Fact-Sensitivity of the Constitutional Referent
Chris Green

Apropos of Mike Ramsey's post below and Will Baude's request that I call my office, I think I want to take Mike Dorf's side here.  It is possible for everyone at the time of the Founding to agree about a constitutional outcome, but nonetheless to be wrong.  Everyone at the time the Constitution was drafted (at least, everyone who mattered when the interim rules of Art. I, sec. 2, cl. 3 were drafted) thought that it was constitutional to give more representatives to Maryland than to North Carolina. But that conclusion depended on the incorrect-but-apparently-universal belief among the relevant Founders that Maryland's free-population-plus-three-fifths-of-its-enslaved-population was larger than North Carolina's (see here at 1623). The constitutional rule is "according to their respective numbers," and that applies to the actual facts, even if all of the relevant Framers got those facts wrong. Similarly, as Mike Dorf explains, if "bear" in the context of the Second Amendment means "bear in the home or in public, subject to governmental restrictions as to manner," then it might be permissible to regulate the manner of public arms-bearing  (e.g., by requiring open carrying), even if it would not be permissible to ban public arms-bearing altogether. Whether concealed-carry bans are constitutional might depend on whether they are paired with open-carry bans. If they were not paired with open-carry bans at the Founding, then the Founders' partly-fact-dependent conclusion would not be binding on us today, because it was not actually baked into the Constitution itself.

"Semantic originalism" is a term which I think Ronald Dworkin invented in his reply to Scalia's Tanner Lectures to make a point which I think works better if put in terms with a longer philosophical pedigree. I use "original textually-expressed sense," building on a tradition in the philosophy of language going back to Gottlob Frege (and beyond; a very influential seventeenth century logic textbook by Arnauld and his colleagues made the same distinction) to make the same point (at least, a point which I think is the same as Dworkin's!).  It's not absolutely clear quite what Dworkin meant by the term, but he distinguished between "semantic originalism" and "original expectations originalism"; I take Dorf's "First Order Originalism" to be likewise anchored solely in original expectations (Fregean referent, Carnapian extension, and Millian denotation, as I would put it), rather than higher-order notions like meaning (Fregean sense, Carnapian intension, or Millian connotation, as I would put it). 

As I see it, the sense originally expressed by the text of the Constitution is what the phrase "this Constitution" in Article VI makes binding, not the original reference or collection of things referred to by the Constitution. Building cars changes the referent of "car," but not its sense. Banning open carry might likewise change the referent of the category "the right of the people to keep and bear arms," while leaving the binding sense expressed by those words (as originalists rightly insist) unchanged.

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.


Eric Posner, Michael McConnell et al. Discuss Presidential Power
Michael Ramsey

At Intelligence Squared, a debate, with the resolution being: The President has usurped the Constitutional Power of Congress.  Pro: Michael McConnell (Stanford) and Carrie Severino (Judicial Crisis Network); con: Adam Cox (NYU) and Eric Posner (Chicago). 

Here is a description of the debate:

The Constitution provides that "All legislative powers herein granted shall be vested in a Congress of the United States," and it goes on to grant Congress a robust-and fearsome-list of powers. James Madison assumed that "[i]n republican government, the legislative authority necessarily predominates," and he cautioned that the legislative department may tend to "draw[] all power into its impetuous vortex." But modern politics and law seem to tell a quite different story. With executive orders, administrative regulations, creative interpretations of federal statutes, and executive agreements with other nations, it may seem that the President, not Congress, is, in effect, wielding the most potent legislative power. Indeed, the Supreme Court is currently poised to decide whether President Obama's unilateral immigration actions usurped Congress's power and flouted his duty to "take Care that the Laws be faithfully executed." But some argue that this is nothing new: they say that the President is not exercising legislative power; he is simply exercising his well-established executive discretion. Is Congress still the most powerful branch, or is this the era of the imperial presidency? Has the President usurped Congress's legislative power?

I'm not sure if the right phrase is "has usurped" or "has been handed."

(via ericposner.com).


A Reply on "The Garland Affair"
Robin Bradley Kar & Jason Mazzone

[Editor's Note: For this guest response, we welcome Robin Bradley Kar, Walter V. Schaefer Visiting Professor of Law at the University of Chicago Law School and Professor of Law and Philosophy at the University of Illinois College of Law, and Jason Mazzone, the Lynn H. Murray Faculty Scholar in Law and Co-Director, Program in Constitutional Theory, History and Law, also at the University of Illinois College of Law.  This post responds to several posts on this blog (see here and here) criticizing Professor Kar and Mazzone's article on the Garland nomination.  In accordance with usual practice (although it is not a constitutional rule!) I will let our guest responders have the last word.]

We would like to thank Michael Ramsey for his recent attention on this blog to our essay, The Garland Affair, which discusses the history of U.S. Supreme Court appointments and the bearing of that history on President Obama’s attempt to appoint a replacement for Justice Scalia. We offer historical evidence that it is unprecedented for the Senate to attempt a deliberate interpresidential transfer of Supreme Court appointment powers (in this case from President Obama to an unelected successor) absent contemporaneous questions about the status of the nominating President as the most recently elected president.

Ramsey focuses attention on the constitutional issues we raise in our essay. This reply will, accordingly, focus on those same issues. Nonetheless, we emphasize that constitutional issues are only one part of The Garland Affair. Our primary claim is that a deliberate interpresidential transfer of Supreme Court appointment powers in current circumstances contravenes more than two centuries of historical tradition. Hence, even if the tradition we identify has not ripened into a constitutional rule, departing from this unbroken historical tradition would mark a much sharper departure from history and internal norms of senatorial fair dealing than has thus far been recognized. In our essay, we go to great lengths to describe the pragmatic costs of such a break to the impartiality and appearance of impartiality of the Judiciary; to well-settled forms of democratic deliberation as they relate to Supreme Court appointments; and to the functioning of our constitutional form of governance. Ramsey is right, though, that we make the further argument that this tradition may have also ripened into a constitutional rule that should inform the best interpretation of constitutional text and structure. If so, then the Senate Republicans’ current plan violates the Constitution as well.

When addressing our constitutional arguments, Ramsey acknowledges that our historical arguments are “strong”. He nevertheless questions our assertion that the evidence we present casts doubt on whether the Senate has the constitutional “power to deliberately divest a sitting President of his Supreme Court appointment powers” as opposed to a constitutional power to provide “advice and consent” on particular candidates (i.e., by confirming, rejecting, or resisting them on the merits, using a wide array of senatorial procedures). According to Ramsey, our characterization of the issue “assumes the conclusion” because—in Ramsey’s word’s—“[t]he President’s ‘appointment powers’ are to nominate a candidate and to appoint a nominee if the Senate gives advice and consent.” But it seems to us that Ramsey’s presentation of the issue itself assumes a conclusion. The Appointments Clause actually says that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . .  Judges of the [S]upreme Court  . . . .” The Appointments Clause also explicitly gives Congress the power to divest the President of some appointment powers and to “vest them as they think proper, in the President alone, in the Courts of Law, or in the Heads of Department.” On the other hand, the Appointments Clause does not give Congress (or any other body) the same divestment power with respect to Supreme Court appointments. So there are two possibilities here. Either—as Ramsey assumes—the Senate’s power to provide “advice and consent” with respect to Supreme Court nominees includes a further power to deliberately divest Presidents of their Supreme Court appointment powers (a power which Congress nevertheless explicitly lacks and no other body is explicitly granted when it comes to Supreme Court appointments). Or it doesn’t. Where text is ambiguous, historical practice can provide needed clarification. Here, as we show in our essay, history would resolve this textual ambiguity in favor of a rule against divestment of Presidents’ Supreme Court appointment powers except in the highly unusual circumstances where there are contemporaneous questions about the status of the nominating President as the most recently elected President.

If this history has further ripened into a constitutional rule, as it may well have, then the Senate therefore lacks the constitutional power to do what it is currently trying to do. Put simply, it cannot deliberately divest President Obama of his Supreme Court appointment powers using any procedures—though it can and should consider and confirm, reject or resist particular candidates based on their merits (such that the end result might actually be no appointment or an appointment only of a second- or third-choice nominee). When it comes to disambiguation, our view does not assume any conclusion in the way that Ramsey’s interpretation does. We explicitly rely on historical evidence to avoid the need for any such assumptions.

Second, Ramsey suggests that “although some Republican Senators may be guilty of rhetorical excess, I think it wrong to say (as Kar and Mazzone do) that the Senate is ‘simply refus[ing] to consider any nominee from a particular President.” Ramsey explains that he is “confident that if the President were to nominate Paul Clement (or even a more moderate but originalist oriented judge) the Senate would consider the nominee.” If this assessment is accurate, it would be a major concession. It would suggest that Senate Republicans are actually resisting Garland on the merits, rather than, as they have repeatedly said, seeking to let the American people weigh in on the appointment through their choice of President in November. If Senators are doing what Ramsey suggests, then that fact raises a number of obvious questions: How exactly do Senate Republicans know to reject Garland, but not Clement, on the merits even though these Senators are not willing to meet with Garland or learn more about his judicial philosophy? And might not the public, told it is being given the opportunity to weigh in on the next appointment, legitimately ask whether Senate Republicans are simply lying? At what point do actions like these go beyond advice and consent with respect to particular nominees to become, as we suggest, an effort to divest President Obama of his undisputed constitutional powers to choose nominees? Finally, why is the Senate breaking its own Rule 31, which suggests that advice and consent is given by the full Senate in response to particular nominees?

Ramsey’s suggestion that Senate Republicans may secretly be using nominees’ explicit commitment to originalist methodology as a litmus test for judicial impartiality raises additional concerns. We agree, of course, that it would be disturbing and rejection-worthy if, after a full vetting, the Senate were to find that Judge Garland is not committed to interpreting the Constitution correctly. We should not allow Justices onto the Court who are willing to let personal or political bias intervene in their legal opinions. But can much more be said than that?

If one is a legal positivist and believes that the content of law is determined completely by social facts, then, as William Baude’s recent work suggests, originalist methodologies may be part of what objectivity in legal judgment requires in our legal system. But Baude’s work is contestable, as is the precise form of originalism that the social facts would require and whether particular judges who do not express an explicit commitment to “originalism” are nevertheless following the right methodology. (Would “living originalist” Jack Balkin satisfy the litmus test? Would “practical originalist” Samuel Alito? Would “faint-hearted” originalist Antonin Scalia? And what about the many judges that Baude claims are implicitly doing the right thing without calling themselves “originalists”?) When questions like these are contestable by the best legal minds, how can the Senate require more of a Justice than to express commitment to getting the law right, using whatever methodologies are appropriate given the right answers to hard questions like these? And if identifying what the law is requires some moral or political insight, as Ronald Dworkin suggests, then perhaps there are normative grounds to accept some form of originalism. Once again, however, that is contestable, as is the precise form and scope that originalist reasoning should play if accepted on these grounds.

More generally, evaluation of methodological approaches and their relationship to impartiality should not occur behind closed doors. Besides the fact that secrecy means we don’t get to know precisely what Senators actually understand originalism and impartiality to be, truly democratic assessment of a nominee’s methodology and its impartiality demands public discussion. How wonderful it would be to have, for example, a confirmation hearing in which a candidate is asked some methodological questions: Do you consider originalism to be the correct methodology to interpret the Constitution? If so, what kind of originalism do you have in mind? How would you go about conducting originalist analysis? What do you do if that analysis does not yield a clear answer to a concrete question? Please give us an originalist interpretation of the following provision of the Constitution: _______” How wonderful to have prominent scholars testify that originalism should be a litmus test and explain why and in what precise form. If, as Ramsey suggests, Garland is disqualified on the basis of methodology, then wouldn’t a confirmation hearing bear that out—such that Obama could then proceed to select a different candidate who is more appropriately dedicated to getting the law right?   

But let us now return to the main issue raised by Ramsey’s remarks, which is whether the unbroken line of senatorial practice that we identify in our essay has ripened into a constitutional rule. The alternative—as Ramsey suggests—is that we have identified only a long-standing and unbroken “courtesy” that the Senate has given every past President in President Obama’s circumstances. If so, then the current Senate Republican plan, which promises not to consider any Obama nominee, is merely a breach of internal senatorial norms of courtesy and fair dealing that have otherwise prevailed since the earliest days of the Republic. As noted, that breach would generate grave pragmatic risks, which have not yet been fully appreciated, and which we discuss in more detail in our essay. But the plan may not raise a further constitutional violation.

So which one is it and how might we know? Ramsey’s other arguments are dedicated to raising doubts about whether the precise historical traditions we identify have ripened into constitutional rules. All of these doubts are essentially epistemic: Ramsey points out that it is hard (perhaps even impossible) to know when historical facts require a conclusion of constitutional ripening. We agree. In fact, in our essay, we point out that this is initially true of all ripening arguments—including all those that have been successful in the past.  Rather than arguing that the Senate Republicans’ current plan definitively violates the Constitution, we therefore propose a more modest conclusion. We suggest that this unprecedented breach from more than two centuries of U.S. tradition presents a “hard” constitutional question—i.e., a novel and unprecedented constitutional question that cannot be definitively settled either way based on the available historical and legal evidence.

But this fact clearly cuts both ways. It explains why Ramsey is right to wonder whether ripening has taken place and it explains why it would be irresponsible for Republican Senators simply to dismiss any risk of a constitutional violation outright. In our essay, we therefore conclude:

Fortunately, there remains an easy way to avoid the pragmatic and constitutional risks that loom large. The Senate can simply follow the path that its predecessors have taken in every analogous situation in the past [including the case of Abe Fortas] and proceed to full Senate consideration of President Obama’s nominee (or nominees) to fill the Supreme Court vacancy. The Senate can similarly exercise its undisputed power to confirm, reject or resist Obama’s particular Supreme Court nominees on the merits. Any further efforts to deliberately and completely divest President Obama of his constitutionally-designated power to appoint Justices to the Supreme Court should, however, be abandoned.

One last point. From among his epistemic arguments, the one that Ramsey finds the most compelling is to question whether historical traditions can ripen into constitutional rules when they “create a constitutional limitation that does not exist in the Constitution itself” as opposed to relaxing “stricter separation of powers rules apparently imposed by the Constitution.” If this were true, then it would still be a hard question whether the historical tradition we identify has ripened into a constitutional rule. There is, moreover, nothing we can find in the ripening jurisprudence that suggests the limitation Ramsey proposes. To the contrary, in his concurrence to NLRB v. Noel Canning, Justice Scalia wrote much more generally that: “Of course, where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision.” 134 S. Ct. 2550, 2594 (2014) (Scalia, J. concurring, joined by Thomas, Alito & Roberts, JJ.). In NFIB v. Sebelius, Justice Roberts similarly explained that the Commerce Clause did not give Congress the authority to enact the individual mandate provision of the Affordable Care Act in part for the simple reason that “sometimes ‘the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent’ for Congress’s action.” 132 S. Ct. 2566, 2586 (2012) (citation omitted). Here, precedent for the Senate Republicans’ plan is entirely lacking.

The deeper point, though, is that first principles matter. Because the federal government is one of limited and enumerated powers, there is a pressing question here: From where precisely does the Senate get the unprecedented power that it is currently asserting to completely and deliberately extinguish President Obama’s Supreme Court appointment powers? Neither text nor history point to any such senatorial authority.

 We thank Professor Ramsey for offering us a chance to reply here.

Note: For those who are interested in further discussion of these issues, we note coverage in the NY Times (“Study Calls Snub of Obama’s Supreme Court Pick Unprecedented”) and the Huffington Post (“The Senate Republicans, Merrick Garland, and the Lessons of History”). As Ramsey has noted earlier, Ed Whelan has also posted a six-part critique of our essay in the National Review (“Kar/Mazzone on Senate Duty on Supreme Court Vacancies—Part 6”—with links to earlier posts). Those critiques focus primarily on the non-constitutional aspects of our argument. Our response, also published in the National Review, is here.

Jeffrey Pojanowski & Kevin Walsh: Enduring Originalism
Michael Ramsey

Jeffrey A. Pojanowski (Notre Dame Law School) & Kevin C. Walsh (University of Richmond School of Law) have posted Enduring Originalism (Georgetown Law Review Vol. 105, 2016) on SSRN. Here is the abstract:

Why should anyone be a constitutional originalist today? Why won’t originalism go away? These questions are related and important, and this Article tackles them head-on.

If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the “positive turn” in originalism. Defenses of originalism in this vein are “positive” in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: that we regard the framers’ law, and any other further lawful changes, as our law today. If we do not, then originalism is not the law and perhaps should be abandoned in favor of what is.

The positive turn points in the right direction but, we argue, does not go far enough. To be sound and complete, a positive-law argument for constitutional originalism must also have firm conceptual and normative grounds. Without conceptual and normative anchors, positive-law originalism is subject to drift in a jurisprudential sea in which “whatever is, is law.” An appropriately anchored theory depends on a defensible concept of the Constitution as positive law to justify a normative conclusion about how faithful participants in our legal system ought to interpret it in developing constitutional law. This Article explains how the classical natural law tradition of legal thought — which is also the framers’ tradition — supplies a solid jurisprudential foundation for constitutional originalism in our law today.

This isone of the papers from the San Diego Originalism Works-in-Progress conference last February.  Very interesting.


Judge Brett Kavanagh on Three Scalia Dissents that Will Become Law
Michael Ramsey

Patrick Gregory of Bloomberg BNA reports: Kavanaugh: 3 Scalia Dissents Will Become Law of Land.  From the introduction:

Three dissents by the late U.S. Supreme Court Justice Antonin Scalia will one day be the law of the land, D.C. Circuit Judge Brett M. Kavanaugh predicted...

Those dissents span four decades and issues of executive power, detention of U.S. citizens and deference to federal agencies.

But they all have one theme—liberty, Kavanaugh said.

Kavanaugh made the predictions during a keynote speech at an administrative law conference hosted by George Mason University law school, Arlington, Va.

The school will be named the Antonin Scalia Law School beginning July 1.

(I agree with all three dissents, but I won't spoil the suspense by saying what they are...).


David Kopel on the Ninth Circuit's Concealed Carry Decision
Michael Ramsey

Last week in Peruta v. San Diego, the en banc Ninth Circuit held that law prohibiting concealed carrying of firearms do not violate the Second Amendment (as incorporated by the Fourteenth Amendment).  At Volokh Conspiracy, David Kopel has an excellent extensive analysis, including these observations:

All 11 judges agreed that since the 1840s, American courts have interpreted the Second Amendment as allowing laws against the concealed carrying of arms. Heller itself said so, with approval. The majority opinion marshaled much precedent and scholarship in support of this point. Among the many sources cited was my article “The Second Amendment in the Nineteenth Century,” 1998 BYU Law Review 1359.

As the majority accurately stated, New Jersey was first to enact a ban on concealed carry, in 1686. Four centuries later, in 1966, New Jersey prohibited open carry. The enormous temporal gap illustrates the difference between concealed carry and open carry throughout most of American history.

No colony followed New Jersey. Nor did any state, until about three decades after the Second Amendment was ratified. The concealed carry ban in the new state of Kentucky was soon ruled unconstitutional in Bliss v. Commonwealth  (Ky. 1822). But as the Peruta majority accurately explicates, from 1849 onward, the rule was that concealed carry could be prohibited or restricted. …

The majority concluded the historical litany, “Finally, and perhaps most importantly, in Robertson v. Baldwin, 165 U.S. 275 (1897), the United States Supreme Court made clear that it, too, understood the Second Amendment as not protecting the right to carry a concealed weapon.” That case, with involved a merchant seaman and the 13th Amendment, said that all of the Bill of Rights, “from time immemorial,” had “been subject to certain well-recognized exceptions, arising from the necessities of the case.” For example, “the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons.”

As he further explains, the key difference between the majority and the four-judge dissent is whether to take into account the fact that California also bans open carry of firearms (so that, if there is no right to concealed carry, there is no ability to carry at all):

According to the dissenters, the Second Amendment expressly guarantees the right to bear arms; legislatures may regulate but not prohibit the right. So in the 19th-century cases, the legislature could choose to ban concealed carry while not even requiring a permit for open carry. The dissenters wrote that today, legislatures ought to allowed to reverse that preference: to restrict open carry, while allowing concealed carry under a fair and reasonable licensing system. (Citing Eugene Volokh, “Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and A Research Agenda,” 56 UCLA L. Rev. 1443 (2009).)

One reason to prefer concealed carry today might be to avoid the waste of police resources caused by people who have an anxiety disorder about guns and who call 911 because they see someone lawfully carrying openly. The medical term for anxiety disorders about firearms is “hoplophobia.” Ninan & Dunlop, Contemporary Diagnosis and Management of Anxiety Disorders (2006). Of course there are many people who dislike guns, spiders, snakes, etc., without the dislike rising to the level of a phobia.

The logic of the majority opinion would eventually force California to broadly allow open carry, once a case squarely forces the 9th Circuit to decide whether “the right to keep and bear arms” includes the right to bear arms in public places. Although the majority was agnostic on this unaddressed issue, the textual, historical and precedential basis for recognizing a right to bear arms is overwhelming; the only significant cases that hold to the contrary are cases that asserted that no one (or only National Guard members) have arms rights at all. The holding of Peruta does not foreclose a correct result about open carry in a future decision.

So in conclusion:

The dissent respected the Supreme Court’s Heller precedent. While regulation might be the subject of pro/con argument, prohibition of the right to keep and bear arms is categorically void. Although the Heller parties and amici had submitted much pro/con social science (as ably summarized in Justice Breyer’s dissent), the court was not interested. A categorical ban on the exercise of an express constitutional right is necessarily void. If a textual right is considered harmful today, the text should be changed, by the amendment process. Judges should not make their own “assessments” of the social value of an express constitutional right, even a controversial one, such as the right to bear arms.


Gautnam Bhatia on Indian Constitutionalism
Michael Ramsey

Gautam Bhatia (Yale Law School) has posted The Conservative Constitution: Freedom of Speech and the Constituent Assembly Debates on SSRN. Here is the abstract:

The framing of India’s Constitution is popularly considered to be a transformative moment: the culmination of a decades-long movement for political and economic self-determination, and the marker of a transition from a colonial regime maintained by coercion to a democratic republic. The crowning glory of the Constitution-making process, which reflects this transformation, is Part III: the fundamental rights chapter. Guaranteeing core civil and political rights such as the right to freedom of speech and expression, life and personal liberty, and equality before law, Part III of the Constitution appears to place the autonomous, self-determining individual at the heart of the Constitutional order. Nonetheless, the rights guaranteed by Part III are not absolute. They are subject, in many cases, to “reasonable restrictions.” Over the course of its history, the Supreme Court has tended to interpret these clauses in a way that the restriction has often swallowed up the right, and the State has been allowed a more or less free rein to pass rights-infringing statutes, or take rights-infringing executive acts. The question then must be asked: is the Court’s civil rights jurisprudence consistent with the transformative character of the Constitution? In this essay, I will argue that it is: for the reason that a closer look at the framing of the Constitution reveals that Part III was not intended to be transformative in the classical sense of creating a set of rights to serve as a bulwark in service of liberal individualism. By examining the Constituent Assembly Debates around the framing of the free speech clause, and placing it in both its historical context of colonial free speech law, as well as the future trajectory of the Supreme Court’s jurisprudence, I will attempt to demonstrate that as far as the nature and structure of fundamental rights is concerned the framing is better understood as conservative, than a transformative moment; and that consequently, the Supreme Court’s conservative approach to freedom of speech is more, rather than less, consistent with the intent of the framers.


Josh Blackman on Chief Justice Marshall, Marbury and the Due Process Clause
Michael Ramsey

At Josh Blackman’s Blog, Josh Blackman: #SCOTUS Holds that CJ Marshall’s Decision in Marbury v. Madison violates the Due Process Clause.

Professor Blackman begins with a discussion of Williams v. Pennsylvania (decided by the Court earlier this week):

In Williams v. Pennsylvania, the Chief Justice of the Pennsylvania Supreme Court ruled on a capital case that he participated in three decades earlier as a district attorney. The Due Process Clause required his recusal, the Court held, in light of his “personal involvement” in the case.

So, then, what of Chief Justice Marshall's participation in Marbury v. Madison?

As soon as I read this, I immediately thought that the majority opinion would also explain that John Marshall–who failed to deliver William Marbury’s commission as Secretary of State–was required by the Due Process Clause of the 5th Amendment to recuse! I was pleasantly surprised that Justice Thomas’s dissent made the same point:

Past Justices have decided cases involving their former clients in the private sector or their former offices in the public sector. See Frank 622–625. The examples are legion; chief among them is Marbury v. Madison, 1 Cranch 137 (1803), in which then–Secretary of State John Marshall sealed but failed to deliver William Marbury’s commission and then, as newly appointed Chief Justice, Marshall decided whether mandamus was an available remedy to require James Madison to finish the job. See Paulsen, Marbury’s Wrongness, 20 Constitutional Commentary 343, 350 (2003).

And applying Justice Kennedy's majority opinion in Williams to Chief Justice Marshall:

Well, it was John Marshall who applied the Great Seal to Marbury’s commission, and this (not delivery) was the final act that made the commission final. (See this amicus brief I wrote about the chronology of Marbury’s commission). Without the seal, Marbury would have had nothing to complain about. I would say that is “significant, personal involvement” with respect to a “critical decision.”

I kind of think Marshall's participation in Marbury was arguably a due process violation.  It was a longstanding principle of English common law that no man should be the judge of his own cause.    As Secretary of State, Marshall failed to perform his duty to deliver the commission.  That was a pretty big error, if delivery of the commission was necessary to complete the appointment (not so much, if the commission vested on signature).  In Marbury, Marshall held (some might say he went out of his way to hold) that delivery was not necessary to complete the appointment.  Very convenient for him!  (On the other hand, Justice Thomas is probably right about the common law).


Kar & Mazzone's Response to Whelan on the Senate and Appointments
Michael Ramsey

At NRO, Robin Bradley Kar and Jason Mazzone have a lengthy response to Ed Whelan's six-part critique of their article on filling Supreme Court vacancies.  It begins: 

In our essay, we consider Senate Republicans’ current plan to transfer President Barack Obama’s constitutionally designated power to appoint a replacement for Justice Scalia to an unknown successor. We set forth evidence showing that the Senate has never before attempted or effected such a deliberate inter-presidential transfer of power except in circumstances where there were contemporaneous questions about the status of the nominating President as the most recently elected President. No such questions exist with respect to President Obama’s nomination of Judge Garland to replace Justice Scalia. Hence, the Senate Republicans’ current plan marks a much greater departure from more than two centuries of historical precedent than has thus far been recognized. 

Whelan does a nice job of summarizing our main points in his first introductory post. As virtually all commentators—including Republican leaders—agree, history matters when determining the propriety and prudence of the Senate Republicans’ current plan. History can help clarify internal senatorial norms of fair dealing. History can also ripen into a constitutional rule that informs the best interpretation of constitutional text and structure. Accordingly, the historical tradition we identify clarifies pragmatic and constitutional risks with the Senate Republicans’ current plan that have not yet been fully appreciated. We suggest that Senate Republicans should rethink their current plan in light of these facts and—at the very least—explain why such risks do not weigh in favor of adhering to the practices the Senate has always followed with respect to Supreme Court appointments from the earliest days of the Republic. Our analysis and conclusions are deliberately apolitical. Were Senate Democrats to hatch a plan to transfer a Republican President’s Supreme Court appointment power to an unelected successor, we would deem it equally unprecedented and unwise. We also offer no view on whether, at the end of an appropriate process, Senators should vote to confirm Judge Garland.

In his series of posts, Whelan promises to show that our essay “provide[s] no reason for Senate Republicans to reconsider their course on the Garland nomination” (emphasis added). But for reasons we discuss below, Whelan does not deliver on this promise. Whelan brings his characteristic intelligence to bear on these issues, and he engages very carefully with our evidence and conclusions. As the leader of one of the nation’s preeminent conservative think tanks, Whelan has plenty of incentive to show we are wrong. Despite all of this, our analysis emerges undented—thus suggesting that the problem we describe in the essay is perhaps even more acute than we initially posited.

(The response is also available on SSRN here).

It's a strong response on the historical aspects of the debate, on which I have no particular expertise to comment.  I'll add just one thought:

Professors Kar and Mazzone describe the question as whether the Senate has "power to deliberately divest a sitting President completely of his Supreme Court appointment powers."  (This is from section 4 of their response, but it's repeated in substantially those terms elsewhere).  I think this is tendentious phrasing for two reasons.  First, it assumes the conclusion.  The President's "appointment powers" are to nominate a candidate and to appoint a nominee if the Senate gives advice and consent.  That is all the Constitution's text says on the matter.  Clearly President Obama retains these powers.  Kar and Mazzone want to use practice to create an additional presidential power to (I guess) make a nomination the Senate seriously considers, or maybe it's to fill the vacancy (they still seem a little unclear on what the President's power is).  It seems that they should instead state the issue in a straightforward way that doesn't assume any powers: must the Senate give individualized consideration to nominees?  The Constitution's text does not impose any such requirement (as I have argued), but perhaps practice does. 

Second, although some Republican Senators may be guilty of rhetorical excess, I think it wrong to say (as Kar and Mazzone do) that the Senate is "simply refus[ing] to consider any nominee from a particular President."  I'm confident that if the President were to nominate Paul Clement (or even a more moderate but originalist-oriented judge) the Senate would consider the nominee.  The Senate majority is refusing to consider the President's nominee, not because it holds a grudge against the President or doubts the President's legitimacy, but because it lacks confidence in the President's willingness to nominate a person with the judicial philosophy that the majority prefers.  So I would say that the question is whether the Senate can decide categorically that it doesn't think the President will nominate the sort of people the Senate wants to see appointed, or whether the Senate has to make this determination individually, and vote down nominees one by one.

Put that way, Kar and Bradley would have a reasonable argument that in the past the Senate has always considered Supreme Court nominees individually (subject to the exceptions they explain away).  As indicated here, I would still have trouble seeing this as a constitutional rule as opposed to just a courtesy.  But it does seem worth pointing out, as a matter of political science if not law, that something new is (or at least might be) going on here (regarding Supreme Court nominations; my impression is that this happens all the time for other nominations).  That, however, does not make it unconstitutional.