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35 posts from October 2017

10/31/2017

Frederick Mark Gedicks: Lawrence Solum and the Thesis of Immaculate Recovery
Michael Ramsey

Frederick Mark Gedicks (Brigham Young University - J. Reuben Clark Law School) has posted It's a Wonderful Originalism! Lawrence Solum and the Thesis of Immaculate Recovery (DPCE [Diritto Pubblico Comparato ed Europeo] Online 31:3 (Oct. 2017), 653-60) on SSRN. Here is the abstract: 

Part of an online symposium on Professor Lawrence Solum's account of originalism, this essay criticizes Solum's implicit “thesis of immaculate recovery.” This thesis presupposes that constitutional meaning exists in the past as an object, and can be recovered in its pristine objective form, untouched by concerns of the present. The essay argues instead that the meaning produced by originalist method is neither immaculate nor even a recovery, and that present concerns are not obstacles to understanding the past, but the very ground of that understanding. It uses a classic American film, "It's a Wonderful Life," to illustrate the argument.

Without undertaking to speak for Professor Solum, I would say that this essay substantially overstates the claims of most originalist scholars and practitioners. 

(1)  Originalism does not "presuppose that constitutional meaning exists in the past as an object" in all cases.  Originalism presupposes that constitutional meaning exists in the past as an object in at least some cases.  Originalism is happy to concede that some constitutional phrases may be (as Judge Bork famously said) "inkblots" with no discoverable meaning, or (more commonly) that some constitutional phrases are fatally vague or ambiguous in their application to some circumstances (while being clear enough as applied to others).  While originalism does presuppose that at least some constitutional phrases had a fixed meaning in the past, this is not a radical presupposition.  We commonly presuppose this, as to words written in the past, whenever we discuss the historical meaning of written documents.  And, more to the point, we commonly presuppose this, as to constitutional phrases, such as the direction that there be one President elected every four years and that there be two Senators from each state.

(2) Originalism does not presuppose that "constitutional meaning .... can be recovered in its pristine objective form, untouched by concerns of the present."  To the contrary, originalism (if done right) is sensitive to the very legitimate concerns that (a) even where there was an objective meaning (that is, where "meaning exists in the past as an object"), it may be hard for us to recover that meaning due to its remoteness in time, gaps in the source material, etc.; and (b) modern concerns may influence our interpretations of the past.  Thus originalism does not contend that meaning can always be recovered in its "pristine" form; rather it contends that meaning can at least sometimes be recovered, at least on a more-likely-than-not basis.  Again, this is not a radical view of historical documents: we commonly think we can get at least a pretty good sense of their meaning despite their remoteness in time and our unavoidable biases.  And again, I think most people agree with respect to at least some constitutional phrases, such as the ones mentioned above.

The debate here isn't -- or shouldn't be -- about whether we can always find the historical meaning of constitutional phrases (of course we can't)  or whether we can sometimes find the historical meaning of constitutional phrases (of course we can).  The debate is really about how often we can find the historical meaning of constitutional phrases.  For originalism to have substantial weight, it needs to be able to claim that we can find the historical meaning of constitutional phrases a good bit of the time.  I take it that this is the proposition Professor Gedicks disputes, with a little overstatement for effect.

10/30/2017

Michael Stern on Emoluments and Congress
Michael Ramsey

At Point of Order Blog, Michael Stern: Why Congress Must Intervene in the Foreign Emoluments Litigation (commenting on the argument that the President is not covered by the Foreign Emoluments clause).  Core point:

I don’t know whether the government will actually argue in court that the FEC is inapplicable to the president. Presumably it hopes not to have to address the issue because the cases will be dismissed as non-justiciable (as they should be). But even if the government never makes the argument, it has now reserved the right to assert that the FEC does not apply to the president or vice president. This seems a little inconsistent with the promise previously made by Trump’s personal counsel, but Congress has now been given fair warning. The president (or his successors) may take the position in the future that the FEC is inapplicable. That means that the president could accept a present, emolument, office or title from a foreign government without seeking congressional consent or even notifying Congress of this acceptance.

This illustrates the danger that these cases pose to Congress’s institutional interests. Both history and text strongly suggest that the FEC is designed to be enforced by Congress, not by the judiciary. Judge Daniels indicated as much during the oral argument, stating: “Clearly the Constitution was written so that Congress would make the determination. . . . They don’t have to sit on their hands if they think there’s a problem. They can do something about it.”

The court is clearly right about this. But there is no one before the court representing Congress’s interests in this matter. Trump’s personal and political interests, the executive branch’s institutional interests, the views and interests of Trump’s political opponents and even the thoughts of officious intermeddlers [ed.: I prefer "public-spirited scholars"] like Professor Tillman are represented, but not Congress.

It is time for Congress to stop sitting on its hands. It should authorize House and/or Senate legal counsel to file briefs in the three FEC cases, politely explaining to the courts that this is none of their business. It should demand through its committees that the Department of Justice provide a straight answer as to whether the FEC applies to the president. And, while they are at it, the committees should take a hard look at Trump’s business interests and the arrangements that he has made to “scrupulously abide” by the Foreign Emoluments Clause.

This assumes, though, that Congress cares about its institutional interests.

RELATED:  More from Michael Stern on the substance of Professor Tillman's argument here.

10/29/2017

Philip Hamburger on the AIG Litigation
Michael Ramsey

At Liberty Law Blog, Philip Hamburger: From Kelo to Starr: Not Merely an Unlawful Taking but an Illegal Exaction.  From the core of the argument:

A property case even more important than Kelo v. City of New London (2005) began to wend its way toward the Supreme Court a few weeks ago. The new case is Starr International Company, Inc. v. United States, and unless the Supreme Court repudiates the lower courts, the case will lay down a strange principle: that the government can unlawfully deprive shareholders of their ownership and control as long as it does not seize their shares.

Starr International, and other shareholders of American International Group, are seeking with this suit to recover their ownership interest in AIG. The case may therefore seem just a footnote to the c. 2008 financial crisis, when the government supported many companies for the sake of the economy. The shareholders’ claim is that in the course of propping up AIG, the government, in violation of federal statute, demanded nearly 80 percent of equity in the company—ultimately depriving shareholders of their share of ownership and their voting control. Although the government did not physically take their shares—their formal indicia of ownership—it ignored federal law to seize most of their real share of ownership and their control.

Government interference in property rights is often associated narrowly with the Constitution’s Taking’s Clause, which bars government from taking private property for public use without just compensation. This was the provision that the Supreme Court notoriously misread in 2005, when it concluded in Kelo that government can take private property for transfer to a private developer.

But the Takings Clause centers on compensation for lawful takings, and it thus is not the only protection for property rights. Even more basically, government cannot exact property unlawfully. It must return any property that it acquires through an unlawful exaction.

Thus, whereas the Takings Clause requires just compensation for lawful takings, the more central constitutional point—at stake in Starr International—is that the government must return any property it gets hold of unlawfully. And here, where the government has sold the property it exacted, it ordinarily must return its ill-gotten proceeds—not as damages, but in lieu of the property itself.

This seems related to last year's Supreme Court case Nelson v. Colorado, about which I wrote a couple of posts (see here and here).

 

10/28/2017

Pamela Karlan: Reapportionment, Nonapportionment, and Recovering Some Lost History of One-Person, One Vote
Michael Ramsey

Pamela S. Karlan (Stanford Law School) has posted Reapportionment, Nonapportionment, and Recovering Some Lost History of One-Person, One Vote (William & Mary Law Review, forthcoming) on SSRN.  Here is the abstract:

The Constitution requires a decennial “Enumeration” of the U.S. population, following which seats in the House of Representatives are apportioned among the states “according to their respective Numbers.” Congress has enacted a default provision that makes this reapportionment essentially automatic.

It was not always so. The post-2020 round of reapportionment will mark the centennial of the most striking episode in the history of American reapportionment: Congress’s failure, for an entire decade, to reallocate seats in light of the census results. The reasons for this failure, and the consequences of Congress’s ultimate response, continue to shape our politics.

Historians and political scientists have written excellent studies of apportionment that address the nonapportionment post-1920. But none of these studies approaches the question from the perspective of legal doctrine. This essay aims to fill that space. It begins by describing the constitutional structure of apportionment, the questions the Constitution left open, and how those questions were resolved prior to 1920. It then turns to what happened in the 1920s and why. Finally, it explores the judicial response to the 1929 solution and describes how that response set the stage for the Reapportionment Revolution of the 1960s, which imposed a constitutional requirement of equipopulous congressional districts. Along the way, it recovers the lost history of earlier, congressional attempts to require population equality. The story is interesting in its own right, but I also suggest ways in which the upcoming redistricting will occur in a context with striking similarities to the context a century before.

10/27/2017

James Cleith Phillips & Jesse Egbert: Advancing Law and Corpus Linguistics
Michael Ramsey

James Cleith Phillips (University of California, Berkeley, School of Law, Students) and Jesse Egbert (Northern Arizona University) have posted Advancing Law and Corpus Linguistics: Importing Principles and Practices from Survey and Content-Analysis Methodologies to Improve Corpus Design and Analysis (Brigham Young University Law Review, forthcoming) on SSRN.  Here is the abstract:

The nascent field of law and corpus linguistics has much to offer legal interpretation. But to do so it must more fully incorporate principles from survey and content analysis methodologies used in the social sciences. Importing such will provide greater rigor, transparency, reproducibility and accuracy in the important quest to determine the meaning of the law. This paper highlights some of those principles to provide a best-practices guide to those seeking to perform law and corpus linguistic analysis.

(Via Larry Solum at Legal Theory Blog, who says "An important paper.  Highly recommended.  Download it while it's hot!")

This is another paper in the forthcoming BYU symposium on corpus linguistics -- I have noted a number of the others already.  I will post a complete list once the symposium is published.

10/26/2017

Another Twist in the Emoluments Litigation
Michael Ramsey

Via Josh Blackman, apparently the President's lawyers now say that maybe the President isn't covered by the Foreign Emoluments clause, or at least they are not conceding that he is:

[T]he Department of Justice submitted a letter to Judge Daniels (SDNY) in CREW v. Trump. ... The important development is that the government is no longer conceding that the Foreign Emoluments Clause applies to the President. The Justice Department has carefully avoided this issue, only operating under the assumption that the clause did apply, but now the issue is stated clearly.

(Full text of the letter at the link).

RELATED:  From the editors of the Weekly Standard, Trump, Emoluments, and the Professoriate.  Key points:

The president’s most effective defender on the subject of foreign emoluments is not his own Justice Department but a pair of law professors: Seth Barrett Tillman, a law professor at Maynooth University in Ireland, and Josh Blackman, a professor at the South Texas College of Law. Tillman and Blackman have filed amicus briefs with each of the courts considering a foreign-emoluments suit. Their primary contention: that the Constitution’s ban applies only to persons holding office “under” the Constitution and thus only to appointed positions, not elected officials. While president, both George Washington and Thomas Jefferson accepted personal gifts from foreign dignitaries (a portrait of Louis XVI and a bust of czar Alexander I, respectively). When the Senate, in 1793, asked Treasury Secretary Alexander Hamilton to “lay before the Senate, at the next session of Congress, a statement of the salaries, fees, and emoluments ... of every person holding any civil office or employment under the United States,” Hamilton’s submission included nothing about any elected official.

The Department of Justice argues that the term “emolument” “refers to benefits arising from personal service in an employment or equivalent relationship.” But Tillman and Blackman’s more sweeping case is, in our view, peremptory.

And more broadly:

What catches our attention about this case, though, isn’t so much the legal argument for or against the foreign emoluments clause’s relevance to the president. What most interests us is the extent to which judicial liberals and proponents of the “living Constitution” have suddenly turned into constitutional textualists. Ordinarily, of course, constitutional law professors at our most venerated institutions are happy to find all sorts of emanating penumbras and hidden principles in the Constitution...

Suddenly, liberal legal authorities are scrutinizing the actual text of the Constitution—and not just their favorite phrases in the First and 14th Amendments! Amicus briefs by law professors alleging Trump to be in violation of the clause are packed with discussions of the meaning of a single constitutional word: “emoluments.” What did it mean in Blackstone’s Commentaries? What did it mean in Adam Smith’s Wealth of Nations? One professor, John Mikhail of the Georgetown School of Law, undertook to produce definitions of the disputed term from scores of dictionaries from the 17th and 18th centuries.

I agree that the latter point is especially striking.  Many people are willing to embrace originalism when they think it takes them where they want to go.  That does not make them originalists, but it sharply undercuts the argument that originalists are outliers deploying a bizarre and unworkable methodology.  Will the historians and law professors who criticized originalism during the Gorsuch hearings attack the originalist premises of the emoluments litigation?  So far I have not seen them do so. 

(I should note, though, that Professor John Mikhail is unfairly singled out in the editorial, as he has been interested in recovering the Constitution's original meaning long before the emoluments litigation and is in no sense an opportunist here).

10/25/2017

The Original Fourth Amendment and Unreasonable Searches and Seizures
Mike Rappaport

Recently, Laura Donahue, a professor at Georgetown Law and an expert on digital privacy, came to the Originalism Center at the University of San Diego to talk about her recent article, "The Original Fourth Amendment."  The article is a long one, nearly 150 pages long in a law journal, and it covers the development of search and seizure law through English, Colonial and American history.  One of the messages that comes across is the familiar one that the Americans were Whigs, who took one strand of English thought that was protective of liberty, and wrote it into the Constitution.  (Another area where some have argued this was true was the First Amendment.)

One interesting question is the meaning of the famous language in the Amendment prohibiting “unreasonable searches and seizures.”  Many people who reject originalism or embrace a nonconstraining originalism argue that this language is inherently vague or a delegation to the future.  In essence, their argument is that unreasonable could mean a variety of things and therefore judges should decide and give it content based on their view of what would be beneficial.

But Donahue disputes this argument.  She argues that “unreasonable” means “against the reason of the common law.”  In other words, the Fourth Amendment incorporates the principles of the common law and therefore those principles should be followed.  Unreasonable does not involve vague language or a delegation to judges.  It has a specific meaning that follows the common law in this area.

Donahue presents some significant evidence for her conclusion.  It is significant to note, however, that Donahue’s argument only works if one accepts the view that the Constitution is written in the language of the law -- that is, that the Constitution uses terms that have legal meanings.  If the Constitution is written in ordinary language, then  unfamiliar legal terms could not be found in the document.

Donahue's interpretation employs legal language in two ways.  First, in ordinary language, the term “unreasonable” would not normally be understood as referring to the reason of the common law.  Donahue cites to Johnson’s dictionary, who does not refer to the reason of the common law.  It is only legal works as well as a legal dictionary that make that reference.

Second, an ordinary language reader would not understand the meaning of the term “unreasonable” even if they knew it referred to “against the reason of the common law.”   To understand what that term meant, one would have to be familiar with the common law.

I should hasten to add that I do not regard this feature of Donahue’s argument as a defect.  As I have noted before, John McGinnis and I have argued that the Constitution is written in the language of the law and therefore its terms must be understood to include legal terms.  I believe that Donahue’s argument is a good example of how we can best understand the Constitution by reference to legal language.

Podcast on "The Unexpected Scalia" (With my Further Comments)
Michael Ramsey

The Federalist Society has posted this podcast discussion of David Dorsen's new book The Unexpected Scalia: A Conservative Justice's Liberal Opinions Mr. Dorsen discusses the book with moderator/questioner Professor Alan Morrison (GW) and me.  Here is the introduction to the podcast:

Antonin Scalia was one of the most important, outspoken, and controversial Justices in the past century. His endorsements of originalism, which requires deciding cases as they would have been decided in 1789 [ed.: um, that would be, in accordance with the original public meaning of the text at the time of enactment], and textualism, which limits judges in what they could consider in interpreting text, caused major changes in the way the Supreme Court decides cases. He was a leader in opposing abortion, the right to die, affirmative action, and mandated equality for gays and lesbians, and was for virtually untrammelled gun rights, political expenditures, and the imposition of the death penalty. However, he usually followed where his doctrine would take him, leading him to write many liberal opinions. In The Unexpected Scalia, a close friend of Justice Scalia David Dorsen explains the flawed judicial philosophy of one of the most important Supreme Court Justices of the past century.

Author David Dorsen and former Scalia clerk Michael Ramsey joined us to discuss Mr. Dorsen's newest book.

I don't actually get to say too much in the podcast, but my basic take on the book is probably apparent.  It is, I think, both an important and annoying book.  But, to adapt the familiar snark in a more positive way, the important part is not annoying and the annoying part is not (very) important.

The important part is that Dorsen does a great job of documenting the extent to which Justice Scalia reached "liberal" (meaning politically left-of-center) results in his judicial opinions.  Most people are familiar with Scalia's vote in the flag-burning case (for the burners) and perhaps with a few of his major criminal procedure cases concerning the Fourth and Sixth Amendments (favoring the criminal defendants).  Dorsen's book shows that these are not outliers.  Of course Scalia reached many "conservative" (politically right-of-center) results too, but his liberal results are not just a few isolated cases -- they are a material part of his judicial output.  Two of my favorites, mentioned by Dorsen, are Hamdi v. Rumsfeld (in dissent, concluding that a U.S. citizen who fought with the Taliban could not be held in military custody as an enemy combatant) and Pacific Mutual Life Ins. Co. v. Haslip (in concurrence, concluding that the due process clause imposes no limit on awards of punitive damages).  To refute anyone who argues that Scalia simply voted the Republican Party's political preferences, there is now a single conclusive citation: Dorsen's book.  It's worth reading simply to get a full sense of Scalia's "unexpected" (and underappreciated) side.

The annoying part is that it's really two books in one, and the second book -- not advertised in the title -- is an underdeveloped and rather mean-spirited attack on originalism.  Only about half the book discusses Scalia's liberal opinions.  The other half discusses Scalia's "conservative opinions" or opinions not easily categorized.  Of these, it is generally extremely critical, and the criticism is woven around the theme that originalism is a fundamentally flawed methodology.  However, this criticism is not innovative or particularly deep -- it repeats some standard and to my mind not very persuasive arguments.  These include, for example, that originalism unrealistically claims certainty about text and history; that judges (especially Justice Scalia) do not get history right; and that originalism cannot deal with new situations.  All these arguments have been made before, and answered (whether  or not persuasively).  It's not clear that Dorsen adds anything to the debate -- and in any event, it's not clear what any of this is doing in a book supposedly about Scalia's liberal opinions.

But Dorsen's criticisms of originalism do raise an interesting point that he does not fully explore.  One may ask, why did Scalia reach so many liberal results?  Dorsen seems to believe that Scalia genuinely followed what Scalia thought was right in terms of text and history, regardless of what result that produced.  (Of course, this what most Scalia admirers think too).  There is, though, another view.  Perhaps Scalia was more of a libertarian than many people understood.  Perhaps Scalia actually liked his "liberal" results because they are libertarian results (protecting flag burning, protecting certain aspects of Fourth Amendment privacy). Perhaps, while Scalia did not like flag burners or criminals, he understood that their rights were also the rights of ordinary citizens who might run afoul of the government, with whom he sympathized.

This story would fit better with Dorsen's criticisms of originalism -- one could say that Scalia used originalism instrumentally to reach results he liked, including some that were liberal/libertarian.   [Professor Eric Segall takes this view, see here.] Interestingly, though, Dorsen -- who knew Scalia well and has no sympathy for originalism -- is not persuaded by this story.  He thinks Scalia was genuine, if misguided, in feeling compelled to reach results that he (Scalia) disliked.  Dorsen just thinks Scalia was often mistaken in his history and analysis.

That strikes me as implausible.  Scalia was a very smart person, as all agree.  And he had very strong opinions, judicially and politically.  No doubt he made mistakes.  But it seems unlikely that he consistently made mistakes forcing him to reach outcomes he disliked.  If there had been an overwhelming argument for an outcome he liked, I think he would often have found it.

In truth, the two themes of Dorsen's book are at war with each other.  If originalism at times impelled Scalia to liberal results he disliked, that suggests that originalism is a robust, constraining, coherent methodology.  If originalism is an incoherent, malleable and unmanageable methodology, that suggests that it could not have impelled so strong a personality as Justice Scalia to results he disliked.

I have my own views on which of Dorsen's themes is the right one, which I won't belabor here.  I'll conclude by saying that the book is well worth reading to contemplate this core question about Scalia and originalism, despite the book's flaws and in addition to its contribution in documenting Scalia's liberal opinions. 

10/24/2017

Jeffrey Toobin: Originalist Assassin
Mike Rappaport

Recently, Ann Althouse had a great post criticizing Jeffrey Toobin’s account of oral argument in the Supreme Court's political gerrymandering case. Toobin had criticized Neal Gorsuch, portraying him as violating norms and as ineffective. But Althouse makes a strong case that this is largely in Toobin’s imagination. Sadly, this is not the first time Toobin has unfairly criticized an originalist justice. In this past post, I criticized Toobin’s unfair attack on Justice Thomas’s criticism of nonoriginalism. Apparently, Toobin sees his role as in part attempting to persuade the New Yorker’s audience that originalists are just so wrong.

What did Toobin have to say about Gorsuch? First, Toobin does not like that Gorsuch raised the question how the Supreme Court could justify holding political gerrymandering unconstitutional.

According to Toobin:

The argument had gone on for nearly an hour when Gorsuch began a question as follows: “Maybe we can just for a second talk about the arcane matter of the Constitution.” There was a rich subtext to this query. Originalists and textualists such as Gorsuch, and his predecessor on the Court, Antonin Scalia, often criticize their colleagues for inventing rights that are not found in the nation’s founding document. Gorsuch’s statement that the Court should spare “a second” for the “arcane” subject of the document was thus a slap at his ideological adversaries; of course, they, too, believe that they are interpreting the Constitution, but, in Gorsuch’s view, only he cares about the document itself.

I find it hard to be sympathetic with Toobin here. That Gorsuch employed a rhetorical strategy used by originalists is no criticism. In fact, in a case like the political gerrymandering case, where very few sympathize with such gerrymandering, arguing that the constitutional text does not allow this is both the strongest rhetorical strategy and the correct reason for not deciding the case to restrict such gerrymandering.

And that some of the other justices believe—or at least claim to believe—that their opinions (which are not derived from the constitutional text) nonetheless actually involve an “interpretation” of the Constitution is no reason for Gorsuch to accept that argument. Certainly those justices hardly refrain from calling their actions “interpretations” of the Constitution because originalists like Gorsuch don’t agree with that description. Moreover, this claim of the nonoriginalist justices is weak: their nontextual opinions are not an interpretation of the Constitution, but simply “constitutional law.”

Toobin then describes Ruth Bader Ginsburg as if she somehow destroyed Gorsuch's argument. But Toobin cannot do this without seeming to violate journalistic standards. He describes Ginsburg's actions based, not on observation, but on his impressions, and perhaps imaginary ones at that.

Ruth Bader Ginsburg, who is bent with age, can sometimes look disengaged or even sleepy during arguments, and she had that droopy look today as well. But, in this moment, she heard Gorsuch very clearly, and she didn’t even raise her head before offering a brisk and convincing dismissal.

In her still Brooklyn-flecked drawl, she grumbled, “Where did ‘one person, one vote’ come from?” There might have been an audible woo that echoed through the courtroom. (Ginsburg’s comment seemed to silence Gorsuch for the rest of the arguments.) (emphasis added).

But as Althouse writes:

Might have been . . . seemed to . . . Are we in fantasy land? I wasn’t there but either an audible woo echoed or it didn’t. And Gorsuch wasn't silenced: He was the next Justice to ask a question. But speaking of feeling as though you’re back in high school, Toobin sounds like a schoolboy muttering “oh, burn.”

The weakness and unfairness of Toobin's attack here (and against Thomas) is upsetting. But I suppose there is a good aspect to his attacks: they suggest that Toobin is worried about originalism and that it may come to replace the jurisprudence of nonoriginalists like Ginsburg.

Mark Pulliam on Judge Bork and DC v. Heller
Michael Ramsey

At Liberty Law Blog, Mark Pulliam asks (on the 30th anniversary of the Senate's rejection of Judge Bork for the Supreme Court), would Bork have voted with Justice Scalia in DC v. Heller?  His answer -- maybe not:

Why do I suggest that Bork might have voted differently from Kennedy? As far as I can tell, Bork, who died in 2012, never commented publicly on Heller, but his general approach to constitutional interpretation is that courts should defer to the political branches unless the Constitution clearly puts the subject “off limits” from majoritarian rule. The Second Amendment, with its odd phraseology (“A well regulated Militia, being necessary to the security of a free State”), might have presented Bork with the same difficulty as the Ninth Amendment (which he once compared to an “ink blot”) or the Privileges or Immunities Clause of the Fourteenth Amendment, making him reluctant to read into the constitutional text rights that the Framers did not expressly put there.

This is not mere speculation. In Slouching Towards Gomorrah, Bork referred to the language of the Second Amendment as “somewhat ambiguous[].” In the same passage, he stated that “The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical national government.” While it is clear that Bork was opposed to gun control on policy grounds, it is not clear that he agreed that the Second Amendment conferred an individual right.  ...

It is possible that a Mr. Justice Bork, had he read the briefs and listened to the oral argument in Heller, would have been persuaded to join Scalia’s majority opinion—as in fact Anthony Kennedy did. Musing about an issue in a broadly focused book is not the same as reaching a decision in a concrete case. Still, Bork was a clear thinker who was stubbornly committed to principle. For decades, he decried judges’ overriding democratically enacted laws based on fanciful interpretations of vague constitutional text in their pursuit of  a  policy result they find desirable.

I think this is a plausible account.  Even though Scalia and Bork were roughly contemporaries, Bork was much more influenced by the older versions of originalism that reacted to the overreaches of the Warren Court. Scalia represented an early version of the more modern originalism -- he was more committed to applying the Constitution's original meaning than he was to judicial restraint, despite his frequent rhetoric celebrating democracy.  As the post indicates, there are a range of Scalia opinions in addition to Heller that Bork might well not have joined.