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UPDATE April 28, 2008
The argument about guns and commas in the Supreme Court is over and we await its decision about an individual right to bear arms which will probably arrive in late June. It won’t be the end of the argument, of course; Supreme Court decisions seldom are, but it will immediately be hailed as the best decision, as the worst decision, in the history of the Court. It will be neither. Slaves won’t remain in slavery because of it (Dred Scott), the economy won’t be caged for a generation (Lochner), concentration camps on American soil for American citizens will not be countenanced (Korematsu), and George Bush won’t be made president by five privileged people appointed to the Supreme Court by his father and his father’s predecessor.(Bush v. Gore)
If, as today seems likely, the Court rules in favor of an individual right to bear arms, the citizens who care deeply about the right will rejoice and the citizens, far less pugnacious, who think the right relates only to the militia will be saddened and angered. But not much will change because nothing the Court does will change the culture which owns so many guns. The District of Columbia and other crime-plagued urban areas will have to figure out new ways to limit handguns, college students and others will be shot by crazed people and federal judges will suddenly be in the gun control business. And the National Rifle Association will begin to lose members, money, and influence. Having won, for a generation or so, the personal right, it will no longer have a reason to exist. Oh, it will hang on for awhile, rather like horses after the invention of the car or trains after the invention of airplanes, but its relevancy will fade and so will it.
If I were a person of upstanding moral character I would just stop writing about the case. More than enough has already been said — and nothing with more humor than Dalia Lithwick here — but I can’t help myself.
The oral argument, which you can read in its entirety here, struck me as superficial. Chief Justice Roberts was almost cavalier, feigning disinterest in what standard the Court would apply to gun control laws after an individual right is established.
I’m not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don’t know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?
And he was even more cavalier about the handgun ban itself, professing to see nothing about it that could be reasonable.
CHIEF JUSTICE ROBERTS: What is — what is reasonable about a total ban on possession?
Justice Scalia, from whom we may expect words about the commas and the grammar of the amendment, simply said,
But why isn’t it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people’s weapons — that was the way militias were destroyed. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.
Justice Scalia was vigilant in protecting Heller’s young, inexperienced lawyer from mistakes. For instance, Justice Breyer asked if was unreasonable for a city with a high crime rate to say, “No handguns here”?
JUSTICE SCALIA: You want to say yes.
JUSTICE BREYER: Now, why?
JUSTICE SCALIA: That’s your answer.
Unsurprisingly, the young lawyer responded, “Yes.” Later in the argument Justice Souter asked Heller’s lawyer a different question. Again Justice Scalia sprang to the rescue:
JUSTICE SOUTER: Well, can they consider the extent of the murder rate in Washington, D.C., using handguns?
MR. GURA: If we were to consider the extent of the murder rate with handguns, the law would not survive any type of review, Your Honor.
JUSTICE SCALIA: All the more reason to allow a homeowner to have a handgun.
MR. GURA: Absolutely, Your Honor.
Only once did Justice Scalia fail to aid Heller’s lawyer. At the very end of his argument Justice Stevens asked him if a university could outlaw guns on its campus. The lawyer’s response was,
We would have to do some fact finding. . . It’s something that might be doable, but again, that’s so far from what we have here. We have here a ban on all guns, for all people, in all homes, at all times in the Nation’s capital. That questionably is too broad and too sweeping under any level of review.
Justice Kennedy, removing all doubt about how he will vote, voiced his conviction that everyone has a right to guns to protect ourselves from wolves and grizzly bears. No, I did not make that up. Here is Justice Kennedy from the argument.
JUSTICE KENNEDY: [To D.C.’s lawyer] It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?
JUSTICE KENNEDY: [To the Government’s lawyer]So in your view this amendment has nothing to do with the right of people living in the wilderness to protect themselves, despite maybe an attempt by the Federal Government, which is what the Second Amendment applies to, to take away their weapons?
JUSTICE KENNEDY: [To Heller’s Lawyer] I want to know whether or not, in your view, the operative clause of the amendment protects, or was designed to protect in an earlier time, the settler in the wilderness and his right to have a gun against some conceivable Federal enactment which would prohibit him from having any guns?
That, of course, is nonsense. Just as no grizzlies roam the streets of Washington, D.C. today, no one in the 18th or the 19th Century would have conceived the idea of handgun control. That does not mean; however, the Founders thought that having one was a sacred right. It could mean that or it could mean they just didn’t see the need to control handguns. Or to explicate their use of commas.
This article about recent discoveries of new planets outside our solar system raises the question: How important are our current events? How important are we?
Oral argument in the 2nd Amendment case is today. I have been remiss in not summarizing the last brief filed by the district of Columbia. On the other hand, you haven’t missed much. The brief was scattershot and left me with the feeling that a bunch of lawyers wrote a bunch of paragraphs, strung them together, and sent the thing off to the printer. As an example, the brief does — in passing — note that the first clause of the Amendment is not a preamble but a coherent part of the Amendment. This is one of the strongest arguments D.C. has. The lower court and all the briefs favoring an individual right make that assumption, glissading over the fact that it reads an entire clause out of the Constitution.
We’ll see if it matters. Oral argument often goes down unpredictable byways but, if the Court is about to hold that the Constitution accords individual Americans the right to bear arms, it will have to deal with the Amendment the way it was written and will not ignore the first clause.
Both an oral recording and a written transcript will be released after the argument is concluded. Scotus will be blogging live based on the C-SPAN feed. The Golden State will be back with its take on the argument but not as fast as the 400 million pundits who will offer instant analysis today.
I doubt we’ll hear much about the ablative in the oral argument. We may hear something about other Amendments, including the Ninth, Tenth and Fourteenth. There are many ways for the Court to finesse the fundamental issue. Courts are supposed to avoid constitutional issues when non-constitutional means of resolving issues are present. “Judicial Restraint” and “judicial humility” are labels usually associated with the concept. We’ll see. . . .
Given the interest in this case, the only safe assumption is that we Americans must really care about our guns. Certainly more than we care about the English language.
We left our maiden gagged and bound to the railroad tracks and a train coming. The “originalist” judge left her there, determining that the Constitution said nothing which forbids tying maidens to railroad tracks. He wasn’t happy about it. In fact, he was personally greatly distressed, but the Founding Fathers tied his hands by omitting to outlaw the practice — as they failed to omit many pernicious practices.
Not so fast. The first objection originalists raise to living constitutionalists is that they are unmoored from the text and the law; therefore, float freely around, doing whatever they feel like. This objection, to continue the metaphor, is unanchored. No judge, however liberal or conservative, feels uncabined by the law. Here is Judge Alex Kozinski of the 9th Circuit Court of Appeals; conservative republican appointed by President Reagan on the point, “It’s when you are moved by ideology to ignore the law in order to reach a result you like that you step out of bounds.” Good judges of whatever political persuasion don’t step out of bounds.
Living constitutionalists know that their jobs require fealty to the original meaning and principles underlying the Constitution. They don’t get to make it up as they go along. The text of the Constitution and subsequent interpretations of it place limits on their free will. (whether or not the universe does.)
Nonetheless, this judge is not going to pass the buck to the Founding Fathers.
In the first post of this series I mentioned Judge Richard Posner of the 7th Circuit Court of Appeals; appointed by Reagan, unimpeachably conservative and no judicial activist. After becoming a federal judge he wrote an article entitled, “What am I? A Potted Plant?” In it, he took originalists to task, writing:
In considering whether to shrink what are now understood to be constitutional safeguards to the slight dimensions implied by a literal interpretation of the Constitution, we should be careful to have a realistic, not an idealized, picture of the legislative and executive branches of government. . . .
The framers of a constitution who want to make it a charter of liberties . . . face a difficult choice. They can write specific provisions and thereby doom their work to rapid obsolescence, or they can write general provisions, thereby allowing substantial discretion to the authoritative interpreters, who in our system are the judges.
For our judge, with the train clearly in sight and coming fast, the Constitution’s silence about tying people to railroads does not mean that it is constitutional. But even he has to think this through carefully. He can’t just do whatever he thinks best. The words and underlying principles are only the beginning of his analysis.
Oh my. The train is thundering down on her now and the judge is still thinking. “The Constitution says nothing about maidens tied to railroad tracks. But it does outlaw cruel and unusual punishments. Or, even though the Constitution says nothing about privacy, maybe she has a privacy right not to be smashed by a train and Congress has unconstitutionally interfered with that. Or she may have a liberty interest which extends outside her home. Certainly her liberty is restrained right now.”
These theoretical niceties of the law professors and the judges matter because the scope of the constitutional protection of our fundamental rights matter. If those rights are literally limited by the Constitution’s silence, then the government can do to us a great deal more than it can if those rights are broadly defined. It can tie maidens to railroads. The scope of our fundamental liberties as citizens of the United States depends upon which theory predominates in the Supreme Court.
So, he rescues her. True, he does what he wants; but not because that is what he wants. He does it because, under his view of the law, he has to. That the rescue comports with his personal desires is a coincidence and no more. He has been faithful to the living constitution; just like the originalist judge who wanted to save her, but did not, was faithful to the dead constitution. Theories matter.
The 5:10 is due and there is a damsel in distress; a villain — let’s call him Snidely Whiplash — has tied an innocent maiden to the railroad tracks. A federal judge happens by. What is he to do? 
Well, he can’t just rush to the maiden and untie her. That wouldn’t do at all. First he must decide why and under whose authority she has been placed there. Perhaps Congress ordered it. A judge isn’t free to rescue her unless Congress acted unconstitutionally. Or maybe the damsel was placed in her perilous plight by an evil bureaucrat who put her there pursuant to an agency decision. Shall the judge defer to the agency’s order or shall he rescue her? Unless the Constitution literally says otherwise, an originalist ought to defer, at least if he really believes what he says.
Is that a train whistle I hear in the distance?
We’ll assume Snidely tied her to the tracks pursuant to the “Damsel in Distress” Act of 2008, passed by Congress and duly signed into law by President LeGree. The judge is only free to rescue her if the Act is unconstitutional. Whether she lives or dies depends on the judge’s judicial philosophy. Is it a living constitution or a dead one? See what mischief a little theorizing by law professors can cause?
Yep. That’s a train coming. The maiden would be screaming except she’s been gagged. Surely she has a First Amendment right to scream? Couldn’t the judge at least remove the gag? Well, maybe. But there might be a gag order in place and it might be constitutional.
If the judge is an originalist he believes that the original understanding of the words in the document limits the universe of what is or is not constitutional. He takes it literally. Justice Scalia is an originalist. He was out on a speaking raid last week. According to newspaper accounts he said, “The Constitution is not a living organism. It’s a legal document that says some things and doesn’t say others.” The things that it doesn’t say are not for the courts; they are for the other branches of government.
Well. The Constitution says nothing about damsels tied to railroad tracks. For the originalist judge that is the end of the analysis. He rides off, feeling badly no doubt, but his hands are tied as tightly as hers. “Torture,” he thinks to himself as he rides off, “Torture may be a bad thing but it is not unconstitutional. The Constitution is silent about torture. Not every bad thing — and a maiden tied to the tracks is a bad thing — is unconstitutional.”
Her only hope now is a judge who accepts the theory of a living constitution, one which incorporates evolving ideas beyond the literal meaning of the words at the time the Constitution was written. (Or enacted) But even that kind of a federal judge may not feel free to save her.
 Most federal judges are male. No sexism is intended by choosing a male. Besides, when did a woman tie a man to the tracks?
When they lack any thing better to do, law professors theorize. Usually this is harmless and does no lasting damage, like adolescents reading Ayn Rand or Ian Fleming.
Sometimes though, mischief results. This has been the case with theorizing about the United States Constitution. Its words must be interpreted by judges and applied to actual cases and controversies arising two centuries after its enactment. Two basic schools of thought exist about how to do that: The living constitution versus the dead one.
People who believe in the dead constitution are called originalists. They insist the words of the Constitution should be interpreted according to the meaning they had at the time they were enacted. These days most are politically conservative although that is not strictly necessary. They are not to be misconceived as strict constructionists who are also in the dead camp. Nor, god forbid, are they to be confused with Judge Richard Posner who, whatever else he may be, is neither an originalist nor a potted plant.
Adherents to the living constitution believe, with Justice Brennan, “It is arrogant to pretend that from our vantage we can gauge accurately the intent [meaning] of the Framers on the application of principle to specific, contemporary questions.” The living constitution is a document of general provisions, dependent upon contemporary understanding to give those provisions concrete meaning.
I am oversimplifying today and do not wish for you to think that these two categories of theory — which splinter into hundreds of branches because law professors have a lot of time — are all that exist. For instance, some originalists concern themselves with what the Founding Fathers thought they were saying, others believe the only thing that counts is what the voters who ratified the Constitution thought. Explaining all the theories would take a million words. I would quit writing long before I finished and you would quit reading long before I quit writing.
These theoretical distinctions matter; the judiciary, especially the federal judiciary, purports to decide cases based on them. That they decide cases based on much more than theory seems obvious to many observers, but not to the judges themselves. Supreme Court justices and many appellate judges often assert that they don’t care who wins a particular case before them, only the rule of law they will pronounce and how it will affect future cases. Some, like Justice Holmes, profess not to be interested in “outcomes.” Holmes wrote his friend Harold Laski,“If my fellow citizens want to go to hell, it is my job to help them get there.” The modern day equivalent? Justice Scalia’s comment that federal judges ought to rule with a stamp engraved, “Stupid, but constitutional.” Judges — and law professors — enthralled by theory feign disinterest when they discover legal maidens tied to the tracks and the 5:10 due any minute.
Next time we’ll look at some of those maidens. (Part II) That will be followed by Part III.
 These two camps derive from an older legal debate started by an earlier generation of law professors without enough to do. That debate was “formalism” v. “realism.”
We’ve had a brief respite from guns but the case is firing up again. Oh. I’m so sorry. I wonder if the 2nd Amendment protects puns and guns.
The District of Columbia’s brief is due tomorrow. (Tuesday) Walter Dellinger, the District’s lawyer who will argue the case and whose name appears at the top of the briefs, has been busy lately. He argued on behalf of Exxon last week in the Exxon-Valdez punitive damages case and had another argument earlier in February.
Oral argument in the gun case occasioned some lawyer maneuvering recently. Mr. Heller’s lawyers wanted to give the state of Texas 10 minutes of their oral argument time. The Court denied that request. The Solicitor General’s office asked for and got 15 minutes of time to argue the government’s position. (In favor of an individual right but one subject to much regulation.) The Court, as it commonly does when the government asks for argument time, granted that motion.
That means that advocates for the “individual” right to bear arms will have 45 minutes of oral argument time. (30 for Mr. Heller, 15 for the government.) The “collective” rights position will get 30 minutes.
In what is one of the great advances of the 21st Century, like nitrogen-bagged salads, transcripts of oral arguments are now available the same day as the arguments. In addition the Court, begrudgingly, sometimes allows tape recordings to be released the same day and I anticipate it will do so this time.
I’ll be back to summarize the Heller reply brief — the last one to be filed in the case — as soon as I am able. I’ll aim to be accurate and not take any pot shots. Oh, shoot! More puns — I’m sorry.
UPDATE OF THE UPDATE – March 4,2008
The Court today announced that it agreed with this blog entirely and will release the audio tape of the argument shortly after the argument is concluded. Why, you may ask, not just broadcast it live? Well. As I’ve said before, courts are the most conservative of political institutions. The Supreme Court is waiting to see if radio really catches on.
I have little patience with local news broadcasts. They are always trying to scare us about something or the other. But sometimes, it backfires.