Academic

Cook, Ludwig, and Samaha on Gun Control After Heller

By Lawrence Solum

Philip J. Cook, Jens Ludwig and Adam Samaha (Duke University - Terry Sanford Institute of Public Policy , Georgetown University - Public Policy Institute (GPPI) and University of Chicago - Law School) have posted Gun Control after Heller: Threats and Sideshows from a Social Welfare Perspective on SSRN. Here is the abstract:

What will happen after Heller? We know that the Supreme Court will no longer tolerate comprehensive federal prohibitions on home handgun possession by some class of trustworthy homeowners for the purpose of, and perhaps only at the time of, self-defense. But the judiciary could push further, if nothing else by incorporating Heller's holding into the Fourteenth Amendment and enforcing it against states and municipalities. In fact, the majority opinion offered little guidance for future cases. It presented neither a purely originalist method of constitutional interpretation nor a constraining doctrinal framework for evaluating other regulation - even while it gratuitously suggested that much existing gun control is acceptable. In the absence of more information from the Court, we identify plausible legal arguments for the next few rounds of litigation and assess the stakes for social welfare.

We conclude that some of the most salient legal arguments after Heller have little or no likely consequence for social welfare based on available data. For example, the looming fight over local handgun bans - an issue on which we present original empirical data - seems largely inconsequential. The same can be said for a right to carry a firearm in public with a permit. On the other hand, less prominent legal arguments could be quite threatening. Taxation and regulation targeted especially at firearms might be presumptively disfavored by judges in the future, along the lines of free speech doctrine. This could have serious consequences. In addition, Second Amendment doctrine might generally dampen enthusiasm for innovative regulatory responses to the problem of gun violence. The threat of litigation may inhibit policy experimentation ranging from micro-stamping on shell casings, to pre-market review of gun design, to so-called personalized firearms, and beyond.

And from the text:

Most notably, the majority?s list of presumptively valid firearms regulation was not supported with serious originalist investigation. In fact, the list was not supported with much of any argument. It is quickly becoming one of the most important features in the majority opinion, yet its foundation is far easier to locate in contemporary political consensus or perhaps the necessity of pragmatic compromise in building a five-vote coalition on the bench than it is to support with eighteenth-century regulatory examples. Equally important, the majority relied on sources far removed from 1791. Heller?s rendition of nineteenth-century characterizations of the Second Amendment stretched to include sources postdating ratification by nearly 100 years.144 These citations help us understand postenactment traditions much better than they can reveal any settled meaning at the founding. Using tradition to inform constitutional doctrine is also consistent with the majority?s reference to ?longstanding? gun control in its preferred list,145 with its claim that the District?s ban was more burdensome than others in history,146 and with its reliance on an extended practice of prohibiting unusual weapons.147 While such analysis does involve history and analogy, it is a departure from strong and pure originalism.

The reference to a "list of presumptively valid firearms regulations" is prompted by passages from Heller such as the following:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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 sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (District of Columbia v. Heller, 128 S. Ct. 2783, 2816?17 (2008))

The point made by Cook, Ludwig, and Samaha--that this passage does not rely on originalist analysis--has been made before (prominently by Brian Leiter).  But it is hardly clear that "original public meaning originalism" can or should resolve issues like this on the basis of the original linguistic meaning of the text.  Indeed, this is a case where the interpretation-construction distinction (the subject of yesterday's Legal Theory Lexicon entry) is essential.  Interpretation discerns the linguistic meaning of the constitutional text.  Construction creates supplementary rules of constitutional doctrine--characteristically when the text is vague (admits of borderline cases).

The core insight of originalists is the idea expressed by the fixation thesis: the linguistic meaning (or semantic content) of a given clause is fixed at its "origin," i.e., when the provision was framed and ratified.  Originalists differ about what it is that fixes meaning: early originalists looked to framers' intent, but so-called "New Originalists" or "original public meaning originalists" look to the public meaning of text--as determined by linguistic practice.  In Heller, the majority reasoned that a handgun ban was within the core of Second Amendment's prohibition on infringements of the right to keep and bear arms.  The dicta quoted above is entirely consistent with originalism if the topic which it addresses--the validity of various regulations outside the core--is a matter of construction (and not interpretation).  Lot's more would have to be said to show that this is so--but one key point is that the relevant eighteenth-century conception of a "right" was not an absolute prohibition--reasonable regulations would simply not have been viewed as infringements.  Whether a given regulation that does not invade the "core" of the right is reasonable is the kind of question that can only be answered by constitutional construction.  Or to put the same point a different way: the linguistic meaning of the Second Amendment cannot tell us whether the kinds of regulations in the Heller dicta are "reasonable regulations" on the one hand, or "infringements of the right" on the other.  That kind of question is squarely in the construction zone--where original meaning runs out.

One more brief comment: Cook, Ludwig, and Samaha observe that Scalia investigates the post-enactment history of interpreting the Second Amendment, which extends for decades after the Bill of Rights was ratified.  As I read the opinion, this mode of argument is entirely consistent with public meaning originalism.  The point is to show that interpretation of the text was consistent with the meaning derived from the prior analysis of the component words and phrases (as combined by the rules of syntax and grammar).

These quibbles aside, highly recommended.

For my take on Heller, see District of Columbia v. Heller and Originalism.

Full post as published by Legal Theory Blog on February 09, 2009 (boomark / email).