The Second Amendment

by Michael Waldman

  Reduced to its core, originalism promises that judges can ride a constitutional wayback machine, taking orders from the esteemed Founders. There is more than a whiff of filiopiety, of worship of the ancestors. Stanford’s Pamela Karlan gibes that originalists should wear a bracelet reading, WWJMD? (What Would James Madison Do?) Of course, there was something obviously, even transparently conservative in the insistence that the intent of the white men of 1789 should unthinkingly bind later generations. Among other things, the “new birth of freedom” during and after the Civil War, which produced three constitutional amendments, meant that a different group of “founders” should be consulted. These framers were called Radical Republicans for a reason. Many sought a flexible Constitution to guarantee equality.

  Originalists quickly found themselves in a constitutional Catch-22: what if the Framers did not want their intent to bind so tightly later generations? James Madison, after all, kept his journals secret in large measure to keep his contemporaries from relying on the notes as a canonical text. William Blackstone, whose Commentaries on the Laws of England are much cited by originalists, suggested “the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. . . . As to the effects and consequence, the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them.” In the end, courts rarely actually used original intent, other than to confirm already determined political views. Finley Peter Dunne was a turn-of-the-twentieth-century satirist. His protagonist Mr. Dooley commented on current events in a comic brogue. Historian Leonard Levy notes, “Mr. Dooley, Finley Peter Dunne’s philosophical Irish bartender, believed that original intent was ‘what some dead Englishman thought Thomas Jefferson was goin’ to mean when he wrote th’ Constitution.’ ”

  Quickly but subtly originalists shifted ground. They no longer urged a reliance on “original intent.” Instead, they urged reliance on “original public meaning.” What did the public think the words meant at the time the Framers set them to parchment? At one level, this made more sense: it was, after all, the citizens who made the Constitution law when they ratified it. But it risked even greater incoherence. Jack Rakove showed in Original Meanings that citizens in one state might mean one thing, Congress another; the drafters of the Bill of Rights, especially, meant something different from the desires of the public they sought to mollify. What started as a patriotic call to the wisdom of the Framers became an invitation to squint at the words of the text. This was a constitutional bait-and-switch. Instead of a robust, textured look at the historical origins and philosophical underpinnings of the Constitution, advocates now insisted that the right way—the only way—to be true to original intent was to probe the precise meanings of the words as written down. This kind of hairsplitting—of canonical disputes, endless puzzlement about words and their meaning, and the meaning of asking about their meaning—would be familiar to any denizen of a faculty lounge. Depending on one’s tradition, it could be derided as Jesuitical, Talmudic, or literary criticism.

  Fidelity to constitutional text had always been one of the ways we interpret the document. What was new was the argument, made increasingly by many on the right, that it was the only legitimate way to understand the Constitution. Unlike other dry theories of jurisprudence, this one had an undeniable power. We revere our founding documents, we stand on line to view them at the National Archives; we treat them (in Pauline Maier’s words) as American Scripture. The call for a return to original understandings tapped a deep yearning among many to return to earlier values, an earlier sense of order and greatness. Originalism became yet another mobilizing principle for millions of conservatives.

  The conservative legal movement pressed on to its next great task: filling the courts. Here is where its results have been especially impressive. Reagan and Meese deserve credit for understanding the need to populate the bench with like-minded jurists (a lesson that earlier and later administrations oddly forgot).

  Meese’s speech had been prepared with help from researchers and speechwriters drawn from the Federalist Society. Three conservative law students, fired by Reagan’s vision and feeling isolated in elite schools, started the group in 1982. Its first gathering at Yale drew two hundred and was covered in The New York Times. The Federalist Society did not bring lawsuits or lobby for new policies. It was, first and foremost, a network—a nationwide cadre of similarly inclined lawyers who could boost one another and fill top jobs. Intentional or not, this proved savvy. Its first executive director explained the attitude of typical grant-making foundations: “What have you done? Well, we’ve helped change some of the debate on the Constitution. But what have you done?” Instead, the society received financial support from funders including the Olin, Bradley, and Scaife foundations, already busy building other institutions in the conservative policy infrastructure such as the Heritage Foundation. These philosophically committed backers did not demand instant governmental gratification. Theirs was patient capital. The society’s first faculty advisor: University of Chicago professor Antonin Scalia.

  That proved consequential. Four years after the Federalist Society held its first campus conference, and two years after Meese’s broadside, one of the original student conveners was on the attorney general’s staff sifting names for possible appointment to the U.S. Supreme Court. President Reagan stepped before the microphone in 1986 and announced his nomination of that faculty advisor to the Supreme Court.

  “AMERICAN ORIGINAL”

  Few jurists have had an impact as significant as Antonin Scalia. He has done so while winning few allies among the other justices, and authoring surprisingly few major opinions. He holds sway by relentless force of intellect. Scalia may not write the opinions, but the lawyers who appear before the justices increasingly argue in his voice.

  Antonin Scalia was born in Trenton, New Jersey, in 1936. His father, an Italian immigrant with exacting standards, taught classics at Brooklyn College. Scalia commuted to Xavier High School, a rigorous Jesuit academy, from the outer borough of Queens. All Xavier students wore uniforms and served in Junior ROTC. A skilled shooter, Scalia toted his rifle on the subway to Manhattan from Queens. (Unlike Justice Brennan, Scalia never served in the military, however.) Scalia worked as head of the Justice Department’s Office of Legal Counsel in the Ford administration, fighting Congress as it exerted new oversight power over intelligence gathering and war making. After Ford lost, Scalia became editor of Regulation magazine for the conservative American Enterprise Institute, then moved on to the University of Chicago. He became a high-profile advocate for the view that judges were meddling where they ought not, imposing their political views on society. Early in Reagan’s term he was appointed to the U.S. Court of Appeals District of Columbia Circuit. Because it hears many cases testing the federal government’s power, the D.C. Circuit is known as the second highest court in America. Four years later, when an associate justice slot opened on the Supreme Court, Scalia’s youth, nine children, proud Italian American heritage (and operatic persona), lifted him past Robert Bork. Scalia’s confirmation hearing came after a bruising battle over William Rehnquist’s elevation to chief justice. The Senate confirmed Scalia, 98 to 0.

  Scalia is rare among American public figures. Most are pragmatists, incrementalists. Mario Cuomo (another Queens-raised, Jesuit-trained lawyer of Scalia’s generation), memorably said, “You campaign in poetry. You govern in prose.” Scalia stands out for bringing to high office a thorough, carefully crafted, controversial public philosophy, and sticking with it. Scalia’s evangelizing for the idea that the only legitimate way to interpret the Constitution is to ask what the Framers and their generation intended in 1789 has become a dominant philosophy for debating and litigati
ng constitutional law.

  Scalia insisted he was a “faint hearted originalist.” In a cogent article published two years into his Supreme Court tenure, he called originalism “the lesser evil.” He acknowledged the inherent flaws in the approach: for example, the risk of getting history wrong. But he insisted that judges and lawyers must be guided by a consistent jurisprudential approach. “If the law is to make any attempt at consistency and predictability, surely there must be general agreement not only that judges reject one exegetical approach (originalism), but that they adopt another. And it is hard to discern any emerging consensus among the nonoriginalists as to what this might be. Are the ‘fundamental values’ that replace original meaning to be derived from the philosophy of Plato, or of Locke, or Mill, or Rawls, or perhaps from the latest Gallup poll?”

  His philosophy appears motivated more by animus to the politically liberal interpretations he saw driving notions of the evolving Constitution. “If it is good, it is so,” he wrote. “Never mind the text that we are supposedly construing; we will smuggle these new rights in, if all else fails, under the Due Process Clause.” He derides, for example, the way courts have interpreted the Eighth Amendment’s prohibition of “cruel and unusual punishment.” No sane judge, he acknowledges, would uphold lashing or hand branding as a punishment today, even though they were common in 1789. But the way judges actually have assessed how to interpret that amendment, “the evolving standards of decency that mark the progress of a maturing society,” is little more than judge-made “common law.”

  In fact, though, throughout most of his years on the bench, Scalia shrank from writing solely based on the original intent of the Framers (or even the original public meaning). Like other justices, he picked and chose when to focus on the text, when to plumb the thinking of the Founders, when to rely on precedent. He had a ready justification, charmingly set out in a 1997 book: “As I have explained, stare decisis [i.e., following precedent] is not part of my originalist philosophy; it is a pragmatic exception to it.” Often he added, “I am an originalist. I am not a nut.” (Chicago professor David Strauss countered, “That way of putting it is disarming, but it seems fair to respond: if following a theory consistently would make you a nut, isn’t that a problem with the theory?”)

  Even in these writings, Scalia never quite got around to explaining why the original intent of the Framers was the guidepost to follow. More, the original intent as outlined by Meese and Bork at least had the benefit of allowing for thought, context, philosophical consistency to carry forward in time. Scalia’s approach—which he called “textualism”—came to focus much more intently on the words on the page. Such an approach may make sense for those parts of the Constitution that are unambiguous. Article II says the president must be thirty-five. Nobody can argue “twenty-five is the new thirty-five.” For more open-ended clauses, though, the vagueness of the text is precisely the challenge. “Due process” and “equal protection” do not become clearer the more you stare at them.

  But for all Scalia’s intellectual wattage, for all the influence of “original public meaning” in law schools and in lower courts, his influence on his colleagues was oddly muted, surprisingly limited. Scalia proved inflexible and abrasive in his dealings with other justices. William Brennan, asked by his clerks how the Court could have come up with one or another surprising result, would hold up his hand: five fingers. Sandra Day O’Connor had been majority leader of the Arizona State Senate. Scalia seemed to prefer to stand alone. Over time, his dissents grew vehement, even cranky. When O’Connor refused to cast the deciding vote to undermine Roe v. Wade in 1989, Scalia taunted: her opinion was “irrational” and “cannot be taken seriously.” Veteran legal journalist Linda Greenhouse, cataloguing his episodic thrashing of colleagues, reports that she cannot think of a single time another justice was persuaded over time to join with Scalia’s views. Biographer Joan Biskupic wrote that Chief Justice Rehnquist “realized soon enough that if a contentious case had been won by a single vote, he should not assign the opinion to Scalia, lest the obstinate justice lose the majority.”

  Then in 2005, O’Connor retired, and Rehnquist died, and Scalia was joined on the bench by two jurists who rose in the conservative movement Scalia helped create: Associate Justice Samuel Alito and the new chief justice, John Roberts. Suddenly those five fingers were on the right hand. The Roberts Court would prove willing to embrace constitutional views that broke sharply, even radically, from the consensus of the past century.

  SEVEN

  The Road to Heller

  A militant National Rifle Association combined with a forest’s worth of law review articles built inexorable momentum to press the court to change its views of the Second Amendment.

  Key government agencies began to shift first. Republicans took control of the U.S. Senate for the first time in twenty-four years in 1981. Utah senator Orrin Hatch became chair of a key Judiciary Committee panel. He commissioned a study, “The Right to Keep and Bear Arms.” In a breathless tone it announced, “What the Subcommittee on the Constitution uncovered was clear—and long lost—proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.” The cryptologist discovering invisible writing on the back of the Declaration of Independence in the Disney movie National Treasure could not have said it better.

  A constitutional right to gun ownership, though, was still too far a reach, even for the doctrinal conservatives in Ronald Reagan’s Justice Department. In part, “the individual rights claim on the Second Amendment was a New Right right,” notes Yale’s Reva Siegel, “at odds with judicial precedent and in tension with New Right complaints about judicial activism.” It would undo the work not of judges, but democratically elected legislators. In addition, libertarian law professors and insurrectionist movie actors were only part of the conservative coalition. The Justice Department spoke for law enforcement, as well, and the national agencies (such as the FBI and Bureau of Alcohol, Tobacco and Firearms) and local police were united in their desire to crack down on gun violence. Attorney General Meese, fresh from the controversy and impact of his original intent speeches, commissioned a comprehensive strategy to map a drive for jurisprudential change in fifteen areas ranging from the “exclusionary rule” under the Fourth Amendment to public initiatives to strengthen private religious education. The Constitution in the Year 2000 was an audacious plan to rewrite constitutional doctrine. It did not include a strategy for the Second Amendment.

  But the NRA’s power to elect presidents (and the judges they appoint) began to shift the organs of government, too. In 2000 (“especially for you, Mr. Gore”), gun activists strongly backed Governor George W. Bush of Texas. During the election, a new dispute over the meaning of the Second Amendment began to move through the courts. Timothy Emerson, a Texas doctor, was under a restraining order after allegedly threatening to kill his wife’s lover. Federal law barred him from owning guns. He was indicted for owning a Beretta pistol. He insisted his Second Amendment right had been violated. In a letter about the case, a Justice Department official confirmed its long-held view that “the Second Amendment does not extend an individual right to keep and bear arms.” NRA activists circulated it widely in West Virginia, Tennessee, and Arkansas, states previously won by Democrats but lost by the Democratic vice president.

  In 2001, newly installed Attorney General John Ashcroft announced a major policy pivot. The NRA’s head lobbyist read Ashcroft’s letter to the group at its convention in Kansas City: “The text and original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms.” The next year, the Justice Department formally reversed its position of seven decades. A federal appeals court ruled against the Texas doctor, but made the noteworthy assertion that the Constitution confers a right to own a gun. Solicitor General Ted Olson, who had argued the Bush v. Gore case that secured t
he presidency, urged the Supreme Court to reject the doctor’s appeal. At the same time, the Justice Department argued that the Constitution “broadly protects the rights of individuals” to own firearms.

  The individual rights argument was starting to win in another forum: public opinion. Citizens were sharply divided on gun laws. By early 2008, according to the Gallup poll, 73 percent of Americans believed the Second Amendment “guaranteed the rights of Americans to own guns” outside the militia. In 1959, according to a Gallup poll, 60 percent of Americans favored banning handguns; that dropped to 41 percent by 1975 and stood at 24 percent in 2012. The idea of a Second Amendment right began to become synonymous with opposition to gun control, with conservatism, even with support for the Republican Party. In 1993, for example, The New York Times mentioned gun control 388 times, and the Second Amendment only sixteen. By 2002, overall mentions of the issue dropped, but the Second Amendment was mentioned fifty times.

  In the end, it was neither the NRA nor the Bush administration that pressed the Supreme Court to reverse course. A small group of libertarian lawyers believed other gun advocates too timid. They targeted a gun law passed by the local government in Washington, D.C., in 1976, perhaps the nation’s strictest. It barred individuals from keeping a loaded handgun at home without a trigger lock. Robert Levy was a technology entrepreneur who graduated law school at age fifty-three, then served as a clerk for two federal judges. A constitutional fellow at the idiosyncratic Cato Institute, Levy found appealing plaintiffs and bankrolled the litigation. By the time the case reached the high court, Levy and two colleagues represented Dick Heller, a security guard at the Thurgood Marshall Federal Judiciary Building who wanted to bring his work revolver home to his high-crime neighborhood. The NRA tried to sideswipe the effort, filing what Heller’s lawyers called “sham litigation” to cloud the case. Worried about an adverse court ruling, it even tried to persuade Congress to nullify the District’s law, which would have rendered the case moot. The D.C. Circuit Court of Appeals—the court where Justices Roberts, Scalia, and Ginsburg once served—struck down the gun law, 2 to 1.