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12 posts from April 2021


Judge James Ho on Lower Court Originalism
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: Originalism in the Lower Courts: Judge Ho's dissental in Texas v. Rettig.  From the introduction: 

[Friday] the Fifth Circuit denied rehearing en banc in Texas v. Rettig. In February, the three-judge panel (Barksdale, Haynes, and Willett) issued a substitute opinion in that case. This case presented a challenge to an ACA regulation. The panel turned away Texas's nondelegation doctrine challenge.

Judge Ho, and four of his colleague, dissented from the denial of rehearing en banc: Judges Jones, Smith, Elrod, and Duncan. Here, I'd like to praise the five judges who dissented. They embraced a central plank of originalism in the lower courts: the refusal to extend non-originalist precedents, unless that extension is justified by the original mening of the Constitution. I have written about this concept in my article, Originalism and Stare Decisis in the Lower Courts.

And from Judge Ho's opinion (favorably citing San Diego-based Judge Patrick Bumatay of the Ninth Circuit):

As judges, we have sworn an oath to uphold the Constitution. So if we are forced to choose between upholding the Constitution and extending precedent in direct conflict with the Constitution, the choice should be clear: "[O]ur duty [is] to apply the Constitution—not extend precedent." NLRB v. Int'l Ass'n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 229, AFL-CIO, 974 F.3d 1106, 1116 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc)….

"As inferior court judges, we are bound by Supreme Court precedent. Yet[] . . . judges also have a 'duty to interpret the Constitution in light of its text, structure, and original understanding.'" Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc) (quoting NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring)). "While we must faithfully follow [Supreme Court] precedent . . . , '[w]e should resolve questions about the scope of those precedents in light of and in the direction of the constitutional text and constitutional history.'" Id. (quoting Free Enter. Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667, 698 (D.C. Cir. 2008) (Kavanaugh, J., dissenting), aff'd in part, rev'd in part and remanded, 561 U.S. 477 (2010)). See alsoe.g.Alvarez v. City of Brownsville, 904 F.3d 382, 401 (5th Cir. 2018) (en banc) (Ho, J., concurring) (noting that an important purpose of rehearing en banc is "to better align our precedents with the text and original understanding of the Constitution" "where the Supreme Court has not yet ruled").

SOMEWHAT RELATED: Also on Friday, the Supreme Court vindicated Judge Bumatay's dissent in Tandon v. Newsom, summarily reversing the Ninth Circuit on the constitutionality of California's covid-oriented restrictions on indoor religious services. (Via Professor Blackman, here.)


Seven (?) Originalist-Oriented Members on the Presidential Commission on the Supreme Court
Michael Ramsey

President Biden established the Presidential Commission on the Supreme Court of the United States on Friday by executive order.  The White House press release calls it "bipartisan group of experts on the Court and the Court reform debate."  There's some truth to that.  Already there's been widespread commentary and criticism regarding the membership, which I won't try to catalog.  I'll note one aspect of the membership:  by my count, there are seven originalist-oriented members:  Jack Balkin (Yale), Will Baude (Chicago), Judge Thomas Griffith (D.C. Circuit), Caleb Nelson (UVA), Adam White (GMU-Scalia), Keith Whittington (Princeton, political science), and me [ed.: well, that last one was unexpected].  Of course, that's out of 36.

At Volokh Conspiracy, Ilya Somin has more.


Kevin Tobia, Brian Slocum & Victoria Nourse: Statutory Interpretation from the Outside
Michael Ramsey

Kevin Tobia (Georgetown University Law Center; Georgetown University - Department of Philosophy), Brian G. Slocum (University of the Pacific - McGeorge School of Law) and Victoria Nourse (Georgetown University Law Center) have posted Statutory Interpretation from the Outside (Columbia Law Review, forthcoming) (67 pages) on SSRN.  Here is the abstract:

How should judges decide which linguistic canons to apply in interpreting statutes? One important answer looks to the inside of the legislative process: Follow the rules that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the rules that would guide an ordinary person’s understanding of the legal text. Empirical scholars have studied statutory interpretation from the inside — revealing what rules drafters follow — but never from the outside. This Article is the first empirical study of ordinary meaning as determined by ordinary people.

We first offer a novel framework for empirically testing interpretive canons. We argue that any empirical inquiry should test whether ordinary people implicitly invoke a canon in accordance with the circumstances that trigger its applicability. Implementing our framework, we recruited 4,500 people from the United States, as well as a sample of U.S. law students, to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions. The results reveal that many existing interpretive canons reflect how ordinary people evaluate rules, but some popular canons do not.

The empirical findings support several implications, even beyond providing crucial evidence about which traditional canons “ordinary meaning” actually supports. First, interpretive canons are not a closed set. We discovered new canons that are not yet reflected as legal canons, including one we term the “non-binary gender canon” and another the “quantifier domain restriction canon.” Second, the results support a new understanding of the ordinary meaning doctrine itself, as one focused on the ordinary interpretation of rules, as opposed to the traditional focus on “ordinary language” generally. Furthermore, ordinary people interpret rules with an intuitive anti-literalism. This finding in particular challenges textualist assumptions about ordinary meaning.

We hope the Article initiates a new research program in empirical legal interpretation. If ordinary meaning is relevant to legal interpretation, interpreters should look to evidence of how ordinary people actually understand legal rules. We see our experiments as a first step in that new direction.

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


LeFrak Conference at Michigan State on Free Speech and Intellectual Diversity on Campus
Michael Ramsey

Via Jonathan Adler at Volokh Conspiracy, today through Saturday the Michigan State University Department of Political Science's LeFrak Forum on Science, Reason and Modern Democracy is sponsoring a conference titled "Freedom of Speech and Intellectual Diversity on Campus."  Here is the schedule:

Keynote Address - Thursday, April 8, 5:00-6:30 pm EST

Randall Kennedy, "The Race Question and Freedom of Expression." Randall Kennedy is the Michael R. Klein Professor at Harvard Law School, preeminent authority on the First Amendment in its relation to the American struggle for civil rights.

Day One: Intellectual Diversity - Friday, April 9
11:30 am - 1:00 pm EST
Panel 1: What are the empirical facts about lack of intellectual diversity in academia and what are the causes of existing imbalances?

Paper: Lee Jussim, Distinguished Professor and Chair, Department of Psychology, Rutgers University, author of The Politics of Social Psychology. 

Discussant: Philip Tetlock, Annenberg University Professor, University of Pennsylvania, author of “Why so few conservatives and should we care?” and Cory Clark, Visiting Scholar, Department of Psychology, University of Pennsylvania, author of “Partisan Bias and its Discontents.”

2:00 pm - 3:30 pm EST

Panel 2In what precise ways and to what degree is this imbalance a problem?

Paper: Joshua Dunn, Professor and Chair, Department of Political Science, University of Colorado, co-author of Passing on the Right: Conservative Professors in the Progressive University.

Discussant: Amna Khalid, Associate Professor of History, Carleton College, author of “Not A Vast Right-Wing Conspiracy: Why Left-Leaning Faculty Should Care About Threats to Free Expression on Campus."

4:00 pm - 5:45 pm EST

            Panel 3What is To Be Done?

Paper: Musa Al-Gharbi, Paul F. Lazarsfeld Fellow in Sociology, Columbia University and Managing Editor, Heterodox Academy, author of “Why Care About Ideological Diversity in Social Research? The Definitive Response.”

Paper: Conor Friedersdorf, Staff writer at The Atlantic and frequent contributor to its special series “The Speech Wars,” author of “Free Speech Will Survive This Moment.”

Day Two: Freedom of Speech - Saturday, April 10

11:30 am - 1:00 pm EST

Panel 1:  An empirical accounting of the recent challenges to free speech on campus from left and right. What is the true character of the problem or problems here and do they constitute a “crisis”?

Paper: Jonathan Marks, Professor and Chair, Department of Politics and International Relations, Ursinus College, author of Let's Be Reasonable: A Conservative Case for Liberal Education.

Respondent: April Kelly-Woessner, Dean of the School of Public Service and Professor of Political Science at Elizabethtown College, author of The Still Divided Academy

2:00 pm - 3:45 pm EST

Panel 2: But is Free speech, as traditionally interpreted, even the right ideal? -- a Debate 

Ulrich Baer, University Professor of Comparative Literature, German, and English, NYU, author of What Snowflakes Get Right: Free Speech and Truth on Campus

Keith Whittington, Professor of Politics, Princeton University, author of Speak Freely: Why Universities Must Defend Free Speech.

4:30 pm - 6:15 pm EST

Panel 3: What is To Be Done?

Paper: Nancy Costello, Associate Clinical Professor of Law, MSU. Founder and Director of the First Amendment Law Clinic -- the only law clinic in the nation devoted to the defense of student press rights.  Also, Director of the Free Expression Online Library and Resource Center.

Paper: Jonathan Friedman, Project Director for campus free speech at PEN America – “a program of advocacy, analysis, and outreach in the national debate around free speech and inclusion at colleges and universities.”

The LeFrak Forum is an outstanding project that should be better known than it is.  I participated in one of their conferences (on immigration law and policy) several years ago.  Among other things, their commitment to intellectual diversity is notable.


New Book: "The Hollow Core of Constitutional Theory" by Donald Drakeman
Michael Ramsey

Recently published, by Donald Drakeman (Notre Dame): The Hollow Core of Constitutional Theory: Why We Need the Framers (Cambridge University Press 2021).  Here is the book description from the publisher:

The Hollow Core of Constitutional Theory is the first major defense of the central role of the Framers' intentions in constitutional interpretation to appear in years. This book starts with a reminder that, for virtually all of Western legal history, when judges interpreted legal texts, their goal was to identify the lawmaker's will. However, for the past fifty years, constitutional theory has increasingly shifted its focus away from the Framers. Contemporary constitutional theorists, who often disagree with each other about virtually everything else, have come to share the view that the Framers' understandings are unknowable and irrelevant. This book shows why constitutional interpretation needs to return to its historical core inquiry, which is a search for the Framers' intentions. Doing so is practically feasible, theoretically defensible, and equally important not only for discovering the original meaning, but also for deciding how to apply the Constitution today.

Next week (Thursday, April 15) the Federalist Society will host an online discussion of the book, featuring Lawrence Solum and Keith Whittington:  Original Meaning or Framers' Intent? A New Book and an Age-Old Debate.  From the Federalist Society announcement:

In his new book, The Hollow Core of Constitutional Theory: Why We Need the Framers, historian Donald Drakeman argues that in order to properly interpret the Constitution, one must consider the will of the lawmakers—in this case, those founding fathers who framed the charter—and, more specifically, their decisions about both the ends and the means of the provisions they designed. In the face of ascendant "public meaning" originalism, this book seeks to revive the importance of the framers' intent in constitutional theory and interpretation.

Joining Mr. Drakeman to review his new book are two distinguished constitutional theorists, Professors Lawrence Solum of the University of Virginia and Keith Whittington of Princeton. All three will offer their views on the matters at hand in a discussion moderated by Judge Britt Grant of the 11th Circuit Court of Appeals.

Registration information for the event is at the link.


Textualism and War Powers
Michael Ramsey

I have posted my article Textualism and War Powers (University of Chicago Law Review, Vol. 69, No. 4, p. 1543, 2002) (96 pages) on SSRN.  It's from quite a while back but I think it remains a significant contribution.  Here is the abstract:

This Article explores the eighteenth-century use of the phrase "declare war," with the goal of shedding some light upon the original understanding of the Constitution's Declare War Clause It finds that "declaring" war in the eighteenth century had a broader meaning than is commonly supposed. Nations could declare war by formal proclamation, but nations could also "declare" by action alone. An armed attack showing an intent to settle differences between nations by force created a state of war between those nation& Launching such an attack, even in the absence of a formal proclamation, was called "declaring" war. As the Article explains this provides a textual basis for the common assertion that Congress's constitutional power "to declare War" broadly encompasses the power to initiate warfare. It also refutes the claim that the President can order military attacks upon foreign powers without Congress's approval so long as no formal declaration is involved. The Article further argues however, that since Congress's constitutional power is only to declare war (by proclamation or by authorizing an attack), presidential actions that do not create a state of war-even if they involve the use of military force or the threat or likelihood of war-do not require congressional authorization.

The article was inspired by the apparent disconnect between the common assumption in the post-ratification period that the Constitution limited the President's independent ability to initiate war and the text's reference only to the power to "declare" war -- which sound like a reference only to formal pronouncements.  As the abstract indicates, on further investigation it seemed clear (to me anyway) that "declare" war was used in a much broader sense in the eighteenth century, referring not just to formal proclamations but also to commencement of hostilities.  Thus there actually isn't any tension between the text and the common founding-era interpretation of it.

Saikrishna Prakash in a subsequent article undertook a much more broad ranging investigation of eighteenth century sources and reached a similar conclusion about the meaning of "declare."  I think it's now a fairly common view among textualist/originalists.

Mike Rappaport adds: I should add that I believe this article is one of the most important articles produced during this recent period of originalist renaissance.  It took the text seriously, explained how it accorded with constitutional purpose and history, and did so with a novel and persuasive interpretation.  Of course, the interpretation wasn't novel in the sense that the Framers' generation did not know it.  Rather, later generations did not have the knowledge that the Framers' generation had.   


Aaron Tang on Finding a Judicial Middle Ground
Michael Ramsey

At The Atlantic, Aaron Tang (Davis): The Simple Principle That Can Fix American Law -- What if a coherent legal philosophy could exist between the poles of living constitutionalism and originalism?  From the introduction:

... As a field, the law lacks a satisfying, middle-ground response to the core philosophical question that judges must face: By what legal theory should they decide difficult cases—ones in which the law is unclear and where any ruling risks inflaming division among the American people?

Liberal and conservative judicial approaches are, of course, well established. The late Ruth Bader Ginsburg captured the former approach when she testified during her confirmation hearings that the Constitution should be interpreted so as to govern “not just for the passing hour, but for the expanding future.” By contrast, her conservative successor, Amy Coney Barrett, is now the fourth self-professed originalist on the Court.

The rift between living constitutionalism and originalism is not merely an esoteric debate among judges. It is equally salient—and equally partisan—among the broader public. A recent Pew Research poll found that while 88 percent of liberal Democrats believe that the Supreme Court should “base its rulings on what the Constitution means in current times,” 79 percent of conservative Republicans say the Court should “base its rulings on the Constitution’s original meaning.”

But what is the judicial philosophy that occupies the middle ground? There is, of course, no way to split the temporal difference between originalism and living constitutionalism. Either the law’s meaning is fixed in time, or it isn’t. Some prominent academics have worked to re-brand originalism as itself a neutral and centrist approach. But on balance, the results have tended to track conservative views.

What America lacks today, in other words, is a judicial philosophy that can mediate the usual theories advanced on the left and the right. This absence might be every bit as much of a problem for our legal culture and legal system as the absence of centrist judges. Or, rather, it might be the underlying problem altogether. For without a compelling philosophy of judicial moderation, what hope is there for the reemergence of judicial moderates?

And from later on:

The year 2020 will long be remembered as a year of tragic and unparalleled adversity, from the onset of the deadly global pandemic, to glaring reminders of society-wide racial injustice, to Donald Trump’s ill-fated effort to steal the election. But even as we grieved, worried, and mobilized for change, something encouraging happened, unexpectedly, at the Supreme Court: The justices stumbled onto the beginnings of a compelling theory of judicial moderation.

It started last summer, at the end of one of the most monumental terms in recent history. Over a 25-day sprint, the Court handed down high-profile opinions concerning the rights of LGBTQ workers; the fate of hundreds of thousands of undocumented immigrants who had been brought to America as small children; impassioned efforts to obtain Trump’s private financial records; a controversial Louisiana abortion regulation; religious-school vouchers; and whether much of eastern Oklahoma remains an Indian reservation.

These cases raised genuinely difficult legal questions with enormous stakes. And in all of them, the Court’s decisions followed an intriguing logic. Rather than resting solely on some highly debatable conclusion as to a one-and-only “correct” meaning of the law—whether rooted in arguments over original meaning or in evolving precedent or societal values—the Court justified its rulings by pointing to an additional rationale: the goal of minimizing the harm of its decisions. The Court did so in a particular way—by identifying and ruling against the side with the greatest ability to avoid the harm it would suffer in defeat. (I’ve previously called this the “least harm principle.”)

I suspect, though, that the "least harm principle," at least in the hands of liberal judges or law professors, mostly yields liberal results (making it, of course, not a middle ground but repackaged liberal living constitutionalism).  But Professor Tang is mistaken in thinking that originalism and (liberal) living constitutionalism are the relevant poles.  As I've argued before, originalism is actually the middle ground between conservative living constitutionalism and liberal living constitutionalism, yielding conservative results sometimes and liberal results (or intermediate results) other times.  See, e.g., here (and also here and here).


David Kopel & George Mocsary: Words Missing from the Ninth Circuit's Young v. State of Hawaii
Michael Ramsey

David B. Kopel (Independence Institute; Denver University - Sturm College of Law; Cato Institute) and George A. Mocsary (University of Wyoming College of Law) have posted Errors of Omission: Words Missing from the Ninth Circuit's Young v. State of Hawaii (21 pages) on SSRN.  Here is the abstract:

The en banc Ninth Circuit on March 24 held that the Second Amendment right does not encompass the open handgun carriage. The decision in Young v. State of Hawaii complements the Circuit’s 2016 en banc Peruta v. San Diego, which held that concealed carry is categorically outside the Second Amendment. Thus, according to the Ninth Circuit, a state may ban both open and concealed carry. There is no right to bear handguns. According to the Ninth Circuit, carrying arms in public for defense is “not within the scope of the right protected by the Second Amendment.” This Article examines the majority opinion on its own terms. Most revealing about the majority opinion is how it selectively quotes the sources that it cites. When the Ninth Circuit’s sources are examined in detail, they support the conclusion opposite from the one reached by the court. Although carrying defensive arms may be regulated, it may not be prohibited.

Professor Kopel has more at Volokh Conspiracy, including excerpts from the article.  From part of the evaluation of the opinion:

Young's lengthy survey of legal history begins in medieval England. The thesis of Young is that the 1328 Statute of Northampton outlawed all gun carrying except by persons in government service. Further, argues Young, the prohibition against carrying was part of English law ever since, was adopted in the American colonies, and continued to be widely enforced to prohibit carry well into the nineteenth century in the United States.

The problem with the thesis is that after 1600, the English courts did not so interpret the Statute. Rather it was applied only to carriers who caused a breach of the peace that terrorized the public.

According to the Ninth Circuit, the 1615 King's Bench case Chune v. Piott concluded that sheriffs could arrest a person carrying arms in public "notwithstanding he doth not break the peace." Justice Croke's seriatem opinion, however, reads

[I]f contrary to the Statute of Northampton, he sees any one to carry weapons in the high-way, to the terror of the King's people; he ought to take him, and arrest him, notwithstanding he doth not break the peace in his presence. (emphasis added).

Justice Houghton's opinion adds that the sheriff may arrest someone, "upon suspition."

By omitting "in his presence," Young turns Chune's actual rule (sheriffs can arrest even if they did not see the breach of the peace) into a different rule (sheriffs can arrest when there is no breach of the peace).


If the Supreme Court Reviews Young v. Hawaii, It Might Well Make Bad Law Even Worse
David Weisberg

The recent en banc decision of the U.S. Court of Appeals for the Ninth Circuit in Young v. Hawaii held (7 to 4) that Hawaii’s restrictions on the open carrying of firearms in public do not violate the Second Amendment.  Prof. Ramsey wonders whether the case will reach the Supreme Court.  I fear that, if it does, the Court will only create further confusion and muddle in an area where it has already made bad law.

I’ve written an SSRN article entitled, “A Unique, Stand-Alone Second Amendment Implies that Both Heller and McDonald  Were Wrongly Decided.”  As we know, D.C. v. Heller, 554 US 570 (2008), held that the District violated the Second Amendment when it prohibited any resident from possessing an operable handgun in the home for self-defense.  McDonald v. Chicago, 561 US 742 (2010), held that, because the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the States, similar regulations imposed in Chicago also violated the amendment.  

The title of my article constitutes full disclosure, but limited space prevents full exposition of my arguments.  One startling fact can, however, be noted: Justice Scalia’s opinion for the 5 to 4 Heller majority—which he referred to in 2013 as his “legacy opinion”—is literally self-contradictory on its face.  Under the heading “Meaning of the Operative Clause,” Justice Scalia asserted: “[I]t has always been widely understood that the Second Amendment…codified a pre-existing right.  The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’ ”  (554 US at 592, emphasis in original.)  But, under the heading “Relationship Between Prefatory Clause and Operative Clause,” we find: “Does the preface fit with an operative clause that creates an individual right to keep and bear arms?  It fits perfectly, once we know the history that the founding generation knew[.]”  (554 US at 598.) 

Thus, in the course of six pages, the right to keep and bear arms morphed from one that (with Justice Scalia’s own emphasis) pre-exists the Second Amendment into one that the amendment “creates.”  A right can’t pre-exist, and also be created by, an amendment—it’s one or the other, but not both.  The fact that a judicial opinion is self-contradictory doesn’t prove that its announced result is bad law.  But a logically incoherent argument surely would make any thoughtful person extremely cautious about accepting the conclusion that argument supposedly supports. 

I think the fundamental error in Justice Scalia’s Heller opinion was his belief that “self-defense…was the central component of the right” referred to in the Second Amendment.  (554 US at 599, emphasis in original.)  Thus, the right referred to in the amendment partakes of, or is somehow related to, the natural right of self-defense.  But Justice Scalia also asserts that “nothing 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…schools and government buildings[.]”  (554 US at 626.) 

All these exceptions are inconsistent with the notion that self-defense is “the central component” of the right referred to in the amendment.  Felons and the mentally ill could all use firearms while legitimately acting in self-defense.  Similarly, anyone could have properly acted in self-defense, even if he or she used a firearm in a school or a public building.  If self-defense is “the central component” of the amendment, and all these persons might have used a firearm for legitimate self-defense, why are the “longstanding prohibitions” valid?   There are a multitude of other objections to Justice Scalia’s invocation of a link between the amendment and the right of self-defense, but space is wanting.    

I will simply submit that the source of the pre-existing right referred to in the Second Amendment is always positive law embodied in the constitution and laws of the States.  Therefore, the Second Amendment is violated only if the federal government purports to infringe a right granted by the laws of some State.  If, e.g., Congress purported to ban possession of handguns anywhere in the U.S., that ban would violate the Second Amendment where the law of a State or locality permitted such possession.

Moreover, if I’m correct that the amendment bars the federal government from infringing upon rights granted by a State’s law, then it would be logically impossible to incorporate the amendment in the Due Process Clause and apply it against the States, notwithstanding the contrary conclusion in McDonald.  If the amendment applies to the States, that would mean that the States, like the federal government, may not infringe upon the right of the people to keep and bear arms.  But Illinois banned the possession of handguns in Chicago.  Thus, Chicagoans had no right, under Illinois law, to possess handguns.  The Second Amendment (Justice Scalia emphatically insisted, when he was being duly careful) refers only to pre-existing rights; it does not create any rights.  Therefore, it is logically impossible for Illinois to infringe upon a right Chicagoans do not have.

Alas, none of the foregoing would likely figure into the Supreme Court’s review of Young v. Hawaii.  In my opinion, the majority reached the correct result in Young.  Yet the very first sentence of the dissent boldly asserts: “The Second Amendment to the United States Constitution guarantees ‘the right of the people to keep and bear Arms.’”  (Emphasis in original.)  But it doesn’t.  Putting the prefatory clause aside, the amendment says the right of the people to keep and bear arms shall not be infringed by the federal government. If that “guarantees” anything, it guarantees only that the right of the people to keep and bear arms shall not be infringed by the federal government.  And, in saying that that right shall not be infringed by the federal government, the amendment does not say that that right (which, on my analysis, exists only to the extent granted by the constitutions and laws of a State) shall not be limited, or even extinguished, by the State that created the right in the first place. 

Finally, I don’t think stare decisis could reasonably be invoked to preserve Heller and McDonald.  The very fact that Hawaii, like many other States, still stringently regulates firearms indicates that those two precedents have not ushered in a new regulatory regime that could not readily be dismantled.  Lawrence v. Texas (2003) overruled Bowers v. Hardwick (1986) only 17 years after that case was decided; Heller was decided 13 years ago.  And one might well ask what weight stare decisis should be given when the most directly relevant precedent, McDonald, is explicitly derived from a case, Heller, that features an opinion that is self-contradictory on its very face.  

In an ideal world, a Supreme Court review of Young would result in overruling both Heller and McDonald, but, last time I looked, we weren't living in an ideal world.  The best outcome one could realistically hope for is that, rather than compounding its previous grievous errors, the Court would affirm the Ninth Circuit's decision and leave it at that.

James Pfander & Elena Joffroy: Slavery and State Equality Over Time
Michael Ramsey

James E. Pfander (Northwestern University School of Law) and Elena Joffroy (J.D., Northwestern '20) have posted Equal Footing and the States "Now Existing": Slavery and State Equality Over Time (Fordham Law Review, forthcoming) (29 pages) on SSRN.  Here is the abstract:

This Essay, a contribution to Fordham’s Symposium on the Federalist Constitution, reexamines the question whether the Constitution empowered Congress to ban slavery in the territories. We explore that question by tracking two proposed additions to the Constitution, one that would empower Congress to ban the migration and importation of enslaved persons to all new states and territories and one that would oblige Congress to admit new states on an equal footing with the old. We show that the Federalists supported and the Convention adopted the migration provision, enabling Congress to restrict slavery to the states “now existing.” But the Federalists opposed and the Convention rejected the equal footing doctrine.

Over time, things changed. In debates over the admission of Missouri to the Union as a slave state, Southerners offered a popular, if implausible, reinterpretation of the Now Existing Caveat to the Migration and Importation Provision that rendered it practically irrelevant to the expansion of slavery. What is more, Southerners pressed to extend a judge-made equal footing doctrine, urging that new states were entitled to legalize the ownership of people just as the old states were. Chief Justice Roger Taney wrote the Southern interpretation into the Constitution in the Dred Scott v. Sandford opinion, ignoring the Now Existing Caveat and embracing the equal footing doctrine as a matter of constitutional compulsion. While Dred Scott has not survived, the equal footing doctrine now undergirds the idea of equal state sovereignty in such U.S. Supreme Court decisions as Shelby County v. Holder. Meanwhile, the Federalist constitutional settlement has all but disappeared from view.