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34 posts from June 2016


Eric Segall Responds on Scalia and Snake Oil Originalism
Michael Ramsey

In response to this post, Eric Segall comments:

Thanks for engaging my work on The Originalism Blog, but I have to say this time you didn't address my main point and didn't summarize the piece accurately.

What made Scalia a snake-oil salesman was the combination of his originalist and judicial deference rhetoric. It is simply not enough for there to be a tie when it comes to outcomes based on originalist sources given Scalia's constant "committee of nine lawyers" rhetoric. My accusation stems from both sides and you only dealt with one.

I could list legions of cases where good faith originalists could disagree about the validity of a law, but a judge who talked the talk of deference like Scalia did would have had to say a tie goes to the law.

Even if I'm wrong, you should have addressed this argument.

Fair enough, I did not address the deference point (although I leave it to readers to decide whether Professor Segall's original post was more about Scalia's nonoriginalism or Scalia's nondeference).  Here is what Professor Segall said about Scalia and deference:

One scholarly response to the argument that Scalia constantly voted in a non-textualist, non-originalist way through huge swaths of constitutional law is that in many of the areas of law listed above, there are plausible, even if not persuasive, originalist arguments in support of Scalia's votes (arguments excavated by extremely motivated law professors, not Scalia himself). 

Even if there are such arguments, which I seriously doubt, such speculations were not available to Scalia, who also spent much of his career arguing that life-tenured federal judges should not invalidate decisions by other political actors absent clear text or strong historical evidence. For some so-called New Originalists like Randy Barnett or Ilya Somin, who openly admit that they believe in strong judicial review by, in Scalia's words, "a committee of nine unelected lawyers," maybe reasonable historical evidence may be enough to sustain judicial aggression. But Justice Scalia never argued for that position. Instead, in most of the areas of law listed above, he simply either ignored or mischaracterized historical evidence while often stridently accusing other Justices of playing fast and loose with the rules of the constitutional game.

I think this is partly true and partly not.  I agree that Scalia's democracy rhetoric sits a little uncomfortably with his originalism.  Pure democracy and originalism are not allies, in the sense that originalism envisions unelected judges overturning the enactments of modern majorities.  I think, though, there is less inconsistency here than appears at first.  Scalia's criticism was that "nine unelected lawyers" should not make social policy (that being a job, in our separated-powers system, for the elected branches).  However, he did think that the "nine unelected lawyers," acting as a court, should undertake a court's role of applying enacted law, according to its text and original meaning, even if that meant overturning democratic acts.  They key, to him, was whether the "unelected lawyers" were functioning as a court or as a committee to determine social policy.  Now Professor Segall might respond that in fact Scalia also acted as a committee to determine social policy (but that returns us to the question whether Scalia was dishonest, the subject of my original post).

I also agree that Scalia can be criticized for not articulating or implementing a burden of proof for showing the Constitution's original meaning.  Suppose one concludes that there are two possible original meanings of the text on a particular issue, one of which would invalidate a statute and one would not.  If one further concludes that the meaning leading to invalidation is 51% likely (versus 49% for the other), should a judge invalidate the statute?  Practitioners of originalism need an answer to this question.

It's not obvious to me, though, that the answer is the judge should defer; nor is it obvious to me that Scalia would necessarily have to reach that conclusion.  Scalia opposed judges making social policy.  Invalidating a law based on a 51% likelihood of unconstitutionality isn't making social policy (assuming unconstitutionality is based on original meaning).

Nonetheless, I agree it's a problem  that Scalia (to my knowledge) never  comprehensively addressed this point.  If he accepted judges invalidating statutes based on very close questions of original meaning, he might have admitted more of the tension between originalism and democracy.  If he had expressly demanded a higher standard for invalidity, he might have further developed his arguments in the areas Professor Segall rightly criticizes (such as affirmative action).

As an aside, the article Professor Segall links above -- Gil Seinfeld, The Good, the Bad, and the Ugly: Reflections of a Counterclerk in the Michigan Law Review First Impressions -- is an outstanding, balanced and entertaining critique of Justice Scalia.  On affirmative action, Professor Seinfeld also says this:

I don’t mean to intimate by any of this that the Justice was not a man of principle. I think he was. Nor do I mean to suggest that he was meaningfully worse along this dimension than many of his colleagues. I don’t think that’s true. What I think is that, as is true of many men and women of principle and of many other able and respectable jurists, Justice Scalia’s instincts about what was right and what was wrong sometimes overwhelmed him and caused him to discard the principles that he applied honorably in many other contexts (including cases in which those principles commanded results he disfavored).

Michael Perry on Fisher v. University of Texas
Michael Ramsey

Michael Perry (Emory University School of Law) has posted Fisher v. University of Texas at Austin: An Imagined Opinion, Concurring in the Judgment on SSRN. Here is the abstract:

In Fisher v. University of Texas at Austin, decided on June 23, 2016, the Supreme Court of the United States ruled that the race-based admissions system at issue in the case did not violate the Equal Protection Clause. Whether the ruling was correct is one question; whether, even if the ruling was correct, the reasoning was correct is, of course, a different question.

This brief paper is an imagined opinion — an opinion by an imaginary justice of the Supreme Court, Justice Nemo — concurring in the judgment. Justice Nemo believes that her concurring opinion is in alignment with the theory of judicial review elaborated and defended in this paper: Michael J. Perry, “A Theory of Judicial Review,” http://ssrn.com/abstract=2624978.

For another concurring opinion by Justice Nemo — her concurring opinion, last June, in the same-sex marriage case — see Michael J. Perry, “Obergefell v. Hodges: An Imagined Opinion, Concurring in the Judgment,” http://ssrn.com/abstract=2624022


Eric Segall on Justice Scalia’s “Snake Oil Originalism" (with my comments)
Michael Ramsey

Eric Segall at Dorf on Law: Supreme Ghosts, Snake Oil Originalism, and the 2015-2016 Term.  A central point is that Justice Scalia did not actually practice originalism:

Justice Scalia was of course best known for his frequent rants about how important text and history (read original meaning) are to judges who have to decide constitutional law cases. But the truth is that he did not come close to voting in an originalist fashion during his long career. I have set forth the proof of this accusation in long version here, and Judge Posner and I sketched it more briefly on this blog here

In the areas of affirmative action, freedom of speech generally and campaign finance reform specifically, federalism, gun rights, takings, standing, and voting rights, among many others, Justice Scalia voted to strike down laws where neither the text nor the original meaning behind the text supported his votes. Scalia once said he was a "feint-hearted" [sic] originalist but later walked that back and then said he was an "honest" originalist. The truth is that he was a snake-oil originalist who sold a product he did not use himself.

Professor Segall points to affirmative action as one place where Justice Scalia did not take an originalist approach:

One of the most important cases this term demonstrates Scalia's hypocrisy. In his thirty years on the bench, Justice Scalia voted to strike down every affirmative action plan he ever saw, and no doubt he would have done the same in Fisher v, Texas. Scalia always argued that the Constitution is color-blind, and thus the government using racial criteria to foster diversity and equality was constitutionally indistinguishable from the government using racial criteria to completely exclude an entire race of people from a government benefit. But at no time in his career did Scalia try to justify this strong policy preference with reference to the original meaning of the text of the Fourteenth Amendment. Given the ambiguous text of the that Amendment (which does not mention race) and the fact that the Amendment did not stand for color blindness from 1868-1954, and given Scalia's dislike of the "living Constitution," when exactly did the meaning of the 14th Amendment change? Scalia never provided an answer, which would be fine for "living constitutionalists" but not for someone who thinks the Constitution is frozen in time.

Finally, a critique of Justice Thomas’s Fisher dissent:

Justice Thomas, who seemed very lonely this term often dissenting all by himself, ended his dissent in the abortion case Monday with a quotation from the man whose shadow hung over the term so darkly: "The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is “a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application." The constant finger pointing and chest thumping by Scalia and Thomas over the years that they applied "law" but the other Justices were doing something else marginalized both of them throughout their careers. Constitutional law is now and has always been about the clash of values. Maybe Thomas wouldn't have been so lonely this term, and maybe Scalia would have authored a few more majority opinions, if they had been more transparent about their own values.

My reaction: I'm not unsympathetic to the claim that Scalia was not as faithful to originalism as he might have been.  But Professor Segall seems to overstate his case in several respects.  First, it seems obvious that Scalia used originalism a lot of the time, even if not all the time.  So the claim that he "sold a product he did not use himself" is clearly off the mark.  The question is whether he used it all the time, or just much of the time.  Realtedly, Scalia believed in stare decisis to an extent, so sometimes when he appeared to be nonoriginalist he may simply have been accepting nonoriginalist precedent (for example, he accepted that the equal protection clause applied to the federal government).  One could say he selectively picked his precedents, but that's a different claim.

Still, Segall may be right that Scalia did not firmly ground all of his decisions in originalism (or precedent).  That claim needs to be examined more closely, though.  I would think in terms of three categories: (a) cases where Scalia offered an orignalist justification for his view, but that justification seems unpersuasive to some people; (b) cases where Scalia did not offer an originalist justification but it's not obvious what the originalist answer is (because originalist materials in the area are underexamined or because the issue is not easily understood in originalist terms); and (c) cases where a consensus originalist answer is evident but Scalia nonetheless took a nonoriginalist approach to reach the opposite conclusion.  (A fourth category is where he followed strong nonoriginalist precedent).

To make his claim stick, Professor Segall needs to show a large number of cases in category (c).  But I'm not sure there are any cases in that category.  For example, gun rights -- one of his main examples -- is clearly in category (a).  Heller is an originalist opinion.  Professor Segall may not agree with it, but that doesn't make it wrong, and more importantly that doesn't make it dishonest.  I agree that Scalia did sometimes get the originalist answer wrong (in my view) (see here, for example, sharply criticizing his view in Bond v. US), but I don't see any reason to suppose bad faith.  Originalists disagree on hard questions.

More troublesome, to my mind, are the various issues on which Scalia took a strong view without offering a complete originalist (or precedent-driven) justification.  Affirmative action seems to fall in that category.  Professor Segall is right that Scalia never gave a complete originalist defense of his view, seeming instead to rest on what he thought was the obvious meaning of equality as colorblindness.  However, Scalia was not manifestly wrong on this point; originalist scholarship on the equal protection clause generally, and on affirmative action specifically, remains unsettled and incomplete.  I think he can be fairly charged with making too simplistic a conclusion, but that seems quite different from bad faith.  (A number of Professor Segall's other examples seem to belong in this category as well, and I would add a few more that he doesn't mention).

Thus the key to a charge of bad faith is the third category: where Scalia chose a nonoriginalist meaning over a consensus originalist meaning (without a basis in nonoriginalist precedent).  But are there any such cases?  I invite suggestions.


Evan Bernick: Reason's Republic
Michael Ramsey

Evan Bernick (Institute for Justice) has posted Reason’s Republic (NYU Journal of Law & Liberty) on SSRN. Here is the abstract:

Judicial review matters. Although a number of scholars have endeavored over the years to demonstrate that the courts offer only a “hollow” hope to advocates of significant social change, courts remain the last hope of legal redress for victims of unconstitutional government conduct. To amend Justice Robert Jackson’s oft-cited opening statement at the Nuremberg trials, judicial review can serve as a means of ensuring that power offers a tribute to reason — that particular exercises of government power are consistent with the rational principles set forth in our Constitution. When judges fail to give effect to constitutional limits on government power, people may be deprived of their liberty, their property, and even their lives arbitrarily — for no better reason than that the holders of political power will it to be so. Given the gravity of the stakes, it is of the utmost importance that judicial review be performed properly. And it is unsurprising that no end of accounts of how judicial review should be performed have been put forward.

Professor Tara Smith’s new book, Judicial Review in an Objective Legal System [Ed.: available here], stands out in a crowded field because of the boldness of its central claims and the elegance and persuasiveness of the arguments she advances in support of them. Smith contends that objectivity in the performance of judicial review is both possible and necessary — that judges can and must arrive at accurate knowledge of what our Constitution means and hold government officials to its terms. Absent objectivity, Smith argues, the rule of law established by the Constitution gives way to the rule of men: Government power is put in the service of will rather than reason, and might trumps individual rights. Drawing upon the twin disciplines of epistemology and political philosophy, Smith synthesizes an approach to judicial review that is tailored to ensure that we live under “a government of laws, and not of men.”

In this essay, I will begin by summarizing the principal features of Smith's account of judicial review; proceed to consider several potential objections to her proposed approach; and conclude by applying Smith’s approach to three areas of constitutional law that are in desperate need of a dose of objectivity.


Lawrence Solan on Public Meaning Originalism
Michael Ramsey

Lawrence Solan at Balkinization: The Corpus and the Constitution

Professor Solan begins with news out of Brigham Young University:

Linguists at Brigham Young University are launching a 100 million word corpus of general Founding-era English, which it has named “COFEA.”

A recent essay in the Yale Law Journal Forum by Associate Chief Justice Thomas Lee of the Supreme Court of Utah and his two law clerks (James C. Phillips and Danial M. Ortner) introduces the project as a potentially useful tool in the area of “public meaning originalism,” sometimes called “the new originalism.”  (essay here). 

He then notes the difficulty of interpretation using the corpus:

The difficulty, which both sides recognize, is the extent and nature of interpretive decisions that must be made after consulting the corpus.  Having a corpus of English from the founding-era is akin to having access to all of the file cards amassed by a lexicographer of the time, assuming the lexicographer to have accumulated large numbers of examples of the words that the dictionary will define. Sometimes that information will be sufficiently uniform to tell future generations how a word was understood at the time and what those who ratified the Constitution likely had in mind when they voted.  At other times, though, the corpus will reveal a range of meanings for a word, some closely related, some seemingly distant from one another.  Whether one chooses the “ordinary,” prototypical meaning of a term, or a more expansive sense of that word’s meaning for purposes of constitutional analysis is not a neutral decision.  For example, how much attention should courts pay to the statistical distribution of “keep and bare arms” over military and non-military contexts?  Such decisions are not linguistic.  They are, rather, legal or political.

Then, the advantages: 

At least when it comes to the contemporary laws, reviewing a corpus of general English appears to be a much more promising practice for learning about ordinary usage than does the current judicial trend of arguing about which dictionary best captures the word’s ordinary sense.  One reason for this is that the interpretive issues in play in most difficult statutory cases are more subtle than those on which the lexicographer is likely to focus in drafting a definition for broad, general usage.

And, in conclusion:

Whether or not one practices “original public meaning originalism” as a method of constitutional interpretation, constitutional analysts of all intellectual and political stripes pay at least some attention to how constitutional language was understood in the eighteenth century.  At the very least, having more information about this understanding should help to focus debate by providing information about the interpretive choices at the time of the founding.


Chris Land: The Cornerstone of the Origination Clause
Michael Ramsey

Chris Land (University of Minnesota School of Law, student) has posted Ways and Means Resolutions: The Cornerstone of the Origination Clause on SSRN. Here is the abstract:

The Origination Clause is a modern constitutional backwater, even though it was one of the most fiercely debated topics at the 1787 Constitutional Convention and a centerpiece of British parliamentary custom and usage.

This Article, for the first time, examines the role that Ways and Means resolutions played as agenda-setting vehicles for revenue legislation in the British House of Commons and colonial assemblies. These procedural instruments authorized the Crown to begin collecting taxes at the amended rates set by the unicameral resolution and set the stage for subsequent budgetary legislation enacted into law. Though only passed by the lower house and subject to further amendment, these resolutions were powerful agenda-setting devices within the legislative process that today offers a glimpse into the core meaning of the Origination Clause.

Part I places these issues into context, while Part II of this Article traces the development of Origination Clause jurisprudence from the early British period through the Constitutional Convention. Part III analyzes British and colonial practice surrounding Ways and Means resolutions and considers their effect as agenda-setting devices. Part IV considers the force of this agenda-setting purpose in light of germanity and Origination Clause precedent. Finally, Part V concludes by translating these ideas into the modern Congressional context and offers solutions for restoring substantive meaning to this important constitutional provision.


Amy Coney Barrett: Countering the Majoritarian Difficulty
Michael Ramsey

Amy Coney Barrett (Notre Dame Law School) has posted Countering the Majoritarian Difficulty (Constitutional Commentary,  forthcoming) on SSRN. Here is the abstract:

This Essay, written for a symposium on Randy Barnett’s new book Our Republican Constitution [Ed.: book available here], questions whether courts are well suited to the role Barnett would have them assume. Barnett is deeply skeptical of democratic majorities, and he argues that judicial deference to them is inconsistent with the basic premises of the Constitution. Rather than affording statutes a presumption of constitutionality and reviewing them under the lenient “rational basis” test, Barnett insists that courts ought to treat statutes as presumptively unconstitutional and review them under the more aggressive pre-New Deal standard. I express doubt about the historical support for Barnett’s approach, contend that it conflicts with the realities of the legislative process, and observe that Barnett might be overly optimistic about the institutional capacity of courts. That said, Barnett’s book brings welcome attention to the often misunderstood concept of judicial restraint. Many who embrace a general rule of deference to democratic majorities will nonetheless agree with Barnett that such deference does not authorize a court to distort statutory or constitutional text to save a statute. Fidelity to the law means going where it leads, and sometimes it leads to the conclusion that a law is unconstitutional.


Evan Bernick on Concealed Carry and Originalism
Michael Ramsey

At Huffington Post, Evan Bernick has an outstanding and insightful addition to the conversation on Peruta v. San Diego, originalism, and concealed carry: Against Narrow and Hidebound Originalism: On Peruta v. San Diego and the Right to Armed Self-Defense.  An excerpt:

Conservative and libertarian originalists might be inclined to praise the majority’s methodology, even if they regret the outcome. This inclination should be resisted. In only pursuing the question whether concealed-weapons bans were thought to be unconstitutional hundreds of years ago, the Peruta court undermined the rule of law and compromised the rights of ordinary Americans who seek to defend themselves and their families. The court also revealed that originalism of a certain variety—an originalism tethered to the original expected applications of constitutional concepts—is incapable of keeping government officials within constitutional limits today.

...  Indeed, for reasons explained by Professor Christopher Green in a thoughtful recent post on the Originalism Blog, it is possible for everyone at the time of the ratification of a particular constitutional provision to agree about how that provision ought to apply in a particular instance but nonetheless be wrong. [Ed.: see also here from Mike Rappaport].

Fidelity to the law of the land necessarily entails departing in appropriate cases from the beliefs and expectations of those who came before us. As Green puts 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.” We must add to and subtract from the collection of referents (things of a certain kind) that the Framers associated with particular concepts as needed when either the facts change or our knowledge of particular concepts develops.

And as applied to Peruta

The Ninth Circuit’s opinion in Peruta discloses the perils of relying upon original expected applications in evaluating the constitutionality of government conduct. During the time periods surveyed by the majority, courts consistently affirmed the right of citizens to carry firearms in public openly for protection. Thus, the carrying of firearms in public for self-defense was regulated but not prohibited. But because California law prohibits openly carrying firearms, San Diego and Yolo Counties’ requirement of a particularized reason for granting an application for a concealed-carry license effectively prohibits most law-abiding citizens from carrying firearms for self-defense outside the home. In focusing narrowly on the question whether concealed-weapons bans were thought unconstitutional in the past and failing to consider whether that conclusion was dependent on a social fact that is no longer present in California—namely, the existence of a legal regime that allows people to openly carry firearms—the majority missed the forest for the trees.

And in conclusion on originalism:

The enduring appeal and influence of originalism is attributable in substantial part to its promised capacity to maintain the rule of law. But the rule of law, understood as a legal regime in which the limits of government power are set by fixed, publicly-known principles of reason rather than the mere will of men, is incompatible with an interpretive approach that grounds legal authority in the subjective beliefs or expectations of any person or group of people. The rational principles in our law can only be given effect by the federal judiciary by means of objective constitutional interpretation. Objectivity in constitutional interpretation consists in disciplined, logic-guided, context-sensitive inquiry into the meaning of the Constitution’s language. Defining constitutional concepts like “the right of the people to keep and bear Arms” entails not only careful study of historical facts about word usage and linguistic practice but a firm grasp of the political philosophy that the Constitution is designed to implement as well as the function that each of its provisions plays in implementing that philosophy. (Though judges may not appeal to that political philosophy in contravention of the Constitution’s text.) It also requires us to draw upon any knowledge that we have subsequently acquired about particular concepts and their referents.

There's a lot I agree with here (and reading the whole post is important to get the full scope of the argument) -- but there are also some things I don't.  As to Peruta, if the rule at the founding was that open carry was allowed and concealed carry was not, the implication should be that a state can ban concealed carry but if it does, it can't ban open carry.  That's consistent (I think) with what the majority said in Peruta, although it implies something about California's gun laws that a lot of people who like Peruta aren't going to like.

On the broader point, I agree with Bernick (and Chris Green) that the controlling law is the text (given its original meaning), not what the framers thought the text would accomplish.  However, perhaps in disagreement with them, I think what the framers thought the text would accomplish is highly relevant to determining what the text's original meaning was.  To my mind, a conclusion contrary to what the framers thought the text meant should be disfavored (thought not precluded); it would require strong contrary evidence and probably some sort of unusual circumstances.  (As an aside, I don't think this issue is directly implicated by Peruta; the key issue in Peruta, I would say, is whether the court should have considered the concealed carry rule in isolation or in conjunction with the rest of California's gun laws -- which is something of a technicality).

I think there is a danger in dismissing too quickly what the framers thought about their text.  It's too easy to substitute what we think the text means (to us) for what we think the text meant in the founding era.  And I find particularly worrying the admonition that originalism "requires us to draw upon any knowledge that we have subsequently acquired about particular concepts and their referents."  That seems to me an invitation to substitute our wisdom (such as it is) for the framers'.


Ilya Somin on Originalism, Regulatory Takings and Murr v. Wisconsin
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Thoughts on the California amicus brief in Murr v. Wisconsin – an important takings case currently before the Supreme Court.  It begins:

In April, the state of Nevada filed an amicus brief that I coauthored on behalf of Nevada itself and eight other state governments in Murr v. Wisconsin, a major property rights case currently before the Supreme Court. The case addresses an important question about when property owners are entitled to compensation under the Takings Clause of the Fifth Amendment: whether a regulation that might otherwise be a taking might cease to be one merely because the owner of the affected lot also happens to own other property contiguous to it. Our brief is an unusual example of state governments standing up for property rights in the Supreme Court.

Recently, a group of nine other states, led by California, filed an amicus brief supporting the other side in the case, and in part responding to ours (pp. 23-26). While I am grateful to California for focusing on our arguments, I think their attempted rebuttal does more to highlight the weaknesses in Wisconsin’s position than to bolster it.

On the originalism aspects:

California contends that, because the original understanding of the Fifth Amendment did not contemplate compensation for regulatory takings, the Framers did not have “any view regarding the definition of the relevant property parcels” in such cases. Therefore, [its brief] suggest[s] that the text and original meaning imposes no constraints on state manipulation of parcel boundaries in order to avoid paying compensation. This argument ignores the actual text of the Fifth Amendment, which simply states that “just compensation” must be paid whenever private property is “taken” by the government, without making any distinction between different types of takings. It also ignores the scholarship we cite in our brief indicating that regulatory takings were in fact contemplated by the Founding Fathers, and by early court decisions, as part of the then-dominant “natural law” understanding of property rights (4-5). Whatever was true when the Fifth Amendment was first enacted in 1791, regulatory takings were a well-understood and widely accepted concept by the time it became applicable to the states as a result of the adoption of the Fourteenth Amendment in 1868. And most regulatory takings (including the one in this case) are initiated by state and local governments.

California also completely ignores the extensive early case law we cited indicating that takings compensation should follow parcel boundaries (6-9). Even if regulatory takings were not specifically contemplated at the time of the Founding, that does not mean the Supreme Court should just disregard the original understanding of the importance of individual parcels in American takings law.

The originalist foundation of regulatory takings doctrine is an important topic; among other things, the supposed lack of such foundation has been used by critics like Cass Sunstein to accuse Justices Scalia, Thomas and others of inconsistency in their pursuit of originalism.  It would be great if this case were to offer an opportunity for the Court (or at least some Justices) to set out an originalist defense (which was, one must admit, sadly lacking in the key modern case Lucas v. South Carolina Coastal Council).


Originalism and the Second Amendment
Mike Rappaport

I thought I would weigh in on the dispute between Mike Ramsey and Chris Green on originalist theory and the Second Amendment. Ramsey writes:

"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."

In response, Chris Green argues that if the Second Amendment had a certain meaning, it would not necessarily bind us if the people at the time applied it in an incorrect way. The meaning would be binding, not the application.

Understood in this way, I don't think Mike and Chris are necessarily disagreeing. I interpret Chris as arguing that only the meaning of the language is binding as such. And I interpret Mike as saying, that might be true, but the consensus in favor of one interpretation of the language is such strong evidence, that nothing could realistically outweigh it. And therefore the meaning of the Second Amendment language could theoretically be different than the consensus, but it is extremely unlikely to be so.

Chris, however, points out one way the consensus at the time of the Framing allowing prohibitions on concealed carry could be overridden (or shown not to be dispositive). If it turned out that prohibitions on concealed carry were never paired with prohibitions on open carry, then we would not know that such concealed carry prohibitions were constitutional when combined with open carry prohibitions. The concealed carry prohibitions might have been allowed only because people were allowed to open carry. That is, the Second Amendment might allow certain restrictions on the manner of exercising one's rights, if they allowed people alternative ways of exercising that right. (Compare the time, place and manner test of the First Amendment.)

I agree with Chris here, assuming the contingencies he specifies actually held. This shows that it is always important to keep in mind the distinction between the meaning of a provision and the evidence in favor of a meaning. Sometimes the evidence can look conclusive, but under certain circumstances, it might not be.

MIKE RAMSEY ADDS:  My initial thoughts may have been stated imprecisely.  I don't disagree with anything Mike Rappaport or Chris Green say on this point, though we may have different emphases.