The Originalism Blog

Pratheepan Gulasekaram: The Second Amendment's 'People' Problem [Updated]Michael Ramsey

Pratheepan Gulasekaram (Santa Clara University School of Law) has posted The Second Amendment's 'People' Problem (Vanderbilt Law Review, forthcoming) (51 pages) on SSRN.  Here is the abstract:

The second amendment has a “people” problem. In 2008, Heller v. District of Columbia expanded the scope of the second amendment, grounding it in an individualized right of self-protection. At the same time, Heller’s rhetoric limited the “the people” of the second amendment to “law-abiding citizens.” In 2022, NYSRPA v. Bruen doubled-down on the amendment’s self-defense rationales, but once again framed the right as one possessed by “citizens.” In the period between the two Supreme Court cases, eight federal courts of appeals wrestled with the question whether the right to keep and bear arms is a citizen-only right. Although those courts proffered varying perspectives on the meaning of “the people,” they uniformly rejected challenges to the federal criminal ban on possession by unlawfully present persons and nonimmigrants. In addition to the federal criminal ban, the immigration code allows for deportation of all noncitizens, including permanent residents, for firearms-related violations. In combination, the Supreme Court’s rhetoric, lower federal court decisions, and federal criminal and immigration statutes excise noncitizens from the “the people” of the second amendment.

This Article is the first to examine the relationship between “the people,” immigration status, and the right to keep and bear arms, in the wake of both Heller and Bruen. My analysis argues that courts undertheorize the systemic effects of constricting “the people” to citizens, or more recently, countenance historical inquiries that yield incoherent results. Intratextual comparison of “the people” of the second amendment with “the people” of the first and fourth amendments fares no better. That appraisal also commands broader inclusiveness for the second amendment’s rightsholders than current jurisprudence permits. This Article concludes that a more coherent theory of second amendment rightsholders would necessarily include most noncitizens, at least when the right is grounded in self-defense from interpersonal violence. This conclusion casts doubt on current federal law that categorically criminalizes possession by certain groups of noncitizens, as well as deportation rules that banish all noncitizens for firearms violations. More capacious interpretations of the second amendment’s “the people” in turn, helps ensure noncitizens’ inclusion under other core constitutional protections.

Just off the top of my head, it seems plausible that as an original matter the Second Amendment protects law abiding citizens and noncitizens while the Second Amendment incorporated by the Fourteenth Amendment protects only citizens (because it's incorporated through the privileges or immunities clause).  But the Supreme Court may have boxed itself out of that result by continuing to say incorporation arises from the due process clause.

UPDATE:  A reader comments:

You said the Privileges or Immunities clause of the 14th Amendment only applies to citizens. I have heard that interpretation before but in reading it I had a different interpretation purely from the text (I fully admit to not knowing much of the legal history). 

 

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." I can see where people interpret it as limited to citizens but then that leaves a big question, which privileges or immunites. There are tons out there, some of which we recognize and others we don't. If the "...of citizens of the United States" phrase is about who the clause applies to, it doesn't also act as a modifier or the "privileges or immunitites."

 

I read it as such a modifier and then it doesn't limit persons it would apply to. It would simply be a ban on states abridgment similar to how the 1st Amendment is simply a ban on Congressional abridgment, and would therefore apply to all persons.

 

Is there any law review or similar literature out there fully analyzing the text and history regarding this possible reading? Or has it been simply assumed that the clause only applies to citizens?

 

A good question and I don't know the answer, though I admit that for me the limitation to citizens is mostly an assumption.  If anyone knows of in depth scholarship on the issue let me know and I'll post it.

Kellen Funk & Sandra Mayson: Bail at the FoundingMichael Ramsey

Kellen Funk (Columbia University - Law School) & Sandra G. Mayson (University of Pennsylvania Carey Law School) have posted Bail at the Founding (91 pages) on SSRN.  Here is the abstract:

How did criminal bail work in the founding era? This question has become pressing as bail, and bail reform, have attracted increasing attention, in part because history is thought to bear on the meaning of bail-related provisions in state and federal constitutions. To date, however, there has been no thorough account of bail at the Founding. This Article begins to correct the deficit in our collective memory by describing bail law and practice in the founding era, from approximately 1790 to 1810. In order to give a full account, we surveyed a wide range of materials, including founding-era statutes, case law, legal treatises, and manuals for justices of the peace; and original court, jail, administrative, and justice-of-the-peace records held in archives and private collections.

The historical inquiry illuminates three key facts. First, the black-letter law of bail in the founding era was highly protective of pretrial liberty. A uniquely American framework for bail guaranteed release, in theory, for nearly all accused persons. Second: Things were different on the ground. The primary records reveal that, for those who lived on the margins of society, bail practice bore little resemblance to the law on the books, and pretrial detention was routine. The third key point cuts across the law and reality of criminal bail: Both in theory and in practice, the bail system was a system of unsecured pledges, not cash deposits. It operated through reputational capital, not financial capital. This fact refutes the claim, frequently advanced by opponents of contemporary bail reform, that cash bail is a timeless American tradition. The contrast between the law-on-the-books and the practice of bail in the founding era, meanwhile, highlights the difficulty of looking to the past for a determinate guide to legal meaning.

Delegating War PowersMichael Ramsey

My new article Delegating War Powers (Southern California Law Review, vol. 96 (forthcoming 2023)) (82 pages) (with Matthew C. Waxman of Columbia Law School) is now on SSRN.  Here is the abstract:

Academic scholarship and political commentary endlessly debate the President’s independent constitutional power to start wars. And yet, every major U.S. war in the last sixty years was fought pursuant to war-initiation power that Congress gave to the President in the form of authorizations for the use of military force. As a practical matter, the central constitutional question of modern war initiation is not the President’s independent war power; it is Congress’s ability to delegate its war power to the President.

It was not until quite late in American history that the practice of war power delegation became well accepted as a domestic law basis for starting wars. This Article examines the development of war power delegations from the Founding era to the present to identify when and how war power delegations became a broadly accepted practice. As this Article shows, the history of war power delegation does not provide strong support for either of two common but opposite positions: that war power, as a branch of foreign affairs powers, is special in ways that make it exceptionally delegable; or that it is special in ways that make it uniquely nondelegable. More broadly, that record counsels against treating “foreign affairs delegations” as a single category, and it reveals that constitutional questions of how Congress exercises war power are as significant as whether it does.

This isn't a typical constitutional law law review article in that we don't argue for a particular modern  interpretation or original meaning of the Constitution.  Instead our goal is to describe what happened with Congress' approach to war initiation/authorization from the founding to the present, without trying to draw a definite interpretive conclusion from it.  To some extent this reflects my wider ambivalence about the current debates over nondelegation.  We hope it's a useful contribution to those debates, though, in the sense that we need first to understand what actually happened before we can say what it means for constitutional meaning.

Andrew Willinger: The Territories under Text, History, and TraditionMichael Ramsey

Andrew Willinger (Duke University School of Law, Center for Firearms Law) has posted The Territories under Text, History, and Tradition (Washington University Law Review, Volume 101 (forthcoming)) (57 pages) on SSRN.  Here is the abstract:

In two of its major decisions in the 2021-2022 Term, New York State Rifle & Pistol Association v. Bruen and Dobbs v. Jackson Women’s Health Organization, the Court continued solidifying its originalist method of constitutional interpretation by looking increasingly to historical regulatory practice to construe how the Constitution protects individual rights. The Court is focused not only on the original public meaning of constitutional provisions, but also on historical practice as a key to understanding how those who lived at the relevant time thought a constitutional provision might be applied and what laws and regulations were considered consistent with that provision. Bruen and Dobbs both considered laws passed by governments in the Western territories prior to statehood in the nineteenth century, but with polar opposite results. One day the Court suggested that territorial laws and practices were exceptional improvisations wholly irrelevant to the search for a national tradition; the very next day, the Court implied that territorial laws and emerging territorial trends can be valuable tools for constitutional interpretation. This Article searches for a more satisfying and consistent theory of how to utilize territorial history in constitutional cases.

Part I critically analyzes the decision in Bruen and the Court’s determination that territorial public-carry bans could not serve as analogues to support New York’s modern gun-licensing law. Part II explains the history of continental territories, examines Dobbs and other Supreme Court decisions invoking territorial laws and practices, and identifies relevant principles from legal scholarship regarding the Court’s reliance on non-federal sources to interpret provisions of the U.S. Constitution. Part III argues that the Supreme Court’s use of territorial history in Bruen was inconsistent with its past practice, that territorial history is especially likely to reflect federal constitutional meaning because the territories were subject to the federal Bill of Rights long before those rights were incorporated against state governments, and that a text, history, and tradition methodology should accord territorial laws and practices a meaningful role.

This seems right to me as a matter of originalist methodology.  I don't see why practice in the territories wouldn't be relevant, assuming it was understood (as I think it was, prior to the Insular Cases) that the Constitution applied to the territories in the same way that it applied elsewhere.

New Book: "Scalia" by James RosenMichael Ramsey

New book, forthcoming next week: Scalia: Rise to Greatness, 1936 to 1986, by James Rosen (Regnery Pub. March 7, 2023).  Here is the book description from Amazon:

The bestselling historian and journalist James Rosen provides the first comprehensive account of the brilliant and combative Supreme Court justice Antonin Scalia, whose philosophy and judicial opinions defined our legal era.

With SCALIA: Rise to Greatness, 1936–1986, the opening installment in a two-volume biography, acclaimed reporter and bestselling historian James Rosen provides the first comprehensive account of the life of Justice Antonin Scalia, whose singular career in government—including three decades on the Supreme Court—shaped American law and society in the twenty-first century.

Decades in the making, Rise to Greatness tells the story of the kid from Queens who became the first Italian American on the Court and one of the most profoundly influential figures of our time. This volume takes us from Scalia’s birth to his ascension to the Court, providing a fresh and probing look at his Catholic upbringing and education; his stints in academia and published works, some of them obscure and long-overlooked; and his service in the Nixon and Ford administrations, when Scalia played a central role in reforming the U.S. intelligence community and in the approval of sensitive covert operations.

Deeply researched and based on unparalleled access to documentary and personal sources, and written with an intellectual rigor and wit befitting its subject, Rosen’s narrative reads like a novel while presenting startling new insight into the life, mind, career, faith, and legacy of the man whom family and friends called “Nino.” The result is a compelling portrait of an American legend with whom the author personally corresponded, broke bread, drank wine, and braved the streets of the capital as a (nervous) passenger in the justice’s famously speedy BMW.

Rosen has unearthed previously unpublished writing from every phase of Scalia’s career, including private Supreme Court emails, and has interviewed Scalia’s family, classmates, students, colleagues from the Nixon, Ford, and Reagan administrations, priests, poker buddies, hunting companions, and fellow judges and justices.

Rise to Greatness is a landmark of modern biography, a rich and moving study, accessible to lay readers, that brings to life a towering figure of American history. It is the book Scalia fans, and all citizens interested in history and the law, have long awaited.

And a reasonable price at $29.99 (at least compared to academic press books).

(Via Ed Whelan at NRO Bench Memos, who says he "very much enjoyed reading" it and promises a review soon).

William Carter: The Second Founding and Self-IncriminationMichael Ramsey

William M. Carter, Jr. (University of Pittsburgh - School of Law) has posted The Second Founding and Self-Incrimination (Northwestern University Law Review, forthcoming 2023) (72 pages) on SSRN.  Here is the abstract:

The privilege against self-incrimination is one of the most fundamental constitutional rights. Protection against coerced or involuntary self-incrimination safeguards individual dignity and autonomy, preserves the nature of our adversarial system of justice, helps to deter abusive police practices, and enhances the likelihood that confessions will be truthful and reliable. Rooted in the common law, the privilege against self-incrimination is guaranteed by the Fifth Amendment’s Self-Incrimination and Due Process Clauses. Although the Supreme Court’s self-incrimination cases have examined the privilege’s historical roots in British and early American common law, the Court’s jurisprudence has overlooked an important source of historical evidence: the long history of coerced and involuntary confessions extracted from enslaved persons by both governmental and private actors.

The Article sheds new light upon this history by examining the privilege against self-incrimination from the perspective of enslaved persons and through the lens of the Nation’s Second Founding following the Civil War. Although not part of the formal polity that ratified the original Constitution and Bill of Rights, enslaved persons’ understandings and experiences informed the Second Founding, which was intended to have a transformative effect upon the Constitution as a whole. This Article is the first to extensively examine first-person slave narratives in order to draw upon enslaved persons’ experiences for insights into self-incrimination doctrine.

This Article first provides an overview of the theories underlying the privilege against self-incrimination, the background of the Self-Incrimination Clause, and the Supreme Court’s self-incrimination jurisprudence. The Article then discusses the Nation’s Second Founding and the ways in which it changed our constitutional regime, both substantively and in principles of constitutional interpretation. The Article next examines enslaved persons’ views and experiences regarding self-incrimination, both through antebellum judicial decisions involving enslaved persons and through enslaved persons’ own first-person narratives. This evidence reveals that the Supreme Court’s cramped and formalistic approach to self-incrimination is inconsistent with the post-Civil War Constitution’s purposes and values. The Article then concludes that our constitutional jurisprudence misses a great deal by failing to include in constitutional analysis evidence from the Second Founding and the experiences of enslaved persons, and calls for courts to take such evidence into account in interpreting the privilege against self-incrimination.

Ilya Somin on Textualism and the Major Questions DoctrineMichael Ramsey

At Volokh Conspiracy, Ilya Somin: A Textualist Defense of the Major Questions Doctrine.  From the introduction:

Over the last few years, the once-relatively obscure "major questions doctrine" (MQD) has become increasingly controversial, as the Supreme Court has relied on it in several major cases, such as  the eviction moratorium decision, the OSHA large-employer vaccine mandate case, and West Virginia v. EPA. If yesterday's oral argument is any indication, the Court may also use it to strike down the Biden Administration's massive loan forgiveness plan.

The doctrine requires Congress to "speak clearly when authorizing an [executive branch] agency to exercise powers of vast 'economic and political significance.'" If such a broad delegation of power isn't clear, courts must rule against the executive's claims that it has the authority in question. Critics often argue that this rule is at odds with textualism in statutory interpretation—a theory to which many conservative judges are committed. For example, in her forceful dissent in West Virginia v. EPA, Justice Elena Kagan complains that MQD has become "a get-out-of-text free card." If the otherwise-best interpretation of a given text is that it grants the executive sweeping powers, why should MQD overturn it?

But, contrary to popular belief, there is in fact a textualist justification for MQD. ...

And from later on:

[C]ontextual considerations can justify the major questions doctrine. In most situations, people expect greater clarity and precision when granting an agent broad power, than when authorizing something narrower. For example, my wife and I recently hired a contractor to repair the old and increasingly dilapidated deck attached to our house. Imagine we signed an agreement giving the contractor the authority to "modernize and improve" the deck, and he then proceeded to tear the whole thing down and replace it with a bigger and more modern structure.

As a semantic matter "divorced from context," the contractor could argue that tearing down and replacing the deck counts as modernization and improvement. Indeed, it might result in greater modernization and improvement than a more limited repair job would have! But most ordinary readers of the agreement would readily understand that the contractor had exceeded his authority. Tearing down and replacing the entire deck is a big, expensive step that requires clearer and more specific authorization than a vague mandate to "modernize and improve." By contrast, if the contractor had taken the much more limited step of replacing a few decaying floor boards, most people would agree his actions were properly authorized, even though the agreement doesn't specifically mention such replacement.

The same point applies to statutory language. If anything, most ordinary readers probably assume that vast grants of legal authority over millions of people require even more clarity and precision than do contractual agreements like the deck replacement. For example, in the loan forgiveness case, the Biden Administration relies on a vague provision of the HEROES Act that allows the executive branch to "waive or modify" regulations governing federal student loans to justify cancellation of over $400 billion in student loan debt. Even if semantics "divorced from context" suggests that mass cancellation qualifies as a type of waiver or modification, contextual ordinary meaning indicates that such an enormous delegation of power requires greater precision.

I think there's something to this argument -- it's a version of the no-elephants-in-mouseholes idea.

More broadly, I've become increasingly convinced that something like the MQD is needed to constrain executive power.  It's puzzling to me that scholars, particularly on the left, who purport to be concerned about excessive executive power are so negative on the MDQ.  The current state of executive overreach arises mostly from the combination of voluminous vague federal legislation and aggressive executive branch lawyering.  It has pushed us very far from the Constitution's design.

Brannon Denning & Glenn Harlan Reynolds: Five Takes on New York Rifle & Pistol Association, Inc. v. BruenMichael Ramsey

Brannon P. Denning (Samford University - Cumberland School of Law) & Glenn Harlan Reynolds (University of Tennessee College of Law) have posted Retconning Heller: Five Takes on New York Rifle & Pistol Association, Inc. v. Bruen (35 pages) on SSRN.  Here is the abstract:

New York Rifle & Pistol Association, Inc. v. Bruen was the first significant Second Amendment case that the Supreme Court had heard in over a decade since its decision in District Columbia v. Heller. It was one of the most highly anticipated case of the 2021-22 Term and serves as the first indication of how the addition of Justices Gorsuch, Kavanaugh, and Barrett might alter the trajectory of the Court’s Second Amendment case law.

If Heller could have been characterized as a “minimalist” opinion at the time of its decision and McDonald v. Chicago as an almost overdetermined extension of Heller by its application to the states through incorporation, Bruen tends towards maximalism, dramatically expanding the scope of the Second Amendment and threatening a variety of gun control laws that lower courts had upheld while the Court stayed its hand. Given that there is now a solid majority (if not a super-majority) willing to support a robust Second Amendment, whatever Bruen’s ultimate scope, it is unlikely that the Court will be as quiescent as it was in the decade following Heller.

This essay offers some preliminary observations about both the opinion itself, as well as its likely effects, some of which are starting to manifest. Our first take concerns the question of opinion assignment. Why did Chief Justice Roberts—whose support for the Second Amendment had been suspect—assign the opinion to Justice Thomas?

Takes two and three concern Justice Thomas’s substitution of text, history, and tradition for tiered-scrutiny; and his call for courts to adopt analogical reasoning should the former fail to provide answers to resolve particular cases. In rejecting tiered-scrutiny, Thomas argued that the lower courts had misread the Heller decision itself; that Heller rejected tiered-scrutiny in favor of a textual, historical, and traditional inquiry. In order to make Bruen seem less like an abrupt departure, we argue, Justice Thomas had to “retcon” Heller—reading back into the latter decision the analytical framework adopted in Bruen. We also question how helpful his explanation of the method for analogizing to other extant gun regulations when history and tradition have run out is likely to be to lower courts who have to rehear cases involving dozens of issues delineating the scope of the Second Amendment settled over the last fifteen years since Heller.

Take Four wonders about the status of what we earlier termed “the Heller safe harbor”—the list of “presumptively lawful” regulations that the Court said were not called into question by the decision. Critics at the time questioned whether these could be squared with the self-conscious originalism of the rest of the opinion. This tension is only heighted by Bruen’s text-history-tradition only approach.

Finally, in keep with our longstanding interest in lower court reception of destabilizing, possibly transformative Supreme Court opinions, we look at the reaction of the lower courts, post-Bruen. While approaches differ, a surprising number of these opinions seem to recognize Bruen for the sea-change it portends and are attempting to implement it in good faith. Although as was true with cases like United States v. Lopez and Heller itself, some courts are also trying to avoid the wider implications of Bruen using any available argument, however specious; and we detect in some an “uncivil obedience” intended to raise the Supreme Court’s costs of holding the line laid down in Bruen. A brief conclusion follows.