In Scalia’s Wake, Part 2

The Future of the Second Amendment Under an Originalist Supreme Court Majority

 

IN SCALIA’S WAKE, PART TWO

IV. ORIGINALISM

A. Original Intent vs. Original Meaning

Robert Bork

Modern originalism, as a mode of constitutional interpretation, was first developed and seriously promoted by Robert Bork in the 1960s while he was on the faculty of Yale Law School. According to Bork, the only legitimate method of constitutional interpretation was to determine what the Founders intended the words of the Constitution to mean – the original intent.[i] He developed his idea of original intent as a reaction to the numerous liberal decisions of the Warren Court. Scalia, nine years Bork’s junior, became known in conservative political circles as also a proponent of originalism. But, as Scalia explained, he did not subscribe to Bork’s theory of originalism which was based on original intent. Rather, Scalia rejected the search for the original intent, which he considered to be elusive and an ultimately subjective unworkable standard. To Scalia, it was what the Founders said (in the text of the Constitution), not what they intended that provided the foundation of an objective, value neutral, method of analysis. Scalia called it “original public meaning”. What does the text say, and what were those words understood to mean at the time the Constitution was ratified? Ultimately, Scalia’s “original meaning” standard superseded (one may say defeated) Bork’s “original intent” standard. Thus, when originalists now interpret a constitutional provision, they are not looking for what the drafters intended, only what words the drafters used in the text and what those words were understood to mean at the time the text was adopted.

B. Textualism vs. Originalism

Originalism is the method Scalia promoted as his preferred way to interpret the Constitution. Textualism is usually used to describe Scalia’s method of interpreting statutes. It differs from originalism only with respect to the time period used in determining the text’s meaning. In originalism it is what the words were understood to mean at the time the Constitution (or a subsequent Amendment) was ratified. In the case of textualism, it is what the words mean today (or earlier if the statute is an old one). Both methods focus on the words and their meaning and do not consider extratextual factors such as expressions of intent, legislative history, consequences, desirability, or policy implications. What do the words say, and what are they understood to mean? In most cases there should be very little difference between textualism and originalism because most words used in the Constitution have the same meaning today as they had in the 18th Century.[ii]

More frequently it has been the textual component of originalism that was determinative for Scalia. What does the provision in question say or not say? Regarding abortion, Scalia argued that Roe v. Wade[iii] was wrongly decided because the Constitution does not mention abortion. In his view, “If the Constitution did not mention a subject, then the courts could not deal with it as a matter of constitutional law.”[iv]

There has been a recent tendency to treat both constitutional interpretation and statutory interpretation under the banner of textualism. Scalia, himself, did this in Reading Law: The Interpretation of Legal Texts, a book he co-authored, which was first published in 2012.[v] This article sometimes uses the two words interchangeably, but it should be clear from the context what is meant.

C. “I am not a Strict Constructionist”

Like people, words are known by the company they keep. Scalia always emphasized the importance of context in interpreting a legal text. “[S]ound interpretation requires paying attention to the whole law, not home in on isolated words . . . Context always matters.”[vi]

And, according to Scalia, once viewed in context, the words should not be strictly construed, but rather should be given a reasonable construction. Scalia put it this way:

Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist . . . . A text should not be construed strictly . . . it should be construed reasonably . . . The good textualist is not a literalist.[vii] [Emphasis added]

Justice Samuel Alito

The question of how strictly a good textualist should construe a legal text recently pitted Justice Gorsuch (strictly) against Justice Alito (flexibly). This case is interesting and important because it demonstrates that textualism/originalism does not necessarily produce a predictable outcome.

The case was Bostock v. Clayton County,[viii] which raised the question whether an employer who fires an employee for being transgender or gay violates Title VII of the 1964 Civil Rights Act, which prohibits, among other things, discrimination in employment based on “sex.” Justice Gorsuch, writing for the majority, held that it did. Here is what he said:

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. . . . But, the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.[ix] [Emphasis added]

Justice Gorsuch went on to say that when one is fired because of his sexual preferences or identification, one is being discriminated against on the basis of sex. Bostock demonstrates that Justice Gorsuch is a committed textualist, even when it leads him to a non-conservative conclusion.

Bostock was a 6-3 decision with Justices Alito, Thomas and Kavanaugh dissenting. Justice Alito wrote:

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s Opinion is like a pirate ship. It sails under a textualist flag, but it represents a theory of statutory interpretation that Justice Scalia excoriated . . .[x]

Justice Kavanaugh, in his dissent, criticized the Gorsuch opinion for applying a literal meaning rather than the ordinary meaning, and quoted Scalia’s statement, “the good textualist is not a literalist.”[xi]

A second Gorsuch opinion showing how strictly he is inclined to stick to the literal text is Niz-Chavez v. Garland,[xii] a 2021 case that boiled down to the meaning of the word “a.” The statute in question required the government to send “a notice to appear” at a removal hearing in order to stop the running of the 10-year period of residency necessary for the immigrant to be permitted to contest their removal. Thus, if an immigrant gets a notice to appear after living in the U.S. for nine years and 11 months, their deportation cannot be challenged even if they later cross the 10-year threshold.

In this case, the government sent Niz-Chavez an incomplete notice, which omitted required information. Two months later, the omitted information was provided in a second notice. The government argued that since these two notices together provided all of the required information, the running of the 10-year period stopped, and Niz-Chavez could not contest his deportation. By a vote of 6-3, the Court rejected the government’s position. Justice Gorsuch wrote the majority opinion saying that the word “a” in the phrase “a notice to appear” meant that all of the required information had to be contained in “a” single notice. Justice Kavanaugh dissented, once again accusing Justice Gorsuch of being too literal (“ordinary meaning and literal meaning are two different things”).[xiii]

In this case, we see Gorsuch, Thomas and Coney-Barrett on the strict constructionist side and Kavanaugh and Alito arguing for a more flexible interpretation. The liberals on the Court (Sotomayor, Breyer and Kagan) joined in the Gorsuch opinion.

The various opinions in Bostock and Niz-Chavez demonstrate that different textualists can reach significantly different results depending upon how closely they stick to the written words. The Gorsuch opinions in these cases also show that he is likely to construe the words of the text being interpreted more strictly than his originalist colleagues, even where he reaches a non-conservative result. He may actually turn out to be a strict constructionist textualist.

 

V. THE SECOND AMENDMENT POSITIONS
OF THE THREE NEWEST JUSTICES

The three newest justices have each weighed in regarding their view of Heller. During his confirmation hearing, Gorsuch said that he considered Heller to be the law of the land.[xiv] He had previously said, in a 10th Circuit opinion, that the right recognized in Heller, “may not be infringed lightly.”[xv] As to how he might apply Heller in future cases, at his confirmation hearing he said the standard he would apply to regulations dealing with guns other than handguns is whether it’s a gun in common use for self-defense.” This “common use” standard is based on Scalia’s language in Heller and is a standard supported by the NRA, a member of which spent $1,000,000 for ads supporting Gorsuch’s confirmation.[xvi]

Well before his nomination, Justice Kavanaugh let the world know that he was a strong defender of gun rights. He sat on the D.C. Circuit panel that decided Heller II,[xvii] the case which considered the constitutionality of gun regulations adopted by the District of Columbia in response to the Supreme Court Heller decision. The three-judge panel upheld (2-1) D.C. regulations which require registration of handguns and which ban certain semi-automatic rifles and high-capacity magazines. Kavanaugh wrote a 52-page dissenting opinion saying that in his view the registration requirement and the semi-automatic rifle ban, were unconstitutional and that the ban on high-capacity magazines should be remanded to make a more complete record.

Now that Kavanaugh is on the High Court, perhaps the most significant aspect of his Heller II dissent is his rejection of the so-called intermediate scrutiny standard adopted by the majority. This standard involves a two-step approach in determining the constitutionality of gun laws. First, the court asks whether the regulation under review impinges on a right protected by the Second Amendment. If it does, then the court goes on to determine whether the regulation is substantially related to an important governmental objective. If it is, then it can be upheld. Kavanaugh rejected this approach saying, “I disagree with that approach. I read Heller and McDonald as setting forth a test based wholly on text, history, and tradition.”[xviii]

Under the Kavanaugh view, the nature and importance of the governmental interest involved is irrelevant and not to be considered. The positions he took in his dissenting opinion are not shared by any Court of Appeals that has considered the same issues, placing Kavanaugh about as far in the gun rights camp as one could go.

Like Justice Kavanaugh, Justice Coney-Barrett also wrote an opinion before her nomination which demonstrated her acceptance of Heller and her willingness to expand the Second Amendment beyond Heller’s language. In Kanter v. Barr,[xix] the Seventh Circuit upheld federal and state laws that prohibit a convicted felon from possessing a firearm. Coney-Barrett dissented saying that such a prohibition could constitutionally be applied only to those previously convicted of violent felonies or, in those cases of non-violent felons, where the government was able to prove that the individual defendant, if armed, was likely to be dangerous. She based her opinion on what she considered to be the history and tradition of excluding only “dangerous” individuals or classes of individuals from gun ownership and possession. In doing so, she went beyond the language of Heller regarding long-standing prohibitions on the possession of firearms by felons.[xx] Her view has not been accepted by any court, and on April 19, 2021, the Supreme Court denied three petitions by non-violent felons for certiorari in cases where a court of appeals had rejected her point of view.[xxi]

Under the “common use” standard embraced by Justice Gorsuch during his confirmation hearings, any firearm “in common use for self-defense purposes”[xxii] is within the protection of the Second Amendment. A future case challenging a ban on semi-automatic or assault weapons will present the Court with an opportunity to decide what it means for a gun to be in “common use” for self-defense purposes. Nationwide, only 30% of adults are gun owners. In other words, only 30% own any type of gun. Among the states there is a wide variation in gun ownership. In Montana, for example, 66.37% of adults own guns. In the lowest two states, (N.J. and Mass.), only 14.77% of adults are gun owners.[xxiii] The percentage owning semi-automatic assault rifles is necessarily much lower. If only, say, 10% of the adult population of a state possess assault weapons for purposes of self-defense, can it be said that they are in “common use” for such purposes? This question and others are questions which remain to be resolved by the new originalist majority on the Court.

Regarding Kavanaugh’s rejection of the two-step intermediate scrutiny standard adopted by the D.C. Circuit in Heller II, how is the full Court likely to rule on this issue? The intermediate scrutiny standard was adopted by the Third Circuit in United States v. Mazzarello[xxiv] and has been followed by at least nine other circuit courts.[xxv] Resolution of this issue can have far-reaching consequences on the ability of state and local governments to regulate possession and use of firearms within their respective jurisdictions. It is important to remember that the Kavanaugh position represents a point of view not yet adopted by any circuit court.

Regarding Justice Coney-Barrett, it appears from her dissent in Kanter v. Barr that she will place great emphasis on whether the type of regulation under review can be said to be of a type that is traditional and “long standing.” This point of view could call into question the validity of relatively recent laws barring semi-automatic assault rifles and high-capacity magazines. Since Justice Kavanaugh has already indicated that he would probably reverse such bans, and Justice Thomas probably would also, the constitutionality of such laws cannot now be assured. Justice Coney-Barrett, in her dissent in Kanter v. Barr, showed a willingness to expand Second Amendment rights beyond where any circuit court has yet gone, as has Justice Kavanaugh.

Regarding a ban on semi-automatic assault weapons, nine states plus the District of Columbia have already enacted such bans, almost all of which have been upheld by Courts of Appeals.[xxvi] At the present time there exists no split among the Circuits on bans of assault weapons. All courts of appeals which have considered such bans have upheld them.[xxvii]

Regarding the right to carry a gun in public, most states[xxviii] permit open carry of handguns, but many require a permit to do so. Concealed carry is more likely to be prohibited. The issue in some of the permit cases is whether, and to what extent, certain conditions or qualifications can be required in order to obtain a permit.[xxix] The Circuits are split on public carry restrictions. Judge Richard Posner of the Seventh Circuit Court of Appeals applied Heller and extended its narrow holding to protect an individual’s right to the concealed carry of firearms in public.[xxx] The D.C. Circuit held that the Second Amendment protects an individual’s right to carry common firearms beyond the home for self-defense.[xxxi] A number of Courts of Appeals have upheld prohibitions and restrictions on the public carry of firearms.[xxxii]

As a matter of pure textual analysis, the right to “bear” arms is and was understood to mean the right to “carry” arms. One does not carry arms in one’s home. Rather, one carries arms out of the home into public places. It is likely that at least five justices will interpret the words of the Second Amendment in this way and find that the prohibition or substantial restriction on the right to carry a handgun in public infringes on a protected right. The question is: will they do so in a concealed carry case? And, if so, will they apply intermediate scrutiny to determine that such infringement is nevertheless constitutionally permissible.

Continued in Part Three.

 

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[i] Toobin, supra note 11, at 21-22. (Part 1, note xi)

[ii] Justice Gorsuch gives the example of how the word “let” means something much different today than it did when Shakespeare had Hamlet threaten to “make a ghost of him that lets me;” the word “let” meant” hinder” (as the term is still used in tennis today when the ball is hindered by the net). See Gorsuch, supra, note 19, at pg. 117. (Part 1, note xix)

[iii] 410 U.S. 113 (1973).

[iv] Purcell, supra note 6, pg. 235. (Part 1, note vi)

[v] Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, Thomson/West (St. Paul, MN, 2012)

[vi] King v. Burwell, 576 U.S. 473; 135 S. Ct. 2480, 2497 (2015) (Scalie, J., dissenting).

[vii] Jeffrey S. Sutton & Edward Whelan, The Essential Scalia, 30 (Crown Forum, N.Y. 2020).

[viii] 590 U.S. ______; 140 S. Ct. 1731 (2020).

[ix] 140 S. Ct. at 1737.

[x] Id. at 1755-56.

[xi] Id. at 1825. Both Alito and Kavanaugh’s approach give them enough room to align a result with their personal views.

[xii] 141 S.Ct. 1474 (2021).

[xiii] Id., at 1491.

[xiv] Johannes Paulson, “Gorsuch to Feinstein: Heller is the new law of the land,” Truth About Guns, March 21, 2017.

[xv] This statement implies that Gorsuch will permit infringement under certain circumstances. This may be a hint that he would apply intermediate scrutiny to determine whether an infringement is constitutionally permissible. US v. Gomes-Perez, 667 F3d 1136, 1145 (10 Cir. 2012).

[xvi] Mark Hensch, NRA Member makes $1 million ad buy to tout Gorsuch, The Hill, 3/13/2017, thehill.com.

[xvii] Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011)

[xviii] Id. at 1276.

[xix] 919 F.3d 437 (7th Cir. 2019).

[xx] In Heller, Scalia said, “Nothing in this opinion should . . . cast doubt on long-standing prohibitions on the possession of firearms by felons . . . .” 554 U.S. at 626.

[xxi] Holloway v. Garland, S. Ct. Docket 20-782; Folajtar v. Garland, S. Ct. Docket 20-812; Flick v. Garland, S. Ct. Docket 20-902.

[xxii] The quoted words are taken from Heller, supra note 1, at 628

[xxiii] Jessica Learish, “Gun Ownership by State,” CBS News, cbsnews.com, July 23, 2020, Reporting on April 1, 2020 Rand Corporation study ranking gun ownership.

[xxiv] 614 F.3d 85 (3d Cir. 2010).

[xxv] See cases collected and cited in Binderup v. Attorney General United States of America, 836 F.3d 336 (3rd Cir. 2016).

[xxvi] Seven courts of appeals have affirmed the constitutionality of laws that prohibit possession of assault weapons or large-capacity magazines. See, Wilson v. Cook Cty., 937 F.3d 1028 (7th Cir. 2019); Kolbe v. Hogen, 849 F.3d 114 (4th Cir. 2017) (en banc); N.Y. State Rifle and Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242 (2d Cir. 2015); Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015); Heller v. District of Columbia, 670 Fed.3d 1244 (D.C. Cir. 2011) (“Heller II”); Worman v. Healey, 922 F.3d 26 (1st Cir. 2019).

[xxvii] A federal district judge has recently struck down California’s ban on assault weapons. That decision will be appealed to the Ninth Circuit. Also, in Duncan v. Bacerra, No. 19-563-76 (August 14, 2020), a three judge panel of the Ninth Circuit Court of Appeals affirmed 2-1 the same district judge’s ruling striking down California’s ban on high capacity magazines. That case is now before the court en banc.

[xxviii] California, Florida, Illinois and Hawaii generally prohibit individuals from openly carrying firearms in public.

[xxix] For a complete history of public carry laws see, Young v. State of Hawaii, No. 12-17808 (9th Cir. March 24, 2021).

[xxx] Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012).

[xxxi] Wrenn v. District of Columbia, 864 F.3d 933 (D.C. Cir. 2017).

[xxxii] See, Kachalsky v. City of Westchester, 701 F.3d 81 (2d Cir. 2012); Woolard v. Gallagher, 712 F.3d 865 (4th Cir. 2013); Drake v. Fillco, 724 F.3d 426 (3d Cir. 2013); Peruta v. California, County of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc) (concealed carry); Young v. Hawaii, No. 12-17808 (9th Cir., March 24, 2021) (en banc) (open carry).

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