Constitutional Interpretation and Change

  • May 6, 2014
    Guest Post
    by Saul Cornell, Paul and Diane Guenther Chair in American History, Fordham University
     
    May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.”  The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald.  How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.
     
    In District of Columbia v. Heller, Justice Scalia engaged in a revisionist exercise, rewriting history to further his ideological agenda. If you have any doubts about this proposition, just consider the following: according to Heller’s logic, it would have been okay for the first Congress to pass a law making muskets illegal in the District of Columbia, but Congress would have been prohibited from banning dueling pistols. Such a conclusion is pretty hard to reconcile with the Amendment’s text and history.
     
    Scalia’s majority opinion is an example of the new originalism. Following the wacky logic of this theory, Scalia argues that the Founding era would not have treated the Amendment’s preamble as the “key to open the mind of the makers” of the text. Instead, Justice Scalia believes that the average competent speaker of eighteenth-century American English would have looked at the text and said, “Yep, we should read this backwards.” (Just try to find a John Marshall decision where he reads a text backwards.) Where does the evidence for this novel technique come from, you may ask? The answer: from legal treatises written in the middle of the 19th century. Either Justice Scalia does not understand that legal thought changed in the tumultuous decades after ratification or he believes in time travel. (I hope it is the latter, since that would be crazy but interesting. The former claim is just intellectually embarrassing.)
     
  • May 6, 2014
    Guest Post
    by Jamal Greene, Professor of Law, Columbia Law School
     
    May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.”  The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald.  How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.
     
    Justice Scalia was correct when he wrote in his opinion for the Court in District of Columbia v. Heller that the Second Amendment protects an individual right to possess a handgun for purposes of lawful self-defense in the home. The Court was also right to say in its 2010 decision in McDonald v. City of Chicago that the right recognized in Heller is as good against regulation by state and local governments as it is against the federal government.
     
    It does not follow, however, that the Court’s decision in Heller was correct, either in method or in result. As to method, the original purpose behind the Second Amendment was not to protect an individual’s right of self-defense, in the home or otherwise. As the Second Amendment’s text makes explicit, the amendment was enacted to ensure that state militias would not be disarmed by the federal government.
     
  • May 5, 2014
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law; Author, Gunfight: The Battle Over the Right to Bear Arms in America

    May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.”  The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald.  How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.

    Heller was right. The Constitution protects the right of individuals to have arms for personal protection. Even if you don’t believe this accurately describes the original meaning of the Second Amendment – the history of which has confounded many – you should support the result if you believe the Constitution protects fundamental, unenumerated rights. There’s a long commitment in American constitutionalism to unwritten rights, including the right to privacy and the right to marry. In identifying which unwritten rights are protected by the Constitution, the courts ask whether the right, as a matter of history and tradition, has been respected by the American people. Under the doctrine of substantive due process, if the right is “objectively, deeply in this Nation’s history and tradition” it will be protected. The right of individuals to have guns for personal protection, especially in the home, easily passes this test.

    The right of individuals to have a gun in the home for self-defense has long been respected by American law. Since the founding, no state has ever prohibited its residents from having a gun in the home. Although Washington, D.C. effectively banned guns in the home for self-defense and Chicago banned handguns (while allowing long guns), these idiosyncratic outliers only highlight the dominant, longstanding legal tradition of allowing individuals to own guns. In numerous due process cases, the Supreme Court has looked to the absence of laws prohibiting the relevant behavior as strong evidence of a deeply rooted right. In Roe v. Wade, the Court explained that abortions in early pregnancy were not barred under the common law. In Lawrence v. Texas, the Court recognized that laws singling out same-sex sodomy for criminal punishment, while allowing opposite-sex couples to engage in the same activity, were contrary to our legal traditions. In Washington v. Glucksberg, the Court denied substantive due process protection for the right to die by pointing to the long history and tradition of laws against suicide. There’s no history and tradition of laws preventing law-abiding people from having guns.

  • May 5, 2014
    Guest Post

    by Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor, The University of Chicago

    May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.”  The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald.  How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.

    In many respects, the United States Constitution has served as a model for constitutions throughout the world. Of the 188 nations that have written constitutions, the vast majority have adopted fundamental guarantees that were first fully articulated in the United States Constitution.

    Indeed, 97 percent of all the world's constitutions now protect the freedom of religion; 97 percent protect the freedom of speech and press; 97 percent protect a right of equality; 97 percent protect the right to private property; 95 percent protect the freedom against unreasonable searches; and 84 percent forbid cruel and unusual punishment. These freedoms, which were first constitutionalized in the United States, are now widely recognized as fundamental to a free, humane and civilized society.

    On the other hand, only 1 percent of all the other nations of the world recognize a constitutional right to keep and bear arms. Of the 188 nations with written constitutions, only Mexico and Guatemala have followed our example. Every other nation has rejected the notion that individuals have a fundamental right to purchase and possess firearms.

    These data are interesting because they shed light on the meaning of the Second Amendment. What did the Framers have in mind? Could they really have enshrined a right that virtually no one else in the world values?

  • April 22, 2014
    Today, the Supreme Court “upheld a Michigan voter initiative that banned racial preferences in admissions to the state’s public universities.” In a dissenting opinion, Justice Sonia Sotomayor stated that “the Constitution does not protect racial minorities from political defeat…but neither does it give the majority free rein to erect selective barriers against racial minorities.” Adam Liptak at The New York Times has the story.
     
    Earlier this morning, the Supreme Court heard oral argument in Susan B. Anthony List v. Driehaus. The case deals with the issue of whether it can be a crime to falsify information about a candidate in a political campaign.  NPR’s Katie Barlow and Nina Totenberg break down this issue of free speech.
     
    Writing for The American Prospect, Virginia Eubanks explains why “Big Data might have disproportionate impacts on the poor, women, or racial and religious minorities.”
     
    David Gans at Balkinization responds to George Will’s column for The Washington Post , defending progressive’s constitutional interpretation which “does not force us to choose between liberty and democracy.”  
     
    At The Brennan Center for Justice, Walter Shapiro “[demystifies] the power of money in politics.”