Heller and the triumph of originalist judicial engagement: A response to judge Harvie Wilkinson

UCLA Law Review

Volumn 56, Issue 5, 2009, Pages 1127-1169

  Gura, Alan ^a  

^a NONE

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EID: 78650575304     PISSN: 00415650     EISSN: None     Source Type: Journal    
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References (229)

1. J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 VA. L. REV. 253, 254 (2009).
2. 128 S. Ct. 2783 (2008).
3. Wilkinson, supra note 1.
4. Id. at 256.
5. 410 U.S. 113(1973).
6. Wilkinson, supra note 1 at 256.
7. Id. at 257.
8. Walter Dellinger, Panel on Originalism and Unenumerated Constitutional Rights, in ORIGINALISM: A QUARTER CENTURY OF DEBATE 113, 117 (Steven G. Calabresi ed., 2007).
9. Wilkinson, supra note 1, at 254.
10. The views I offer here, break no new philosophical ground. Significant scholars and practitioners on the legal Right endorse robust exercise of the judicial power. See, e.g., RANDY E. BARNETT, RESTORINGTHELOST CONSTITUTION (2004);
11. CLINTBOUCK, DAVID'S HAMMER (2007).
12. Among possible alternatives: "classical conservative," as opposed to the "modem conservative," which is defined by Judge Wilkinson as a reactionary to all things Roe, Wilkinson, supra note 1, at 264; or even the somewhat pejorative label-"radical libertarian"-employed by my esteemed opponent in Heller at oral argument, to my great delight. It should be noted, however, that my libertarianism is hardly radical by modem standards.
13. Id. at 2.54.
14. Id. at 267.
15. Id. at 255-57.
16. Supreme Court Viewed More Favorably Following Gun Ruling, RASMUSSEN REPORTS, June 29, 2008, http://www.rasmussenreports.com/public-contet/ supreme-court-viewed-more-favorably-tbllowing-gun-control-ruling.
17. Wilkinson, supra note 1 at 254.
18. Id. at 254-55.
19. Id. at 254.
20. Id.
21. On the Heller court, the justices popularly considered liberals would be Justices Stevens, Souter, Ginsberg, and Breyer, while their allegedly conservative counterparts are Chief Justice Roberts and Justices Scalia, Tilomas, and Alito. Justice Kennedy is widely viewed as a swing vote.
22. In Heller, fifty-five Senators and two hundred and fifty House, members joined a strong brief supporting the individual rights interpretation of the Second Amendment, including noted non-conservatives Russell Feingold (D-WI) and John Dingell (D-MI). See Brief for Amici Curiae 55 Members of United States Senate, the President of the United States Senate, and 250 Members of United States House of Representatives in Support of Respondent, District of Columbia v. Heller, 128 S. Ct. 2783 (2008) (No. 07-290).
23. Wilkinson, supra note 1, at 265.
24. United States v. Lopez, 514 U.S. 549 (1995) (rejecting the constitutionality of a prosecution for carrying a gun in a school zone; Justice Stevens and liberals dissent).
25. United States v. Morrison, 529 U.S. 598 (2000) (rejecting the constitutionality of federal civil liability for sexual misconduct; Justice Souter and liberals dissent).
26. Gonzales v. Raich, 545 U.S. 1 (2005) (Justice Stevens and fellow liberals vote to uphold federal criminalization of marijuana usage notwidistanding state-sanctioned medicinal use of the drug, while Justices O'Connor and two conservatives-Rehnquist and Thomas-dissent.).
27. Giles v. California, 128 S. Ct. 2678 (2008) (Justice Scalia leads the Court to a broad originalist view of Sixth Amendment Confrontation Clause, while Justice Breyer dissents.).
28. Texas v. Johnson, 491 U.S. 397 (1989) (Justice Scalia joins the majority striking down flag burning ban, while Justice Stevens dissents.);
29. McConnell v. FEC, 540 U.S. 93 (2003) (The decision reveals that conservative justices tend to favor First Amendment restrictions on the government's ability to regulate speech.);
30. Davis v. FEC, 128 S. Ct. 27.59 (2008).
31. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) (Chief Justice. Roberts and the other conservative. Justices strike down race-based school assignment; Justice Stevens and the liberal Justices dissent.);
32. Gmtter v. Bollinger, 539 U.S. 306 (2003);
33. Gratz v. Bollinger, 539 U.S. 244 (2003).
34. Raich, 545 U.S. 1.
35. Kelo v. City of New London, 545 U.S. 469 (2005) (Justice. Stevens's majority opinion sanctions developers using eminent domain to acquire property from unwilling individual sellers; Justice O'Connor and the conservatives dissent.).
36. 514U.S. 549 (1995).
37. 529 U.S. 598 (2000).
38. 540 U.S. 93(2003).
39. 128 S. Ct. 2759 (2008).
40. 127 S. Ct. 2738 (2007).
41. 539 U.S. 306 (2003).
42. 539 U.S. 244 (2003).
43. 545 U.S. 1 (2005).
44. 545 U.S. 469 (2005).
45. For one persuasive originalist take, on unenumerated rights, a topic well beyond the scope of this paper, see Randy R Barnett, The Ninth Amendment: It Means What It Says, 85 TEX. L REV. 1 (2006).
46. Compare Wickard v. Filburn, 317 U.S. 111 (1942) (A unanimous Roosevelt Court adopts broad view of Congressional Commerce power.),
47. with Carter v. Carter Coal Co., 298 U.S. 238 ( 1936) (A conservative majority adopts a narrow Commerce Clause reading over "liberal" dissent.).
48. Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398 ( 1934) (The "Four Horsemen" dissent, from the Court's holding that states may alter mortgage terms notwithstanding the. Contracts Clause.).
49. W. Coast Hotel v. Parrish, 300 U.S. 379 (1937) (The "Four Horsemen" dissent from Court's holding that liberty of contract is subject to deferential rational basis review.);
50. Nebbia v. New York, 291 U.S. 502 (1934) (same).
51. CHRISTOPHER TOMLINS, THE UNITED STATES SUPREME COURT: THE PURSUIT OF JUSTICE, 248-48 (2005).
52. This core was comprised of justices McReynolds, Sutherland, Van Devanter, and Butler. President. Hoover and Franklin Roosevelt's more progressive nominees would eventually prevail in shifting the Court's direction.
53. TOMLINS, supra note 44, at 246.
54. See, e.g., Daniel E. Ho & Kevin M. Quinn, Did a Switch in Time Save Nine? (Sept. 10, 2008) (unpublished manuscript), available at http://dho.stanford.edu/research/switch.pdf.
55. 410 U.S. 113(1973).
56. Wilkinson, supra note 1, at 264.
57. Id. at 265-67, 289, 293.
58. THE FEDERALIST NO. 78, at 401 (Alexander Hamilton) (George W. Carey & James McClellan eds., 2001).
59. Id. at 402.
60. Id.
61. Id. at 402-03.
62. Id. at 403-04 (emphasis added).
63. Id. at 405.
64. Id. at 403 (emphasis added).
65. 1 ANNALS OF CONG. 457 (Joseph Gales ed., 1789) (statement of Rep. Madison).
66. THE FEDERALIST NO. 78 (Alexander Hamilton), supra note 51, at 406 (emphasis added).
67. Id. at 403.
68. Id. at 404.
69. Id.
70. Vanhorne'sLessee v. Dorrance, 2 U.S. (2 Dall.) 304, 28 F. Cas. 1012,1014 (CCD. Pa. 1795).
71. THE FEDERALIST NO. 78 (Alexander Hamilton), supra note 51, at 402.
72. U.S. CONST, art. III, § 1.
73. Debates of the Federal Convention of 1787, Held at Philadelphia (1787), reprinted in 5 THE DEBATES IN THE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF THE FEDERAL CONSTITUTION AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787, at 138 (Jonathan Elliot ed., 2d ed. 1891)
74. [hereinafter DEBATES] (statement of Edmund Randolph on May 31, 1787).
75. The Debates in the Convention of the State of Pennsylvania of the Adoption of the Federal Constitution, reprirtted in 2 DEBATES, supra note 66, at 489 (statement of James Wilson on Dec. 4, 1788).
76. Id. at 196 (statement of Oliver Ellsworth on January 7, 1788).
77. 5 U.S. (1 Cranell) 137, 174 (1803).
78. Vanhorne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 28 F. Cas. 1012, 1015 (CCD. Pa. 1795).
79. The Debates in the Convention of the Commonwealth of Virginia on the Adoption of the Federal Constitution, reprinted in 3 DEBATES supra note 66, at 324-25 (statement of Patrick Henry on June 12, 1788).
80. Yate's Minutes, reprinted in 1 DEBATES supra note 66, at 380 (statement of Luther Martin on Jan. 27,1788) (emphasis added).
81. U.S. CONST, pmbl.
82. Debates in the Congress of the Confederation, From November 4, 1782, to June 21, 1783;
83. and From February 19 to April 25, 1787, reprinted in 5 DEBATES, supra note 66, at 429 (statement of Gouverneur Morris on Aug. 15, 1787).
84. Among the many lawyers-turned-politicians, some are distinguished practitioners but few are noted for constitutional scholarship. Three exceptions prove the rule. President Madison might have been presumed to be faithful to the Constitution if only because he largely wrote the document. Upon appointment as Chief Justice, former President Taft quipped, "I don't remember that I ever was President." Biography of William Howard Taft, The White House, http://www.whitehouse.gov/history/ presidents/williamhowardtaft (last visited May 23, 2009). It's just as well, for whatever his talents as Chief Justice, Taft was considered a failure by the electorate, that soundly rejected his quest for a second tenn-making him the only incumbent President to finish third in a quest for reelection. In the modern era, the most notable, successful politician who has exhibited serious thought about and familiarity with the Constitution is Barack Obama, who was once a professor of constitutional law. But, very few "judicial conservatives" are likely to share. President Obama's views on the Constitution.
85. U.S. CONST, art. III, §1.
86. David Johnston, Hastings Ousted as U.S. Judge by Senate Vote, N.Y. TIMES, Oct. 21, 1989, at 1. Hastings was subsequently elected to Congress in 1992, where he remains to this day.
87. Paulo Prada, Mayor Fights Crime, Finds Trouble, WALL ST. J., Feb. 2, 2009, at A4.
88. Rich Lord, Council Passes Controversial Bill on Stolen Guns, PITTSBURGH POST-GAZETTE, Nov. 24, 2008, available at http://www.postgaze.tte.com/pg/08329/ 930426-100.stm.
89. Editorial, Representation for D.C: Steny Hoyer Shows a Welcome Impatience in the House, WASH. POST, Jan. 28,2009, at A14.
90. Id.
91. Id.
92. Reply Brief to Plaintiffs' Opposition to Defendants' Motion to Dismiss the Complaint and Opposition to Plaintiffs'Motion for Summary Judgment, at 16, Parker v. District of Columbia, 311 F. Supp. 2d 103 (D.D.C. 2004) (No. 03-0213), 2003 WL 24057553.
93. Esrerpts From Interview With Nixon About Domestic Effects of Indochina War, N.Y. TIMES, May 20, 1977, at A16. Had President Nixon made these comments about the Congress, he would have only been describing the rational basis test.
94. Bipartisan Campaign Reform Act of 2002, Pub. L 107-155, 116 Stat. 81 (codified as amended in scattered sections of 2 and 36 U.S.C).
95. Tony Mauro, For McCain, First Amendment Runs 2nd to Campaign Reform, FIRST AMENDMENT CENTER, Oct. 1, 2008, http://www.firstamendmentcenter.org/ analysis.aspx?id=18997.
96. Akhil Reed Amar & Vikram David Amar, Breaking Constitutional Faith: President Bush and Campaign Finance Reform, FINDLAW, Apr. 5, 2002, http://writ.news.findlaw.com/amar/ 20020405.html;
97. see also Rich Lowry, Bush's Broken Prormse, NAT'L REV. ONLINE, Feb. 21, 2002, htt|5://www.nationalreview.com/lowry/lowry022102.shtml.
98. [T]he bill does have flaws. Certain provisions present serious constitutional concerns. In particular, H.R. 2356 goes farther than I originally proposed by preventing all individuals, not just unions and corporations, from making donations to political parties in connection with Federal elections. I believe individual freedom to participate, in elections should be expanded, not diminished; and when individual freedoms are restricted, questions arise under the First Amendment. I also have reservations about the constitutionality of the broad ban on issue advertising, which restrains the speech of a wide variety of groups on issues of public import in die months closest to an election. Statement on Signing the Bipartisan Campaign Reform Act of 2002, 1 PUB. PAPERS 517, (Mar. 27, 2002).
99. Id.
100. One plausible defense of President Bush's behavior that made the rounds in Washington is purely political in nature. Bush wanted desperately to avoid a primary challenge by his rival Senator John McCain in the 2004 election. Vetoing McCain's signature bill would provide the Arizonan something to rally against. Signing the bill into law would diffuse McCain. I cannot vouch for this theory, but the only rational explanation for the President to sign into law a bill he believes to be unconstitutional would be political.
101. McConnell v. FEC, 540 U.S. 93 (2003).
102. Id.
103. George F. Will, Damaging 'Deference', WASH. POST, June 24, 2005, at A31.
104. Timothy Sandefur, The Real Problem With a Living Constitution (Aug. 29, 2005), http://www.positiveliberty.com/2005/08/the-real-problem-with-a-living- constitution.html.
105. Wilkinson, supra note 1, at 254.
106. 410 U.S. 113(1973).
107. See, e.g., Webster v. Doe, 486 U.S. 592, 619 (1988) (Scalia, J., dissenting) ("We have rejected .. .judicial rewriting of legislation even in the more appealing situation where particular applications of a statute are. not merely less desirable, but in fact raise 'grave constitutional doubts.' That, we have said, only permits us to adopt one rather than another pennissible reading of the statute, but not, by altering its terms, to ignore, the legislative will in order to avoid constitutional adjudication.") (citation omitted).
108. See Wilkinson, supra note 1, at 255 ("In both cases [Roe and Heller] the constitutional text did not. clearly mandate the result . . . .");
109. id. at 302 ("Absent the clearest sort of textual mandate, we. should not entrust courts with such life and death decisions.").
110. U.S. CONST, amend. IV.
111. Wilkinson, supra note 1, at 267.
112. Id. at 255.
113. Id. at 257.
114. Judge Wilkinson does not offer any Second Amendment interpretations missing from the Heller briefs.
115. Wilkinson, supra note 1, at 258.
116. Id. at 258-59 (citations omitted).
117. The substantive due process cases approved by Judge Wilkinson imposed the following unenumerated rights against the democratic preferences of various states: a right to interracial marriage, see Loving v. Virginia, 388 U.S. 1 (1967); a right against forced sterilization,
118. see Skinner v. Oklahoma, 316 U.S. 535 (1942); and a right to direct the education of one's children, by sending them to private school,
119. see Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925), or by teaching them a foreign language,
120. see Meyer v. Nebraska, 262 U.S. 390 (1923).
121. Just as Roe's conservative opponents should recognize their argument is not with judicial review, so should they make peace with the concept of unenumerated rights even as they resist the notion that abortion is among those rights. But that is a topic for another day.
122. W.S. Gilbert & Sir Ardiur Sullivan, My Gallant Crew, Good Marring!, reprinted in H.M.S. PINAFORE (Dover Publications 2002) (1878) ("What, Never? No, Never! What, Never? Hardly Ever!").
123. See Wilkinson, supra note 1, at 257-64.
124. RUSH, Freewill, on PERMANENT WAVES (Island Def Jam 1980) (words by Neal Peart).
125. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803).
126. BARNETT, supra note 10, at 5.
127. Wilkinson, supra note 1, at 259.
128. 114- The laws struck down in Heller were enacted pursuant to the District Clause, arguably the broadest congressional power of all-the power to "exercise, exclusive Legislation in all Cases whatsoever" for the seat of government. U.S. CONST, art. I, §8, cL 17. But even this power is not absolute, for the Framers felt compelled to also grant Congress the power to construct military buildings in the District. Id. It can be seriously questioned whether a law banning the private ownership of firearms is within the traditional police power secured by the District Clause, or necessary and proper to that end. The city must have sensed this was an issue, for it claimed the gun ban was sourced in the penumbral emanations of the aforementioned authority for the "Erection of Forts, Magazines, Arsenals, dockYards, and other needful Buildings." Brief for Petitioners at 37-38, District of Columbia v. Heller, 128 S. Ct. 2783 (2008) (No. 07-290).
129. U.S. CONST, amend. IX.
130. U.S. CONST, art. IV, §2; U.S. CONST, amend. XIV, §1.
131. U.S. CONST, amend. X.
132. This is no prescription for anarchy. It would still leave us with a post office. U.S. CONST. art. I, §8, cl. 7.
133. See Nomination of Robert H. Bork to Be Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 100th Cong., (1987) (statement of Robert A. Bork);
134. see also ROBERT BORK, THE TEMPTING OF AMERICA 166 (1997).
135. Wilkinson, supra note 1, at 267.
136. Brown v. Board of Education, 347 U.S. 483 ( 1954), readily comes to mind, as does Steven Spielberg's popular adaptation of The Amistad, 40 U.S. (15 Pet.) 518 (1841), in which the Supreme Court, resisted President Van Buren's arguments to return Africans to captivity as slaves. Underlying American popular culture's obsession widi lawyer and judge TV shows, movies, and books is the expectation that judges will produce justice, even if they must stand up to politicians and powerful interests. One would be hard, pressed to find, among the vast output of legal-centric entertainment, many episodes where a judge is sympathetically portrayed reaching an unappetizing decision out of deference to the political branches of government.
137. 545 U.S. 469 (2005).
138. See id. at 469-70.
139. CASTLE COALITION, 50 STATE REPORT CARD TRACKING EMINENT DOMAIN REFORM LEGISLATION SINCE KELO, (Aug. 2007), http://www.castlecoalition.org/pdf/ publications/report-card/ 50-State-Report.pdf.
140. AP/ABT SRBI, NATIONAL CONSTITUTION CENTER POLL, (Aug. 22-29, 2008) (Question 14C).
141. Wilkinson, supra note 1, at 267.
142. Jeffrey M. Jones, Americans in Agreement With Supreme Court on Gun Rights, GALLUP, June 26, 2008, http://www.gallup.com/poll/108394/Americans- Agreement-Supreme-Court-Gun-Riglits.aspx.
143. Press Release, The Harris Poll, Second Amendment Supreme Court Ruling Matches With Public Opinion From the Harris Poll, (June 26, 2008), http://www.harrisinteractive.com/ harris-poll/index.asp?PID-922.
144. Voters Split on Need for Stricter Gun Control Laws, but Oppose City Handgun Ban, RASMUSSEN REPORTS, June 22, 2008, htt://www.riismusserireports. coiiVpublic-cotitent/politics/issues2/articles/voters- split-on-need-for- stricter-gun-control-laws-but-oppose-city-handgun-ban.
145. Supreme Court Viewed More Favorably Following Gun Ruling, supra note 15.
146. 1 ST. GEORGE TUCKER, BLACKSTONE'S COMMENTARIES app. at 308 (Lawbook Exchange, Ltd. 1996) (1803).
147. Wilkinson, supra note 1, at 271.
148. Id.
149. Id. at 268.
150. Id.
151. District of Columbia v. Heller, 128 S. Ct. 2783, 2827-31 (2008) (Stevens, J., dissenting).
152. See, e.g., id. at 2792 (majority opinion) (citing Bill of Rights, 1689, 1 W. & M., c. 15, §4 (Eng.)) ("[N]o Papist... shall or may have or keep in his House ... any Arms....")); id. at 2792 n.7 (collecting examples of uses the phrase "keep amis" in a civilian context); id. at 2795 n.10 (collecting examples of uses of the phrase "bear arms" in a civilian context). For an exhaustive work recounting the commonplace usage of "bear arms" in a civilian context, also referenced by the Heller majority, see Clayton E. Cramer & Joseph Edward. Olson, What Did 'Bear Arms' Mean in the Second Amendment?, 6 GEO. J.L. & PUB. POL'Y 511 (2008).
153. Heller, 128 S. Ct. at 2828-29 (Stevens, J., dissenting).
154. Id. at 2801 (majority opinion).
155. Wilkinson, supra note 1, at 270.
156. Save for one obscure commentary observing that the Second Amendment "probably" is limited to guaranteeing military activity, yet conceding that "[a] different construction however has been given to it." Heller, 128 S. Ct. at 2807 (citing BENJAMIN L. OLIVER, THE RIGHTS OF AN AMERICAN CITIZEN 177 (1832)). The concession was necessary. By the time of its publication, the Early Republic's constitutional giants, including St. George Tucker, Joseph Story, and Second Amendment-ratifier (as a member of the Pennsylvania legislature) William Rawle, had endorsed the individual rights construction.
157. TUCKER, supra note 131.
158. Paul Finkelman& David Cobin, Introduction to 1 TUCKER, supra note 131, at xii.
159. Heller, 128 S. Ct. at 2805.
160. Id. at 2839 n.32 (Stevens, J., dissenting).
161. Id. at 2805 n.19 (majority opinion).
162. 47 WM. & MARY L REV. 1123 (2006).
163. See David T. Hardy, The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights, 103 NW. U. L. REV. COLLOQUY 272, 277-79 (2008). For another work laying bare Saul Cornell's highly selective use of Tucker,
164. see Stephen P. Halbrook, St. George Tucker's Second Amendment: Deconstructing "The True Palladium of Liberty," 3 TENN. J.L POL'Y 120, 198-99 (2007) (noting that, when it comes to interpreting Tucker, "[a]s usual, Cornell avoids the embarrassing quotations," and that "Cornell's rendition of Tucker... is woefully short on Tucker's actual words").
165. Hardy, supra note 148, at 278.
166. This error, which earlier appeared in Cornell's book on the topic, SAUL CORNELL, A WELLREGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGINS OF GUN CONTROL IN AMERICA (2006), was pointed out in an otherwise favorable book review by historian Robert Churchill: [T]he passages of the manuscript draft that Cornell discusses are not. Tucker's gloss on the Second Amendment. They are instead his gloss on the militia clauses of the original Constitution. On Tucker's gloss on the Second Amendment itself, both in the 1790s manuscript and in the 1803 published version, Cornell is silent. I hope Cornell will take the opportunity to explain his decision to pass over this material.
167. Robert H. Churchill, Three Steps Forward, One Step Back, H-NET REVS., Sept. 2007, http://www.hnet.org/reviews/showrev.php?id=13574 (reviewing CORNELL, supra).
168. It might be useful to note that Cornell serves as the Director of something called "The Second Amendment Research Center," created in 2002 with a $399,967 grant by the Joyce Foundation. Citation to Newly Published Authority Per Rule 28(j), at 2,
169. Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007) (No. 04-7041) (citing the. Joyce Foundation website).
170. The. Second Amendment Research Center's website now claims it is "supported by a generous grant from the Joyce Foundation." Second Amendment Research Center, http://secondamendmentcenter.com/ about-us.asp (last visited May 26, 2009).
171. The Joyce. Foundation is the nation's preeminent and perhaps most lavish sponsor of extremist gun prohibitionist groups and publications, including the Violence Policy Center, Handgun Free America, and Legal Community Against Violence. The Joyce Foundation, Grant List, http://www.joycefdn.org/Programs/ GunViolence/GrantList.aspx (last visited Mar. 31, 2009).
172. It is unlikely that anything funded by the. Joyce Foundation, or produced by its "Second Amendment Research Center," would conclude the Second Amendment has any meaning as an individual right. I do not question the Joyce Foundation's logic in funding work that supports its political objectives, nor would I fault Cornell for accepting support from sympathetic donors. Indeed, it is only natural and proper that people seek out and support those with whom they agree. The money does not alter the merits, if any, of their work. My point is only that political advocacy should not be taken at face value as neutral scholarship, regardless of the manner in which it is presented.
173. Wilkinson, supra note 1, at 271 (footnotes omitted).
174. 92 U.S. 542 (1875).
175. 116U.S. 252(1886).
176. District of Columbia v. Heller, 128 S. Ct. 2783, 2843 (2008) (Stevens, J., dissenting).
177. Id.
178. 307 U.S. 174(1939).
179. See Heller, 128 S. Ct. at 2813-16;
180. id. at 2822-24 (Stevens, J., dissenting).
181. Wilkinson, supra note 1, at. 271.
182. 410 U.S. 113(1973).
183. Wilkinson, supra note 1, at 254.
184. Posting of David A. Nakamura to D.C. Wire, http://voices.washingtonpost. com/ dc/2008/06/reaction-to-gun-ruling.html (June 26, 2008,10:47 EST).
185. Sense of the Council on Future Handgun Regulations Resolution of 2008, (D.C. 2008), available at http://www.dccouncil.us/images/00001/20080716085012. pdf.
186. Press Release, D.C. Council Chairman Vincent C Gray, Council Chairman Vincent Gray Reaction to Heller Ruling (June 26,2008), http://www.dcwatcli.com/ issues/gun060826c.htm.
187. Press Release, D.C. Councilmember Muriel Bowser, Statement of Ward 4 Councilmember Muriel Bowser in response to United States Supreme Court Decision in Heller v. District of Columbia (June 26, 2008), http://www.dcwatch.com/ issues/gun080626f.htm.
188. S.B. 17-843, 2008 Leg., 37th Sess. (D.C. 2008), avouable at http://www.dccouncil.us/images/ 00001/20081210115303.pdf.
189. U.S. CONST, amend. IV.
190. U.S. CONST, amend. I.
191. See, e.g., McConnell v. FEC, 540 U.S. 93 (2003) (upholding the constitutionality of the federal McCain-Feingold Act, which places restrictions on political donations and their solicitation, as well as campaign advertising);
192. Buckley v. Valeo, 424 U.S. 1 ( 1976) (upholding the. constitutionality of amendments to the Federal Election Campaign Act that set limits on campaign contributions).
193. Wilkinson, supra note. 1, at 275.
194. Id. at 288 (quoting District of Columbia v. Heller, 128 S. Ct. 2783, 2846 n.39 (2008) (Stevens, J., dissenting)). This viewpoint ignores the voices of millions of Americans who believe the political process in this area failed by violating their Second Amendment rights.
195. THE FEDERALIST NO. 10, at 44 (James Madison) (George W. Carey & James McClellan eds.,2001).
196. W. Va. State Bd. of Educ. v. Baniette, 319 U.S. 624, 638 (1942).
197. United States v. Kirschenblatt, 16 F.2d 202, 203 (2d Cir. 1926).
198. THE FEDERALIST NO. 46, at247 (James Madison) (George W. Carey & James McClellan eds,2001).
199. CAESAR BONESANA, MARQUIS BECCARIA, AN ESSAY OF CRIME AND PUNISHMENTS, 101-02 (Richard Bellamy ed., Richard Davies, et al. trans., 1995) (1764).
200. John Adams, Adams Argument for the Defense, reprinted in 3 LEGAL PAPERS OF JOHN ADAMS 242 (L. Kinvin Wroth & Hiller B. Zobel eds. 1965).
201. BECCARIA, supra note 174, at 101.
202. Wilkinson, supra note 1, at 265.
203. See, e.g., Nunn v. State, 1 Ga. 243, 251 (1846) (striking down an 1837 act allowing the open carrying of weapons);
204. In re Brickey, 70 P. 609 (Idaho 1902) (striking down a law involving the open carry of weapons).
205. Sense of the Council on Future Handgun Regulations Resolution of 2008, (D.C. 2008) available at http://www.dccouncil.us/images/00001/20080716085012. pdf.
206. U.S. DEP'T OF HEALTH & HUMAN SER VS., CTR. FOR DISEASE CONTROL, NATIONAL VITAL STATISTICS REPORTS DEATHS: FINAL DATA FOR 2005, at 42 tbl. 12, available at http://www.cdc.gov/nchs/data/nvsr/nvsr56/nvsr.56-10.pdf (last visited Dec. 31, 2008).
207. Nat'l Qr. for Injury Prevention &. Control, WISQARS Injury Mortality Reports, 1999200.5, http://webappa.cdc.gov/sasweb/ncipc/mortratelO-sy.html (last visited Dec. 31, 2008) (using tool).
208. 60 U.S. 393 (1857).
209. Id. at 417 (emphasis added).
210. 339 U.S. 763 (1950).
211. Id. at 784 (emphasis added).
212. 410 U.S. 113(1973).
213. U.S. CONST, amend. XIV, §1, cl. 2.
214. 32 U.S. (7 Pet.) 243 (1833).
215. Barronexrel. Tieman, 32 U.S. (7 Pet.) at 250.
216. Michael Anthony Lawrence, Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses, 72 Mo. L. REV. 1, 18-19 (2007).
217. AKHIL REED AMAR, THE BILL OF RIGHTS 182 (1998).
218. CONG. GLOBE, 39th Cong., 1st Sess. 2765-66 ( 1866) (emphasis added).
219. District of Columbia v. Heller, 128 S. Ct. 2783, 2811 (2008)
220. (citing CONG. GLOBE, 39th Cong., 1st Sess., 1182(1866)).
221. See the discussion in Lawrence, supra note 190, at 22-27.
222. 83 U.S. (16 Wall.) 36, 73-74 (1873).
223. In The Slaughter-House Cases, the Supreme. Court held that only rights flowing out of United States citizenship are protected from state interference by the Privileges or Immunities Clause, such as the right to access the navigable waterways of the United States, or the right to diplomatic protection abroad.
224. Id. at 79-80.
225. There is no evidence that this was either the intent or original public meaning of the clause, and it is silly to suggest that violation of such rights prompted the Fourteenth Amendment or the Civil War that preceded it.
226. I will not here, review the substantive due process arguments for incorporating the Second Amendment, although they are substantial and consistent with precedent. In arguing for incorporating the Second Amendment as against the. states, I litigate both the Privileges or Immunities and the Due Process Clause arguments.
227. Wilkinson, supra note 1, at 311-22.
228. Id. at 314.
229. Marbury v. Madison, 5 U.S. (1 Cranell) 137, 177 (1803).