NRA website still included the quote: NRA-Institute for Legislative Action, “Thomas Jefferson on the Right to Bear Arms,” www.nraila.org/legal/articles/2003/thomas-jefferson-on-the-right-to-bear-a.aspx.
T-shirt emblazoned: Zazzle.com, www.zazzle.com/thomas_jefferson_one_loves_to_possess_arms_though_tshirt-235716198687802382.
“Time after time”: Wills, “To Keep and Bear Arms.”
Charlton Heston called the thesis “ludicrous”: Charlton Heston, “Arming America,” Letter to the Editor, New York Times, October 1, 2000, www.nytimes.com/2000/10/01/books/l-arming-america-266906.html.
notes had been lost in a flood: James Lindgren, “Fall from Grace: Arming America and the Bellesiles Scandal,” Yale Law Journal 111 (2002): 2195. Lindgren was a researcher who did much to expose flaws in Bellesiles’s work. A summary of the controversy is: Robert F. Worth, “Historian’s Prizewinning Book on Guns Is Embroiled in a Scandal,” New York Times, December 8, 2001, www.nytimes.com/2001/12/08/books/08GUNS.html?scp=3&sq=bellesiles&st=cse; Robert F. Worth, “Prize for Book is Taken Back from Historian,” New York Times, December 14, 2002, www.nytimes.com/2002/12/14/business/media/14BOOK.html. See also Stanley N. Katz, Hannah H. Gray and Laurel Thatcher Ulrich, “Report of the Investigative Committee in the Matter of Michael Bellesiles,” Emory University, July 10, 2002, www.emory.edu/news/Releases//Final_Report.
Bellesiles turned up in Connecticut: Jen Matteis, “Michael Bellesiles: Bartender, Writer, History Buff,” Valley Courier, September 7, 2012, www.theday.com/article/20120917/NWS10/309209649/-1/zip06details&town=Valley-courier&template=zip06art.
CHAPTER SIX: CONTEST FOR THE CONSTITUTION
tradition of judicial review: Popular acceptance of judicial review, though, has waxed and waned throughout American history. See generally Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004), especially 207–26.
Marbury v. Madison: The history and import of the case are described in Cliff Sloan and David McKean, The Great Decision: Jefferson, Adams, Marshall and the Battle for the Supreme Court (New York: PublicAffairs, 2009).
the Lochner Era: Lochner v. New York, 198 U.S. 405 (1905).
“Brandeis brief”: Melvin Urofsky, Louis D. Brandeis: A Life (New York: Random House, 2009), 216.
“we must ever be on our guard”: New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
“If my fellow citizens”: Oliver Wendell Holmes to Harold J. Laski, March 4, 1920, in Mark de Wolfe Howe, ed., Holmes-Laski Letters, vol. 1, abridged by Alger Hiss (New York: Atheneum, 1963), 194.
Conservative judges’ impulse to intervene: The definitive recent history of the Supreme Court’s fight with the New Deal is Jeff Shesol, Supreme Power: Franklin Roosevelt vs. the Supreme Court (New York: W. W. Norton, 2010).
“With the decisive triumph”: Bruce A. Ackerman, “Beyond Carolene Products,” Harvard Law Review 98 (1984–85): 714.
Justice Harlan Fiske Stone made clear: United States v. Carolene Products Co., 304 U.S. 144, fn. 4 (1938).
It set the Court off: Robert M. Cover, “The Origins of Judicial Activism in the Protections of Minorities,” Yale Law Journal 91, no. 7 (1981–82): 1287; David A. Strauss, “Is Carolene Products Obsolete,” University of Illinois Law Review 2010, no. 4 (2010): 1251. “The Carolene Products footnote,” Strauss wrote, “was the Court’s first—and maybe only—attempt to say, systematically, when the courts should declare laws unconstitutional.”
the era of the Warren Court: Gideon v. Wainwright, 372 U.S. 335 (1963); New York Times v. Sullivan, 376 U.S. 254 (1964); Reynolds v. Sims, 377 U.S. 533 (1964); Griswold v. Connecticut, 381 U.S. 479 (1965); Miranda v. Arizona, 384 U.S. 436 (1966). The key abortion decision came after Earl Warren retired and was replaced by the more conservative Warren Burger: Roe v. Wade, 410 U.S. 113 (1973).
constitutional common law: See David A. Strauss, The Living Constitution (New York: Oxford University Press, 2010).
“[When] we are dealing with words”: Missouri v. Holland, 252 U. S. 416, 433–34 (1920).
Roe was mistakenly decided: Ruth Bader Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” North Carolina Law Review 63 (1984–85): 375.
Barack Obama, as a young law lecturer: The interview is available at www.youtube.com/watch?v=OkpdNtTgQNM. A partial transcript is available at Michael Dobbs, “Obama’s Redistribution ‘Bombshell,’ ” washingtonpost.com, October 27, 2008. In the heat of the presidential race, Senator John McCain’s campaign had charged the interview proved then Senator Obama wanted to use the courts to redistribute wealth. The transcript showed Obama was actually making the opposite point.
He wrote a strategy memo for the U.S. Chamber of Commerce: Memorandum from Lewis F. Powell Jr. to Eugene B. Snydor Jr., “Attack on American Free Enterprise System,” August 23, 1971. Available at Lewis B. Powell Archives, Washington and Lee University School of Law, http://law.wlu.edu/deptimages/Powell%20Archives/PowellMemorandumTypescript.pdf.
numerous arguments: For an explication of ways conservatives could have argued constitutionally other than originalism, see Cass R. Sunstein, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America (New York: Basic Books, 2005), 53–80. Also see “Debate on Radicals in Robes,” in Steven G. Calabresi, ed., Originalism: A Quarter-Century of Debate (Washington, D.C.: Regnery, 2007), 287–96.
One can read a constitutional provision: See Laurence Tribe, American Constitutional Law, 3rd ed. (NY: Foundation Press, 2000).
the conservative voice in the “troika”: See Lou Cannon, President Reagan: The Role of a Lifetime (New York: Simon & Schuster, 1991), 130–31.
delayed his confirmation: Ronald J. Ostrow, “Senate Confirms Meese, 63 to 31: New Attorney General ‘Not Bitter at All’ at Delay and ‘Very Grateful,’ ” Los Angeles Times, February 24, 1985.
address to the American Bar Association: Attorney General Edwin Meese, III, “Speech Before the American Bar Association,” Washington, D.C., July 19, 1985, in Calabresi, ed., Originalism, 52–53. Meese’s speech (and the debate it caused) has had a lasting impact. See Lynette Clemetson, “Meese’s Influence Looms in Today’s Judicial Wars,” New York Times, August 17, 2005, www.nytimes.com/2005/08/17/politics/17meese.html?pagewanted=all.
Brennan had accepted an invitation: Seth Stern and Stephen Wermiel, Justice Brennan: Liberal Champion (Boston: Houghton Mifflin Harcourt, 2010), 504–5.
“arrogance cloaked as humility”: Justice William J. Brennan Jr., “The Constitution of the United States: Contemporary Ratification,” Speech to the Text and Teaching Symposium, Georgetown University, Washington, D.C., October 12, 1985, reprinted in South Texas Law Review 27 (1985): 433.
“original understanding”: Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York: Simon & Schuster, 1990), 143.
WWJMD?: Josh Gerstein, “SCOTUS Candidate Karlan Wants ‘Bold’ Choice from Obama,” Politico, May 1, 2009. Karlan’s pithy gibe summarized her book critiquing originalism. See Goodwin Liu, Pamela S. Karlan, and Christopher H. Schroeder, Keeping Faith with the Constitution (Washington, D.C.: American Constitution Society for Law and Policy, 2009).
unthinkingly bind later generations: Critics deemed this the “dead hand” problem: why should the decisions of the dead bind the living? For a discussion of the rationales proffered, see Reva Siegel, “Heller and Originalism’s Dead Hand—In Theory and Practice,” UCLA Law Review 56 (2009): 1399.
James Madison, after all, kept his journals secret: Leonard W. Levy, Original Intent and the Framers’ Constitution (New York: Macmillan, 1988), 1.
“the fairest and most rational method”: William Blackstone, “Of the Nature of Laws in General,” Commentaries on the Laws of England: A Facsimile of the First Edition of 1765–1769, Introduction, part two, page 59.
“Mr. Dooley”: Levy, Original Intent, 322.
We revere our founding documents:
Pauline Maier, American Scripture: Making the Declaration of Independence (New York: Alfred A. Knopf, 1997).
Originalism became yet another mobilizing principle: The power of originalism as an instrument of political mobilization is traced in Robert Post and Reva Siegel, “Originalism as a Political Practice: The Right’s Living Constitution,” Fordham Law Review 75 (2006–2007): 553. “Originalism is so powerfully appealing because conservatives have succeeded in fusing contemporary political concerns with authoritative constitutional narrative. This fusion of political concern and constitutional narrative is driven by a politics of restoration, which encourages citizens to preserve traditional forms of life they fear are threatened—threatened by modern mores and by a Court that has (mis)construed the Constitution to require social change.”
Its first gathering at Yale: Associated Press, “Federal Judge Assails Supreme Court Rulings,” New York Times, April 27, 1982.
The Federalist Society did not bring: An excellent history is Steven M. Teles, The Rise of the Conservative Legal Movement (Princeton: Princeton University Press, 2008).
Antonin Scalia: Joan Biskupic, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia (New York: Farrar, Straus & Giroux, 2009), 21.
second highest court in America: Thus it was all the more astonishing that President Barack Obama failed to successfully nominate a single judge for the D.C. Circuit in the first four and a half years of his presidency.
“faint hearted originalist”: Antonin Scalia, “Originalism: The Lesser Evil,” University of Cincinnati Law Review 56 (1989): 855.
“If the law is to make”: Scalia, A Matter of Interpretation, 40.
“If it is good, it is so”: Ibid., 39.
“the evolving standards of decency”: Ibid., 40.
“As I have explained”: Ibid., 140.
Asked to explain his pragmatism: Dan Slater, “Justice Scalia Justifies His Jurisprudence: I Am Not a Nut,” Wall Street Journal, April 8, 2008, http://blogs.wsj.com/law/2008/04/08/scalia-justifies-his-jurisprudence-i-am-not-a-nut/.
“That way of putting it”: Strauss, The Living Constitution, 17.
When O’Connor refused to cast the deciding vote: Webster v. Reproductive Health Services, 492 U.S. 490, 532 (1989) (Scalia, J., dissenting in part, concurring in part).
his episodic thrashing of colleagues: Linda Greenhouse, “Justice Scalia Objects,” “Opinionator” (blog), New York Times, March 9, 2011, http://opinionator.blogs.nytimes.com/2011/03/09/justice-scalia-objects/.
“realized soon enough”: Biskupic, American Original, 131.
CHAPTER SEVEN: THE ROAD TO HELLER
“The Right to Keep and Bear Arms”: United States Senate, Committee on the Judiciary, Subcommittee on the Constitution, The Right to Keep and Bear Arms, 97th Congress, February 1982, http://constitution.org/mil/rkba82.pdf.
“the individual rights claim”: Siegel, “Dead or Alive,” 224.
commissioned a comprehensive strategy: Office of Legal Policy, United States Department of Justice, The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation, October 11, 1988 (Washington, D.C.: Government Printing Office), www.scribd.com/doc/7888685/The-Constitution-in-the-year-2000-choices-ahead-in-constitutional-interpretation.
Timothy Emerson: The Emerson divorce saga is described by a supporter of his, Eugene Volokh, “Guns and the Constitution,” Wall Street Journal (1999): A23, www2.law.ucla.edu/volokh/gunconst.htm.
He insisted his Second Amendment right had been violated: United States v. Timothy Joe Emerson, 46 F. Supp. 2d 598 (1999).
Justice Department official confirmed: Solicitor General Seth Waxman, August 22, 2000, www.nraila.org/Waxman.pdf.
Ashcroft announced a major policy pivot: Letter from Attorney General John Ashcroft to James Jay Baker, Executive Director, National Rifle Association, Institute for Legislative Action, May 17, 2001, www.nraila.org/images/Ashcroft.pdf.
“broadly protects the rights of individuals”: Timothy Joe Emerson, Petition for Certiorari, Brief for the United States in Opposition, May 2002, p. 20, n. 3, www.justice.gov/osg/briefs/2001/0responses/2001-8780.resp.pdf. The significance of the brief is explained by Linda Greenhouse, “Justice Department Reverses Policy on Meaning of Second Amendment,” New York Times, May 7, 2002.
73 percent of Americans: Jeffrey M. Jones, “Public Believes Americans Have Right to Own Guns: Nearly Three in Four Say Second Amendment Guarantees This Right,” Gallup Organization, March 27, 2008, www.gallup.com/poll/105721/public-believes-americans-right-own-guns.aspx.
In 1959: Jeffrey M. Jones, “Americans in Agreement with Supreme Court on Gun Rights,” Gallup Poll, June 26, 2008, conducted February 8–10, 2008, www.gallup.com/poll/108394/americans-agreement-supreme-court-gun-rights.aspx.
Second Amendment right began to become synonymous with opposition to gun control: According to a Lexis-Nexis search conducted for this book:
Mentioned in News Articles: New York Times
YEAR
GUN CONTROL
SECOND AMENDMENT
1986
25
6
1993
388
16
1999
680
54
2002
307
50
2008
160
59
Mentioned in News Articles: Washington Post
YEAR
GUN CONTROL
SECOND AMENDMENT
1986
109
4
1993
440
24
1999
674
50
2002
468
61
2008
304
154
July 31, 2013, Lexis-Nexis.
gun law passed by the local government in Washington, D.C.: The law required residents to keep lawfully owned firearms “unloaded and disassembled or bound by trigger lock or similar device.” D.C. Code, sec. 7-2507.02 (2001).
Robert Levy was a technology entrepreneur: Paul Duggan, “Lawyer Who Wiped Out D.C. Ban Says It’s About Liberties, Not Guns,” Washington Post, March 18, 2007.
The NRA tried to sideswipe the effort: Tony Mauro, “Both Sides Fear Firing Blanks if D.C. Gun Case Reaches High Court,” Legal Times, July 30, 2007, www.law.com/jsp/article.jsp?id=1185527215310&slreturn=20130613111444.
tried to persuade Congress: The District of Columbia also was hobbled by odd squabbles among its lawyers. Just weeks before the argument, city officials pushed aside Alan Morrison, the highly capable lawyer preparing to present its case, and brought in former acting solicitor general Walter Dellinger. A top constitutional lawyer, Dellinger had little time to prepare his argument. The story of the case, and the fratricide on both sides, is skillfully told in Marcia Coyle, The Roberts Court: The Struggle for the Constitution (New York: Simon & Schuster, 2013), 123–96. See also Winkler, Gun Fight. A summary of the litigation is in Brian Doherty, Gun Control on Trial: Inside the Supreme Court Battle over the Second Amendment (Washington, D.C.: Cato Institute, 2009), a partisan but useful account published by the group now chaired by one of Dick Heller’s lawyers.
Solicitor General Paul Clement equivocated: United States v. Dick Anthony Heller, Brief of United States as Amicus Curiae, 07-290, www.scotusblog.com/wp-content/uploads/2008/01/us-heller-brief-1-11-08.pdf.
Conservatives pounced: Robert Barnes, “Administration Rankles Some with Stance in Handgun Case,” Washington Post, January 20, 2008, www.washingtonpost.com/wp-dyn/content/article/2008/01/19/AR2008011902231.html; Robert Novak, “Gun Battle at the White House?,” Washington Post, March 13, 2008, www.washingtonpost.com/wp-dyn/content/article/2008/03/12/AR2008031203396.html?hpid%3Dopinionsbox1&sub=AR. The intramural controversy was ably covered in Dahlia Lithwick, “Paul Clement Becomes the Target in the Legal Showdown over Guns,” Slate, March 18, 2008, www.slate.com/articles/news_and_politics
/jurisprudence/2008/03/moving_targets.html.
Vice President Dick Cheney filed his own far more adamant brief: www.gurapossessky.com/news/parker/documents/07-290bsacMembersUSSenate.pdf. The Cheney-congressional brief was authored by Stephen Halbrook, who quotes his own scholarship four times as authority.
At the argument before the justices: Quotes are from transcript of argument, District of Columbia v. Heller, United States Supreme Court, March 18, 2008. 2008 U.S. Trans. LEXIS 22.
Supreme Court issued its ruling: District of Columbia v. Heller, 554 U.S. 570 (2008).
It remains Scalia’s most important majority opinion: Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (New York: Anchor; rev. ed., 2008), 409.
“is naturally divided”: Heller, 554 U.S. at 577.
a surprising way to deal with that prefatory clause: Heller, 554 U.S. at 578.
“We start therefore”: Heller, 554 U.S. at 581.
“At the time of the founding”: Heller, 554 U.S. at 584.
“The phrase ‘bear arms’ ”: Heller, 554 U.S. at 586. Internal citation omitted.
“Giving ‘bear Arms’ ”: Ibid.
“It would be rather like saying”: Heller, 554 U.S at 587.
“Putting all of these textual elements together”: Heller, 554 U.S. at 592.
“There seems to be no doubt”: Heller, 554 U.S. at 595 (internal citation omitted).
precisely one page: Heller, 554 U.S. at 596. It cites a thoughtful essay by UCLA’s, Eugene Volokh, “Necessary to the Security of a Free State,” Notre Dame Law Review 83, no. 1 (2007). Volokh quotes Montesquieu, David Hume, and other Enlightenment thinkers who use “state” or “free state” to mean government. But the Framers of the Constitution referred to themselves as the United States: they jealously were guarding the sovereignty of those very governments.
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