Constitutional Law

Good interview on Heller ruling

Prof. Adam Winkler, UCLA Law, in the National Journal. It's quite detailed, does a great job of outlining the legal strategy (which was as fine a bit of strategic work as I've ever seen in a court) but here's a few high points:

Q: Justice Stevens lamented in his dissent that the court's decision overturns a longstanding precedent. Do you think the Heller decision represents a huge departure from previous decisions?

Winkler: Yes and no. It is a huge departure from the over 40 cases of federal court decisions interpreting Miller to protect the state militia and only the state militia and not to have any impact on an individual right to bear arms for private purposes.... On the other hand, the Supreme Court case law was pretty weak. There had only been that Miller case.... One side in the case -- [Jack] Miller, the defendant -- didn't even appear in the Supreme Court, refused to file a brief. All they had was one perspective -- the government's perspective -- on that case.... Prior to Miller there had been several decisions that had not been Second Amendment cases, but the court had referred to the Second Amendment as protecting an individual right to bear arms. So, I think that the Supreme Court precedent was not all that strong. But nonetheless, the legal rule was strongly recognized in the federal courts in general.

Q: Much of the literature on Heller talks about this case being a triumph for "originalism" or an originalist interpretation of the Constitution. Can you talk a little bit about the concept of originalism and how it applies in this case?

Winkler: Well, originalism is basically the idea that you'll define the meaning of a constitutional provision by reference to the original public understanding of the provision -- what the ordinary person would have understood that provision to mean in its time -- in contrast with living constitutionalism, the idea that these provisions evolve and keep up with changes in the underlying society.

Certainly, in one sense this case marks the triumph of originalism. There were over 70 amicus briefs filed in the case. Almost all of them employed originalist methodology to define what the right protected by the Second Amendment was. The Supreme Court goes on for pages and pages and pages parsing the history of the Second Amendment and what the framers and the American people might have understood the provisions to mean at the time. And even the dissent talks in originalist terms about what the intention of the framers was.

However, I think that the majority opinion by Justice [Antonin] Scalia departs radically from originalism where it really counts and where it really matters. The real question about the Second Amendment is what laws are prohibited and what laws are allowed under that constitutional provision. That's where the Second Amendment rubber hits the road. And on this question the court eschews originalism and focuses on what seems to me like living constitutionalism. The court says, 'Well, we don't mean to call into question longstanding bans on felons in possession of firearms or bans on guns in sensitive places or restrictions relating to the purchase and sale of weapons.' And the court also refers to an earlier opinion that bans on dangerous and unusual weapons are not barred by the Second Amendment. But all of these things are stuff that comes not from the original public meaning of the Second Amendment but from the traditions of American law since then. These kinds of laws are products of later generations, not of the founding generation.

Q: The New York Times wrote that with this decision the court "began writing a new chapter of constitutional law." Do you agree?

Winkler: I do, but I don't.... The idea that the right to bear arms is somehow some new right seems to me totally far-fetched. The New York Times is right, there is a new chapter of constitutional law being written -- a Second Amendment chapter. But, that said, the "right to bear arms" chapter has been written over the last 200 years. Almost every state in the union recognizes an individual right to bear arms for private purposes under their state constitutions.... Many states put these provisions in their original founding constitutions; other states have more recently added them. But it's a very well established constitutional right that individuals have under American constitutional law, broadly defined to include the American constitutional tradition at the state level.

There have been hundreds of cases challenging gun control laws at the state level, and it's always been true, despite what all of the extremists say in the gun debate, that we've had an individual right to bear arms and we've had reasonable gun control regulations. And they've coexisted peacefully with occasional controversies over particular kinds of bans. But the truth is that courts are not going to allow guys with bazookas to wander down Pennsylvania Avenue, and they're also not going to allow government to completely disarm the people. Because that right to bear arms is part of the American tradition. So is it a new chapter? Yeah, there's going to be a lot more cases. There's a Second Amendment chapter. But... you might think of this as just one more story in a larger chapter about the right to bear arms in American constitutional law.

Full post as published by Of Arms and the Law on July 17, 2008 (boomark / email).