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06/17/2016

Michael Dorf on Originalism and Concealed Carry (with my Comments)
Michael Ramsey

Michael Dorf at Dorf on Law: Second Thoughts About the Ninth Circuit's Second Amendment First-Order Originalism. It begins:

Late last week, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit rejected a Second Amendment challenge to a California law that requires one to demonstrate "good cause" to county officials in order to obtain a license to carry a concealed firearm. The ruling,Peruta v. County of San Diego, is notable in part for what it does not decide. The plaintiffs argued that the SCOTUS rulings in District of Columbia v. Heller and McDonald v. City of Chicago protect an individual right to possess firearms for self-defense that applies outside as well as inside the home, and that in combination with another California law generally forbidding open-carry of firearms, the good-cause requirement operates as a de facto ban on public-carry for anyone who cannot show a special reason for a concealed-carry permit.

The en banc opinion by Judge Fletcher does not exactly reject that argument but concludes that it is not presented because the plaintiffs did not challenge the law restricting open-carry. [ . . . ] The court then concludes that there is no right to carry a concealed firearm.

Professor Dorf then discusses Judge Fletcher’s historical methodology:

The opinion carefully parses sources dating back to the end of the thirteenth century to show that there has never been a right to carry a concealed firearm: not in England; not in colonial America; not at the Founding; not in the period leading up to the adoption of the Fourteenth Amendment; and not since. With respect to the state of the law when the Fourteenth Amendment was adopted, the court concludes that "an overwhelming majority of the states to address the question — indeed, after 1849, all of the states to do so — understood the right to bear arms, under both the Second Amendment and their state constitutions, as not including a right to carry concealed weapons in public."

Judge Fletcher is not by any means a thoroughgoing originalist, but Heller and McDonald purport to find the individual right to possess firearms in the home in the historical understandings of the Second and Fourteenth Amendments, so Judge Fletcher turns the tables on the proponents of gun rights: If history is the basis for finding a right to firearm possession in the home, then it is also the basis for rejecting a right to carry a concealed firearm in public.

The post moves to discuss first-order originalism and its place in Second Amendment interpretations:

But do Heller and McDonald really command what we might call first-order originalism in all Second Amendment cases? By first-order originalism I mean an approach that seeks to answer every question about the scope of the Second Amendment (or the Fourteenth, when state and local laws are at issue) by a historical test.

There is some support for first-order originalism in Heller itself. For example, in discussing permissible limits on the right to possess firearms, the Heller opinion states:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

[I]f the longstanding-ness of limits on firearms possession by felons or on bringing firearms into sensitive places like government buildings validates those limits, then one can sensibly argue that the longstanding-ness of prohibitions on concealed carrying of firearms validates a permit requirement to carry a concealed firearm.

And yet there is something wrong with first-order originalism even for a right that is justified in originalist terms. [ . . . ] The question is not to be resolved by looking to history as a first-order matter. Rather, history establishes the scope of the right as a semantic matter: the Second Amendment covers weapons "in common use," but in giving content to "common use" courts should ask what weapons are in common use today, not what weapons were in common use in 1791 or 1868.

I think Heller and McDonald were wrongly decided. Moreover, I'm not an originalist of any sort. However, I do think that if one is going to be an originalist, semantic originalism makes a lot more sense than first-order originalism. Many questions will be unanswerable by first-order originalism, because they only arise in modern circumstances. Moreover, fashioning sensible doctrine requires the courts to make the law cohere, which is not always possible using a strictly historical test.

My thoughts: I'm not at all following this distinction between "semantic originalism" and "first order originalism" (plus I have a hard time not thinking of "first order" originalism as a Star Wars reference).   It seems to me that the straightforward question is whether the right to "keep and bear Arms" is "infringed" by concealed carry restrictions.  And since concealed carry restrictions were known in the founding era, we can assess that question by asking what the founding era thought of concealed carry restrictions.  That's basically the way Judge Fletcher framed the issue.  Whether he got the right answer or not is a different matter, but David Kopel thinks he did, and I would not argue with Professor Kopel on this issue.  

Suppose that it's right that concealed carry restrictions were common in the founding era and no one thought they infringed any constitutional right.  Is Professor Dorf suggesting that they nonetheless could be unconstitutional today?  I can't imagine how, as an originalist matter, that could be so.  Perhaps if the text of the constitutional restriction were wholly incompatible with the founding era belief, we would say that people in the founding era had made an error.  But here the language is at best ambiguous on the right to concealed carry (even if one thinks "bear[ing] Arms" means carrying them in public).  If the language can be read in a way that comports with the consensus founding-era understanding of it, that seems pretty conclusive to me.  I'd be surprised if many actual originalists disagree with this analysis, whatever Professor Dorf thinks they should think.