law Review, N.Y. TIMES, Feb. 6, 1990, at A20.
15. I admit that this is an artificial - indeed cutesy - way of organizing my analysis. As will become clear soon enough, while I have framed my remarks around six persons with special links to this Review, I have not hesitated to weave into my analysis discussion of other jurists where appropriate.
16. The other Notes Editor for Volume 73 was Frank Michelman. John D. French was HLR President that year.
17. The Chief Justice and Justices Kennedy, Thomas, and Alito joined Justice Scalia's majority opinion; Justices Souter, Ginsburg, and Breyer joined Justice Stevens's dissent. Justice Breyer also delivered a separate dissent, joined by Justices Stevens, Souter, and Ginsburg. For analysis of this Breyer dissent, see infra section II.B, pp. 182-87.
18. Where direct and extensive analysis of the Constitution's text, history, and structure does occur in the United States Reports, it is often found in dissents or concurrences.
19. 410 U.S. 113 (1973).
20. Even when the Justices have explicitly invoked the Fourteenth Amendment's text, they have almost never paused to explain how a clause that speaks of "due process" is properly read to require states to honor various nonprocedural rights such as the free exercise of religion or theentitlement to just compensation (or the right of privacy, for that matter). The best textual approach is to use the Fourteenth Amendment's companion Privileges or Immunities Clause, but the Court has only rarely invoked this grand provision. For more discussion, see infra pp. 175-77.
21. See also AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 163-80 (1998).
22. Heller, 128 S. Ct. at 2788.
23. Id.
24. Id.
25. Cf. Ring v. Arizona, 536 U.S. 584, 613 (2002)
26. (Scalia, J., concurring) (referring, with style, to "Apprendi- land").
27. See Heller, 128 S. Ct. at 2788-2802.
28. Id. at 2802;
29. see also id. at 2802-12.
30. Id. at 2803.
31. See id. at 2812-16.
32. Id. at 2812 (emphasis added).
33. Justice Scalia ultimately concluded that the key precedent actually tended to support Dick Heller's claim. See infra p. 165.
34. U.S. CONST, art. III, § 1, cl. 1.
35. Id. art. I, § 8, cl. 9.
36. Id. art. III, § 2, cl. 1.
37. Heller, 128 S. Ct. at 2823 & n.2, 2844 n.38 (Stevens, J., dissenting).
38. Lower court rulings might also sometimes give rise to reliance interests that the Supreme Court should properly take into account. The reliance issue is discussed in more detail infra section I.A.3, pp. 156-61. As we shall see, none of the lower court cases invoked by Justice Stevens created any reliance interests that should properly prevent today's Supreme Court from enforcing the correct meaning of the Constitution.
39. See, e.g., Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007);
40. United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).
41. 14 U.S. (i Wheat.) 304 (1816).
42. 17 U.S. (4 Wheat.) 316 (1819).
43. See Heller, 128 S. Ct. at 2822, 2823 & nn.2-3, 2824, 2829 n.10, 2836-37, 2838 n.30, 2839, 2844 n.36, 2845-46 (Stevens, J., dissenting).
44. 307 U.S. 174 (1939).
45. See Heller, 128 S. Ct. at 2814.
46. The respondent in Miller did not make an appearance at oral argument and did not file a brief; the Court heard only from the Solicitor General. See id.
47. By "clipped" I mean both terse and filled with cut-and-pasted squibs.
48. See Miller, 307 U.S. at 178-82.
49. Justice Scalia also argued that what little Miller did say on balance tended to support Heller's right to keep a handgun at home.
50. See Heller, 128 S. Ct. at 2813-16;
51. see also infra p. 165.
52. Heller, 128 S. Ct. at 2836, 2846 (Stevens, J., dissenting).
53. For other (and slightly different) formulations of Justice Stevens's claim that a break with precedent requires some "new" evidence or argument, see id. at 2823-24 & n.4, 2831, 2845.
54. It is worth repeating that Justice Scalia denied that he was radically departing from Miller. He clearly approved of Miller's outcome on Miller's facts; he claimed that Miller contained language supporting Heller's position; and he actually borrowed two doctrinal formulations from Miller in his effort to specify which sorts of guns are protected by the Second Amendment. See id. at 2813-16 (majority opinion).
55. At the end of his opinion, Justice Stevens appeared to recognize this truth: "The Court concludes its opinion by declaring that it is not the proper place of this Court to change the meaning of rights 'enshrinefd]' in the Constitution." Id. at 2846
56. (Stevens, J., dissenting) (alteration in original) (quoting id. at 2822 (majority opinion)).
57. Justice Stevens responded by arguing that the majority had simply misconstrued the original meaning and had failed to carry its burden "as a matter of text or history." "[T]he right the Court announces was not 'enshrined' in the Second Amendment by the Framers; it is the product of today's law-changing decision." Id. This is a quite different -and, as we shall see below, much more plausible -critique, alleging not that the Court has ignored precedents such as Miller, but rather that it has misinterpreted the Constitution's original meaning.
58. It may, however, have created reliance interests. See infra section I.A.3, pp. 156-61.
59. See 496 U.S. 167, 200-05 (1990)
60. (Scalia, J., concurring in the judgment).
61. 541 U.S. 36 (2004).
62. Id. at 60, 68 (overruling Ohio v. Roberts, 448 U.S. 56 (1980)).
63. Justice Thomas also deserves special notice here as the first member of the Court to identify the pre-Crawford mismatch between the Sixth Amendment's actual words and the Court's Sixth Amendment doctrine and to propose a proper corrective. See White v. Illinois, 502 U.S. 346, 358-66 (1992) (Thomas, J., concurring in part and concurring in the judgment).
64. See Danforth v. Minnesota, 128 S. Ct. 1029, 1036 n.6 (2008)
65. (citing Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441 (1963);
66. Henry M. Hart, Jr., The Supreme Court, 1958 Term-Foreword: The Time Chart of the Justices, 73 HARV. L. REV. 84 (1959));
67. see also id. at 1038
68. (citing Paul J. Mishkin, The Supreme Court, 1964 Term - Foreword: The High Court, the Great Writ, and the Due Process of Time and Law, 79 HARV. L. REV. 56 (1965)).
69. 128 S. Ct. 1029 (2008) (holding that state courts on collateral review of state convictions are free to give retroactive effect to new rules of federal constitutional criminal procedure where federal courts would not do so under Teague v. Lane, 489 U.S. 288 (1989)).
70. Id. at 1035 & n.5 (internal citations omitted).
71. Justice Scalia has been rather more methodologically consistent. His quest for textual fidelity and original understanding of the Sixth Amendment in Crawford anticipated his similar approach to the Second Amendment in Heller. See supra p. 152.
72. But as we shall see later, he too has failed to articulate and follow a convincing and coherent approach when the Court's cases and the Constitution's original meaning collide. See infra pp. 160-61.
73. U.S. CONST, art. VI.
74. 474 U.S. 254 (1986).
75. See Heller, 128 S. Ct. at 2824 n.4
76. ("[T]he careful observer will discern that any detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged to bring its opinions into agreement with experience and with facts newly ascertained." (quoting Vasquez, 474 U.S. at 266))
77. (internal quotation marks omitted). This bland Vasquez dictum did not purport to lay down a rigid legal prerequisite for all future overrulings. Indeed, in its very next sentence (a sentence not quoted by Justice Stevens), the Vasquez Court declared that "[o]ur history does not impose any rigid formula to constrain the Court in the disposition of cases." Vasquez, 474 U.S. at 266. As the coda for this meditation on stare decisis, Vasquez closed with a sweepingly open-ended list of reasons for overruling: stare decisis might properly yield if the Court deemed a particular precedent "outdated, ill-founded, unworkable, or otherwise legitimately vulnerable to serious reconsideration.
78. " Id. (emphasis added). Moreover, surely Vasquez 's reference to "experience" properly includes the experiences encoded in the Constitution itself -that is, the experiences of the American people that led them to put a given rule into the Constitution in the first place. And nothing in the words "facts newly ascertained" says that these facts must have been unavailable to the precedent-setting Court. "Newly ascertained" does not self-evidently mean "newly available" or "never before considered by the Court." Rather, it quite naturally can mean a fact that was never before accepted or properly understood by the Court -or a fact that was previously accepted and is now confirmed afresh ("newly").
79. The most notable citation to Vasquez by a Court majority on the subject of stare decisis in constitutional cases simply invoked the case for the following proposition: precedent should be followed "absent demonstration that our earlier cases were themselves a misinterpretation of some constitutional command." Johnson v. Texas, 509 U.S. 350, 366-367 (1993)
80. (citing Vasquez, 474 U.S. at 265-66).
81. In another majority opinion -in a case where the Court ultimately opted to overrule a prior precedent -the citation to Vasquez on the value of stare decisis was followed by this reminder: "[nevertheless, when governing decisions are unworkable or are badly reasoned, 'this Court has never felt constrained to follow precedent.'" Payne v. Tennessee, 501 U.S. 808, 827 (1991) (emphasis added)
82. (quoting Smith v. Allwright, 321 U.S. 649, 665 (1944)).
83. Prior to Vasquez, here is what the Court said in Allwright: "[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions." Allwright, 321 U.S. at 665.
84. See, e.g., Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441 n.78 (1968)
85. (overruling Hodges v. United States, 203 U.S. 1 (1906)).
86. See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 97-98 (2000)
87. (Stevens, J., dissenting) ("Despite my respect for stare decisis, I am unwilling to accept [Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)] as controlling precedent. First and foremost, the reasoning of that opinion is so profoundly mistaken and so fundamentally inconsistent with the Framers' conception of the constitutional order that it has forsaken any claim to the usual deference or respect owed to decisions of this Court. Stare decisis, furthermore, has less force in the area of constitutional law."). Justices Souter, Ginsburg, and Breyer joined this dissent.
88. A focus on individual Justices prompts interesting questions about whether a Justice's age might predictably influence his or her attraction or resistance to precedent-entrenching proposals such as the one Justice Stevens floated in Heller. Given that such efforts restrict the immediate freedom of future Court majorities, we might expect younger Justices -who are on average more likely to serve longer and thus to be in more future majorities - to be more skeptical of precedent entrenchment than older Justices, who will be tying their successors' hands more than their own with any new precedent-entrenchment rule. True, an entrenching formula can also be seen as empowering tomorrow's Court to project its authority further into the future, but the formula requires immediate judicial forbearance without any ironclad guarantee that Justices in the far future will in fact reciprocate and enforce the deal. Any newly adopted entrenchment rule also gives a windfall to past decisions and thus differentially advantages senior Justices who have on average joined more past majority opinions than junior Justices. In Heller, it is perhaps suggestive that the three youngest Justices (Chief Justice Roberts and Justices Thomas and Alito) all opposed the precedent-entrenching formula offered by Justice Stevens; the two oldest Justices (Justices Stevens and Ginsburg) favored the formula; while the remaining four Justices in the middle of the Court's age distribution (Justices Scalia, Kennedy, Souter, and Breyer) split evenly. If we rank instead by actual seniority, the two most junior Justices (Chief Justice Roberts and Justice Alito) opposed the entrenching formula offered by the most senior Justice (Justice Stevens) with the remaining six Justices in the middle of the seniority distribution (Justices Scalia, Kennedy, Thomas, Souter, Ginsburg, and Breyer) splitting evenly.
89. 163 U.S. 537 (1896).
90. U.S. CONST, art. III, § 2.
91. Here, once again, is Danforth: [W]e note at the outset that the very word "retroactivity" is misleading because it speaks in temporal terms.
92. "Retroactivity" suggests that when we declare that a new constitutional rule of criminal procedure is "nonretroactive," we are implying that the right at issue was not in existence prior to the date the "new rule" was announced. But this is incorrect. As we have already explained, the source of a "new rule" is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule. What we are actually determining when we assess the "retroactivity" of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought. Danforth v. Minnesota, 128 S. Ct. 1029, 1035 (2008).
93. The opinion continued in a footnote: "It may, therefore, make more sense to speak in terms of the 'redressability' of violations of new rules, rather than the 'retroactivity' of such rules. Cf. Am. Trucking Ass'ns, Inc. v. Smith, 496 U.S. 167, 201 (1990)
94. (Scalia, J., concurring in judgment)." Id. at 1035 n.5.
95. Heller, 128 S. Ct. at 2823, 2845 & n.38, 2846 (Stevens, J., dissenting).
96. Justice Stevens's repeated emphasis on reliance by "judges" was no casual slip. Rather, this emphasis intertwined with his efforts to stress the pro-gun control consensus among circuit courts between 1939 and 2000. See supra p. 149.
97. True, a lower court judge might suffer a reputational hit and a psychic letdown: she followed Miller faithfully and now the Supreme Court is in effect reversing her, making her worse off than if the case had never existed! But surely this is not the sort of reliance generally protected by remedial principles and constitutional structure. In fact, the Court itself has made clear that there is no judicial dishonor when a lower court follows erroneous Supreme Court precedent and leaves the task of correcting the Court's own error to the Court itself. See, e.g., Rodriguez deQuijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).
98. In one recent episode, the Court praised circuit judges even as it reversed them because they had properly followed an old Court precedent that the current Court ultimately decided to explicitly repudiate. SeeEberhart v. United States, 126 S. Ct. 403, 407 (2005) (per curiam).
99. Perhaps the underlying thought was that, absent Miller's and lower courts' broad approval of gun control in the mid-twentieth century, gun control supporters would have amended the Second Amendment out of the Constitution. But of course they are free to do so today, and are thus no worse off than they would have been had Miller never existed. If the concern is somehow about the increased risk of crime in the District pending the likely ratification of a repealing amendment, this concern would at most argue for a modest time lag before any overruling took full remedial effect. One can imagine other possible reliance interests, but, to repeat, Justice Stevens offered no details or analysis, and most imaginable reliance interests would merely counsel a short delay before a full overruling should take effect.
100. At one particularly unfortunate turn, Justices Stevens and Scalia talked past each other. Justice Scalia pointed to the American people's legitimate reliance on the "true meaning" of the Second Amendment, which he believed his opinion expounded and restored. Heller, 128 S. Ct. at 2815 n.24 (emphasis added). This is a very different sort of reliance interest than the one that we have been considering so far, namely, reliance on a constitutionally erroneous Court case (or other government action) that has given rise to conduct relying on the validity of the case (or action).
101. Justice Stevens responded by saying that it was "hard to see how Americans have 'relied,' in the usual sense of the word, on the existence of a constitutional right that, until 2001, had been rejected by every federal court to take up the question." Id. at 2844 n.38 (Stevens, J., dissenting). But as noted, "reliance" here was being used by Justice Scalia in a different sense. If the Framers and Amenders did indeed constitutionally codify a given right, subsequent generations of Americans are entitled to believe that it will always be protected. Otherwise, what is the point of writing down the Constitution and proclaiming it supreme law? And why bother to keep it short? Precisely so that the people themselves can directly engage it and be part of its unfolding interpretation. The people are entitled to rely on the written Constitution's core original meaning and to rely on current judges to restore this meaning if past judges have erroneously constricted it.
102. Even if this interest were to be protected, it would offer no shield to any crime committed after the Court made clear that the exclusionary rule must go. For detailed analysis of the various legal interests at stake, see AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 27, 97-116, 151-52 (1997).
103. Although I cannot fully defend this admittedly sweeping charge today, I have begun to do so elsewhere. See, e.g., Akhil Reed Amar, On Text and Precedent, 31 HARV. J.L. & PUB. POL'Y 961 (2008);
104. Akhil Reed Amar, The Supreme Court, 1999 Term-Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 78-89 (2000).
105. Justice Stevens's Heller dissent is emblematic, privileging precedent by both overreading it and overentrenching it. First he tried to make a mountain out of the Miller molehill, insisting that the case decided far more than it did. See supra p. 151.
106. Then he defended his extreme precedent-entrenching formula, which would require that an overruling be accompanied by "new evidence," by appealing to precedent itself - Vasquez - in a methodologically circular enterprise remarkable for the total absence of any plausible accompanying textual, structural, or originalist arguments for this extreme entrenchment. See supra pp. 154-55.
107. Is it wholly coincidental that Justice Stevens's dissent was joined by two HLR alumni, Justices Ginsburg and Breyer, and yet another HLR well-wisher, Justice David Souter? (Since the beginning of the 2000 Term, Justice Souter has hired more HLR alumni as law clerks than any other Justice. To preserve consistency, this calculation combines the clerk counts for Chief Justice Rehnquist and his successor, ChiefJustice Roberts, and also combines the counts for Justice O'Connor and her replacement, Justice Alito.)
108. A similar analysis can be applied to the broad language of the Fourteenth Amendment's Privileges or Immunities Clause. The rights protected by this clause explicitly apply against states and implicitly against the federal government as well. See AMAR, supra note II, at 163-80, 195-96 n.*, 281 n.*.
109. This is not something that can be said about the exclusionary rule, whose upside-down logic springing the guilty and demoralizing crime victims has always been strongly resisted by a very large portion of the general citizenry, especially in cases of violent crime such as murder, rape, and robbery.
110. An exception to this general approach might well be warranted if expanding a nontextual right would somehow contract a textual right.
111. U.S. CONST, amend. II (punctuation modernized). On the oddities of comma placements in various eighteenth-century sources,
112. see Ian Ayres, Pregnant with Embarrassments: An Incomplete Theory of the Seventh Amendment, 26 VAL. U. L. REV. 385, 386-89 (1991).
113. Heller, 128 S. Ct. at 2822 (Stevens, J., dissenting).
114. Id. at 2801 (majority opinion).
115. Id. at 2815-17.
116. Here is a parable recounted by one prominent Founder: Today a man owns a jackass worth fifty dollars and he is entitled to vote; but before the next election the jackass dies. The man in the mean time has become more experienced, his knowledge of the principles of government, and his acquaintance with mankind, are more extensive, and he is therefore better qualified to make a proper selection of rulers - but the jackass is dead and the man cannot vote. Now gentlemen, pray inform me, in whom is the right of suffrage? In the man or in the jackass?" BENJAMIN FRANKLIN, THE CASKET, OR FLOWERS OF LITERATURE, WIT AND SENTIMENT (1828),
117. quoted in ALEXANDER KEYSSAR, THE RIGHT TO VOTE 3 (2000).
118. 496 U.S. 334 (1990).
119. See Heller, 128 S. Ct. at 2842-44 (Stevens, J., dissenting).
120. Id. at 2815-16 (majority opinion).
121. 95 U.S. 714 (1878).
122. Pennoyer, the famous case explaining hoary rules of in rem jurisdiction, was good law when Miller was decided but was ultimately overruled in the 1945 case of International Shoe Co. v. Washington, 326 U.S. 310 (1945).
123. Austin v. United States, 509 U.S. 602, 628 (1993) (Scalia, J., concurring in part and concurring in the judgment).
124. I SEN. J. 63 (Aug. 25, 1789).
125. See Heller, 128 S. Ct. at 2800 (noting that "the ordinary definition of the militia" encompassed "all able-bodied men");
126. see also id. at 2799 ("[T]he Militia comprised all males physically capable of acting in concert for the common defense."
127. (quoting United States v. Miller, 307 U.S. 174, 179 (1939)) (internal quotation marks omitted)).
128. The "woman" question thus poses a dilemma for Justice Scalia. If he insists that women were centrally covered by the Second Amendment, the linkage between the preamble and the operative clause becomes more obviously attenuated. But if women are not covered, then how can we read the amendment as safeguarding a right of individual self-defense -a right surely every bit as vital to females as to males? Blackstone, for example, viewed the right to self-preservation as an inalienable civil right of all persons, as distinct from political rights, such as voting andoffice-holding, enjoyed by a select subset. See I WILLIAM BLACKSTONE, COMMENTARIES *141-44;
129. see also AMAR, supra note 11, at 48-49, 261-62.
130. See Heller, 128 S. Ct. at 2799-2800 ("[W]e agree ... that 'militia' means the same thing in Article I and the Second Amendment.").
131. See id. at 2790-91.
132. See generally Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747 (1999).
133. See id. at 775, 785, 793 & n.182, 801 n.203 (introducing and analyzing the concept of "chameleon" words).
134. Judicial doctrine treats corporations as persons for purposes of economic equal protection in cases such as Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949),
135. but not as persons for purposes of voting-rights equal protection in cases such as Reynolds v. Sims, 377 U.S. 533 (1964). Thus, corporations are treated as alternately persons and nonpersons under the very same constitutional clause!
136. See Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 776, 808-09 (1994)
137. (quoting and analyzing a 1787 pamphlet calling for constitutional protection in a scenario in which a constable searching "for stolen goods, pulled down the clothes of a bed in which there was a woman and searched under her shift"). In keeping with this history, Justice Scalia has used the Fourth Amendment to invalidate a high-tech search technique that would enable the government to determine "at what hour each night the lady of the house takes her daily sauna and bath -a detail that many would consider 'intimate.'" Kyllo v. United States, 533 U.S. 27, 38 (2001).
138. See, e.g., Robert A. Gross, Public and Private in the Third Amendment, 26 VAL. U. L. REV. 215, 219 (1991) (quoting colonist expressing hostility to Parliament's Quartering Act placing soldiers "abed" with America's "Wives and Daughters").
139. So too are aliens. Longstanding commentary dating at least as far back as Jefferson's criticism of the Alien and Sedition Acts of 1798 has recognized the Fourth Amendment rights of even nonresident aliens to security in their persons and freedom from arbitrary arrest. Yet it would be outlandish to insist that such nonresident aliens had a Second Amendment entitlement to be part of America's general militia merely because these persons were protected by the Fourth Amendment.
140. See AMAR, supra note ii, at 48-49 & n.*.
141. See id.
142. See Heller, 128 S. Ct. at 2790;
143. see also supra p. 168.
144. For an alternative account of the textual overlap that reads the Fourth Amendment's "right of the people" as a subtle gesture in the direction of civil juries of the people, who were expected to play a significant role in enforcing the Fourth Amendment, see AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 326-27 (2005);
145. see also AMAR, supra note 11, at 64-77.
146. See Heller, 128 S. Ct. at 2792 n.7.
147. See An Act Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown (Bill of Rights), 1689, 1 W. & M., c.2, §7 (Eng.) [hereinafter English Bill of Rights] ("[T]he Subjects, which are Protestants, may have Arms for their Defence suitable to their Conditions, and as allowed by Law.").
148. See Heller, 128 S. Ct. at 2822-23 (Stevens, J., dissenting).
149. 6 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 1453 (John P. Kaminski & Gaspare J. Saladino eds., 2000).
150. Heller, 128 S. Ct. at 2801 (emphasis omitted).
151. Id. at 2804.
152. Id. at 2797.
153. Id. at 2831 (Stevens, J., dissenting).
154. See id. at 2798 n.16 (majority opinion).
155. See AMAR, supra note 11, at 24-26, 223-25.
156. Cf. English Bill of Rights, supra note 91, § 9 ("[T]he Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.").
157. See AMAR, supra note 11, at 332 n.33.
158. See PA. CONST, art. 1, § 21 ("The right of citizens to bear arms in defense of themselves and the State shall not be questioned.");
159. VT. CONST, ch. I, art. 16 ("[T]he people have a right to bear arms for the defence of themselves and the State.").
160. Although Vermont did ratify the Second Amendment, it did not become a state until 1791 and thus played no role in the discussions leading up to the Amendment in the various state ratifying conventions of 1787-1788 or in the actual drafting of the Amendment by the First Congress in 1789.
161. See Heller, 128 S. Ct. at 2795 & n.10.
162. See id. at 2822-23 (Stevens, J., dissenting).
163. Id. at 2828-29.
164. Id. at 2829 n.n (quoting Smith v. United States, 508 U.S. 223, 242 (1993) (Scalia, J., dissenting)).
165. See id. at 2803-12 (majority opinion).
166. 32 U.S. (7 Pet.) 243 (1833).
167. See Heller, 128 S. Ct. at 2807.
168. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. CONST, amend. IX.
169. See supra section I.A.4, p. 162-64.
170. See generally AMAR, supra note 11, at 195-96 n.*, 281-82 & n.*.
171. See id.
172. Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 248-49 (1833).
173. Act of July 16, 1866, ch. 200, § 14, 14 Stat. 173, 176.
174. See AMAR, supra note 11, at 257-68.
175. Many of these sources are discussed in great detail as preludes to the Fourteenth Amendment in AMAR, supra note 11, at 145-62, 257-66.
176. See supra p. 174.
177. Heller, 128 S. Ct. at 2841 (Stevens, J., dissenting).
178. Justice Scalia offered a crabbed view of the Ninth Amendment's justiciability in his dissent in Troxel v. Granville, 530 U.S. 57 (2000),
179. but his Troxel opinion did not consider how the Ninth might properly be considered by judges in conjunction with a textual right. See id. at 91-93 (Scalia, J., dissenting).
180. Nor would any proper reliance interests bar recourse to the Ninth.
181. 448 U.S. 555, 579 n.15 (1980).
182. See Brief of Appellants at 53-59,
183. Richmond Newspapers, 448 U.S. 555 (No. 79-243).
184. See generally Akhil Reed Amar, A Tribute to Larry Tribe, 42 TULSA L. REV. 801 (2007).
185. The story is told in detail in AMAR, supra note 11.
186. This is, I admit, a harsh assessment of Fairman, but one that I have tried to detail and defend at length elsewhere. See id. at 183 & n.*, 187-93, 197-207, 303.
187. This story is well told in Richard L. Aynes, Charles Fairman, Felix Frankfurter, and the Fourteenth Amendment, 70 CHI.-KENT L. REV. I 197 (1995).
188. David Leebron served as HLR President for Volume 92.
189. Cf. PHILIP BOBBITT, CONSTITUTIONAL FATE 55 (1982) (observing that "reasoning from purpose . . . gives doctrinalism its power; it can't provide purpose" in the same way that originalism often can);
190. cf. also id. at 49 ("[A Court composed only of classical doctrinalists] sounds more like the word of the Harvard Law Review: a group of industrious but largely convictionless students arriving at results.").
191. Philip Bobbitt and John Roberts clerked for the same Second Circuit judge, a judge who himself had begun his legal career as President of the Harvard Law Review. See infra p. 181.
192. Justice Scalia limited recognition of an individual right to keep arms to situations of selfdefense involving "confrontation" -that is, "conflict with another person" -as distinct from, say, hunting or recreation. Heller, 128 S. Ct. at 2793
193. (quoting Muscarello v. United States, 524 U.S. 125, 143 (1998)) (internal quotation marks omitted). The word was no casual slip; it appeared, with variations, a total of five times in Scalia's opinion. See id. at 2793, 2796, 2797, 2799, 2819.
194. As in Crawford, whose methodological similarity to Heller was noted at supra p. 152, Justice Scalia saw the Framers as his kind of guys -manly men who envisioned and to some extent celebrated face-to-face conflicts.
195. 128 S. Ct. 2678, 2681 (2008) ("We consider whether [under Crawford] a defendant forfeits his right to confront a witness against him when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial.").
196. See, e.g., Heller, 128 S. Ct. at 2790 n.5 (declaring that Justice Stevens was "dead wrong" on a point -a phrase never before used in the United States Reports to describe a member of the Court).
197. See Linda Greenhouse, In Latest Term, Majority Grows to More than Five of the Justices, N.Y. TIMES, May 23, 2008, at A1.
198. 128 S. Ct. 1610 (2008). Justice Stevens announced the judgment of the Court in an opinion joined by Chief Justice Roberts and Justice Kennedy, and Justice Scalia wrote a concurring opinion joined by Justices Thomas and Alito, yielding a 6-3 decision.
199. See id. at 1615 (holding only that "the evidence in the record is not sufficient to support a facial attack on the validity of the entire statute").
200. See Heller, 128 S. Ct. at 2813 n.23, 2816.
201. 92 U.S. 542 (1876).
202. See id. at 553 ("[The Second Amendment] is one of the amendments that has no other effect than to restrict the powers of the national government." (emphasis added)).
203. See, e.g., Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 CAL. L. REV. 929, 933-38 (1965).
204. See Charles Lane, Head of the Class, STAN. MAG., July-Aug. 2005, available at http:// www.stanfordalumni. org/news/magazine/2005/julaug/features/rehnquist.html ("'Charles Fairman is a big piece of the story of Bill Rehnquist at Stanford,' says John Q. Barrett, a law professor at St. John's University who interviewed Rehnquist as part of his research on Justice Jackson. 'He was his very influential role model and teacher as an undergraduate.'").
205. See, e.g., Codispoti v. Pennsylvania, 418 U.S. 506, 535 (1974) (Rehnquist, J., dissenting) (citing with approval Fairman's anti-incorporation scholarship).
206. if you doubt that some version of incorporation was part of the central meaning of the Fourteenth Amendment, please read AMAR, supra note 11, at 137-307.
207. If you doubt that the Fourteenth is our central amendment, please conduct the following simple experiment. Pick the eight to ten cases you think are most important on issues of civil rights and civil liberties. I predict that the great majority of the cases you pick will be cases involving states and localities -Fourteenth Amendment cases, strictly speaking.
208. The other Articles Editor for Volume 77 was Frederic J. Truslow. Michael Boudin was HLR President that year.
209. 78 HARV. L. REV. 746 (1965).
210. See id. at 746.
211. Id.
212. 381 U.S. 479, 486-93 (1965) (Goldberg, J., concurring) (discussing the history and role of the Ninth Amendment).
213. Heller, 128 S. Ct. at 2847-70 (Breyer, J., dissenting).
214. Full disclosure: I clerked for then-Judge Breyer on the First Circuit in 1984-1985.
215. See, e.g., Richard A. Posner, In Defense of Looseness: The Supreme Court and Gun Control, THE NEW REPUBLIC, Aug. 27, 2008, at 32, 33
216. (citing Adams on v. California, 332 U.S. 46 (1947) - scene of a famous duel between Justices Frankfurter and Black over incorporation -for the opposite of the case's actual holding, and garbling other textual and historical issues related to incorporation).
217. Posner's Volume opened with a tribute essay to Learned Hand by Felix Frankfurter, featured a Foreword by Frankfurter's prior clerk Alexander M. Bickel, showcased a three-part series by Frankfurter's protégé Henry J. Friendly, and contained yet another article by yet another Frankfurter acolyte, Louis L. Jaffe. Felix Frankfurter, Learned Hand, 75 HARV. L. REV. 1 (1961);
218. Alexander M. Bickel, The Supreme Court, 1960 Term-Foreword: The Passive Virtues, 75 HARV. L. REV. 40 (1961);
219. Henry J. Friendly, The Federal Administrative Agencies: The Need for Better Definition of Standards, 75 HARV. L. REV. 863 (1962);
220. Henry J. Friendly, The Federal Administrative Agencies: The Need for Better Definition of Standards, 75 HARV. L. REV. 1055 (1962);
221. Henry J. Friendly, The Federal Administrative Agencies: The Need for Better Definition of Standards, 75 HARV. L. REV. 1263 (1962);
222. Louis L. Jaffe, Standing to Secure Judicial Review: Private Actions, 75 HARV. L. REV. 255 (1961).
223. See, e.g., Heller, 128 S. Ct. at 2860-61 (Breyer, J., dissenting) ("[D]eference to legislative judgment seems particularly appropriate here, where the judgment has been made by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions. . . . We owe that democratic process some substantial weight in the constitutional calculus.");
224. cf. Bd. of Educ. v. Earls, 536 U.S. 822, 841 (2002) (Breyer, J., concurring) (deferring to school board drug testing policy adopted via "public meetings" and a "democratic, participatory process").
225. See generally STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING A DEMOCRATIC CONSTITUTION (2005).
226. Heller, 128 S. Ct. at 2860 (Breyer, J., dissenting).
227. See Gonzales v. Carhart, 127 S. Ct. 1610 (2007);
228. Stenberg v. Carhart, 530 U.S. 914 (2000).
229. Heller, 128 S. Ct. at 2861 (Breyer, J., dissenting)
230. (quoting Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 575 n.18 (1985) (Powell, J., dissenting)).
231. U.S. CONST, amend. IX.
232. Poe v. Ullman, 367 U.S. 497, 554 (1961) (Harlan, J., dissenting),
233. incorporated by reference in Griswold v. Connecticut, 381 U.S. 479, 500 (1965) (Harlan, J., concurring in the judgment).
234. See Developments in the Law-The Interpretation of State Constitutional Rights, 95 HARV. L. REV. 1324, 1430 n.5 (1982)
235. (listing constitutional provisions in ten states). A similar list appears in Elbert Lin, Prioritizing Privacy: A Constitutional Response to the Internet, 17 BERKELEY TECH. L.J. 1085, 1130 n.276 (2002).
236. For a similar effort to assess Heller in light of Griswold, see Cass R. Sunstein, The Supreme Court, 2007 Term-Comment: Second Amendment Minimalism: Heller As Griswold, 122 HARV. L. REV. 246 (2008).
237. See Akhil Reed Amar, The Second Amendment: A Case Study in Constitutional Interpretation, 2001 UTAH L. REV. 889, 902 n.37, and sources cited therein.
238. Justice Breyer tried to point to Founding-era evidence that urban areas were allowed greater discretion to restrict firearms, see Heller, 128 S. Ct. at 2848-50
239. (Breyer, J., dissenting), but his evidence was thin and doubtful. True, the Fourteenth Amendment "incorporated" the Second, and thus the Second applies with full rigor against the states. But incorporation applies against states not the literal text of theSecond Amendment, but rather the Second's basic individual right as refracted through the prism of the Fourteenth Amendment's "privileges" and "immunities." And the precise contours of these "privileges" and "immunities" are properly measured by examining actual American practices, state constitutional provisions, and so on. For much more analysis of this "refined incorporation," see AMAR, supra note II, at 215-83.
240. Most state constitutional protections of arms-bearing for hunting are the recent product of pro-gun social movements. For more on these movements, see Reva B. Siegel, The Supreme Court, 2007 Term-Comment: Dead or Alive: Originalism As Popular Constitutionalism in Heller, 122 HARV. L. REV. 191 (2008).
241. See Heller, 128 S. Ct. at 2822 ("Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation.").
242. Richard N. Goodwin served as HLR President for Volume 71.
243. See supra notes 83-85 and accompanying text.
244. Ginsburg attended Harvard from 1956 until 1958, when she transferred to Columbia. Scalia attended Harvard from 1957 until his graduation in 1960.
245. See Margaret Carlson, The Law According to Ruth, TIME, June 28, 1993, at 38, 40.
246. 518 U.S. 515 (1996).
247. See id. at 520-22.
248. For more on the interdependence of the political rights to vote, serve in the military, hold office, and sit on juries, see AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY, supra note 89, at 399-400 & n.*, 426-28, 612 n.106;
249. AMAR, supra note 11, at 48 & n.*, 49, 216-18, 258-61, 271-74.
250. See id.
251. See supra section LB.2.
252. See Heller, 128 S. Ct. at 2794-98 & n.16. Here again we see Justice Scalia's focus on objects, such as guns, as distinct from social structures, such as the military or the polity.
253. See United States v. Virginia, 518 U.S. at 520.
254. Or, dare I say, sexual orientation. For this vision to become fully plausible to jurists, it may well be necessary for a social movement to endorse and publicize this egalitarian understanding of the Second and Nineteenth Amendments. On the general significance of social movements, see Siegel, supra note 160.
255. See, e.g., Posting of Lisa Tozzi to The Caucus: The New York Times Politics Blog, http:// thecaucus.blogs.nytimes.com/2008/06/26/candidates-react- to-supreme-courts-gun-ruling/ (June 28, 2008, 12:32).
256. See Senator Barack Obama, Address at the National Constitution Center: A More Perfect Union (Mar. 18, 2008) (transcript available at http://my.barackobama.com/page/content/ hisownwords).
257. See AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY, supra note 89, at 399-400 & n.*.
258. See Act of Mar. 26, 1790, 1 Stat. 103; Act of July 14, 1870, ch. 254, §7, 16 Stat. 254, 256.