Balkinization: Wolves and Bears and . . . Bears. Oh My.

Wolves and Bears and . . . Bears. Oh My.

Marty Lederman

I was wrong. I predicted last week that despite the outpouring of scholarship and brief-writing in an originalist vein, none of the Justices' votes in Heller would be swayed, let alone determined, by evidence of original understandings (despite what their opinions might say). But I underestimated how Justice Kennedy -- perhaps the swing vote -- can in some cases come to embrace a particular origins narrative, which can determine how he approaches the case. (Alden v. Maine is a good example, where Justice Kennedy's views at oral argument and in his opinion were plainly based on his assumption that the States could not possibly have ceded certain of their sovereign immunity when "they" ratified the Constitution.) It appears that in the Heller case, too, Justice Kennedy's vote will be strongly influenced by his assumption that a certain original understanding is the key to interpreting the Second Amendment.

As has been widely reported, the Supreme Court is likely to hold that the Second Amendment protects a homeowner's right to possess at least some firearms, not only for potential service in an organized or effective militia, and not only to resist a possibly tyrannical central government, but also for purposes of self-defense against private threats.

For reasons basically captured by Eric Posner, I don't see any particular normative case for a constitutional right to use firearms for self-defense. And as I discussed in my previous post, I have been underwhelmed by the originalist case for a right to use firearms for self-defense, too -- at least without resort to the Fourteenth Amendment. Justice Kennedy, however, thinks otherwise: As Dahlia Lithwick so colorfully describes, at oral argument he appeared to be certain that the Second Amendment was ratified in order to protect "the right of people living in the wilderness [which apparently includes much of D.C.] to protect themselves" -- the right of "the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that."

Justice Kennedy's logic appeared to be (i) that settlers did use firearms to protect themselves on the frontier and (ii) (implicitly) that it would have been unthinkable for the state to have deigned to prevent them from doing so. Now, Justice Kennedy is certainly correct that a disarm-the-settlers statute would have been unthinkable at the time -- but not because there was a constitutional limitation on such enactments. Rather, there simply was no particular reason for the state to restrict the use of firearms on the frontier: The problems that confront the D.C. City Council today are just a bit different from those that legislatures considered in pre-revolutionary times.

What Justice Kennedy failed to identity -- and what all of the briefs in the case do not identify, as far as I can tell -- is any evidence that the Constitution was ratified in order to guarantee that such settlers would continue to be left free to shoot wolves in the event some legislature somewhere decided to impose limitations on such hunting. In other words, the fact that something was (for good reason) largely unregulated at the time of the Founding does not mean that anyone thought it could not be regulated, if and when a legislature found a good reason for doing so. Justice Scalia actually made this point quite nicely a few years back in response to an argument of Justice Thomas that anonymous speech must be constitutionally protected because there was so much of it at the Founding:

Anonymous electioneering was not prohibited by law in 1791 or in 1868. In fact, it was widely practiced at the earlier date, an understandable legacy of the revolutionary era in which political dissent could produce governmental reprisal. . . .But to prove that anonymous electioneering was used frequently is not to establish that it is a constitutional right. Quite obviously, not every restriction upon expression that did not exist in 1791 or in 1868 is ipso facto unconstitutional, or else modern election laws . . . would be prohibited, as would (to mention only a few other categories) modern anti noise regulation . . . and modern parade permitting regulation. . . . Evidence that anonymous electioneering was regarded as a constitutional right is sparse, and as far as I am aware evidence that it was generally regarded as such is nonexistent.

This still leaves the question of what it was that caused Justice Kennedy to be so fixated on settlers and wolves and grizzlies and Indian tribes in the first place. I think I figured out what it might have been: an amicus brief submitted by Virginia1774.org, which quoted the following excerpt from a 1632 Virginia colonial law: ". . . But it is thought convenient that any man be permitted to kill deare or other wild beasts or fowle in the common woods, forests, or rivers in regard that thereby the inhabitants may be trained in the use of theire armes the Indians kept from our plantations, and the wolves and other vermine destroyed . . . ”

Wolves, Indians, even "other wild beasts" (albeit no specific reference to the grizzlies . . . of Virginia): It's all there. Yet when I saw this quote, I was suspicious. Why did the amicus begin the quote with an ellipsis and the word "but"? Did the Virginia legislature really mean to be foreclosing any firearms regulation with respect to settlers and wild animals -- establishing a sort of unthinkable limitation that might be seen as a template for the Second Amendment?

Well, not quite. A quick Google search turned up this, Act 49 of the Virginia laws of 1632, which reads in full:

NOE man shall kill any wild swyne out of the forrest or woods, except in his [] or devident, without leave or lycense from the Governor. But it is thought convenient that any man be permitted to kill deare or other wild beasts or fowle in the common woods, forrests, or rivers in regard that thereby the inhabitants may be trained in the use of theire armes, the Indians kept from our plantations, and the wolves and other vermine destroyed. And for encouragement to destroy the wolves, it is thought that whosoever shall kill a wolfe, and bringe in his head to the commander, it shall be lawfull for such person or persons for every wolfe soe kild, to kill also one wild hogg and take the same for his owne use.

In other words, the statutory phrase quoted out of context by the amicus is an exception -- a wolf exception! -- or, more precisely, a contrasting authorization, to a general prohibition on killing "wild swyne" without a license from the Governor. Moreover, from all that appears, the Virginia license to kill wolves was not based on any notion of constitutional or fundamental right, but instead on the simple legislative finding that such killing was "thought convenient."

Thus, to the extent this 1632 Virginia law is to be an authoritative guide to the meaning of the Second Amendment (yes, I kid), I think the most it would demonstrate is that if a resident of D.C. brings the head of a wolf to Mayor Fenty, he has a constitutional right to a free ham.

Posted 9:00 AM by Marty Lederman [link]

Comments:

Frankly, I wasn't terribly impressed by Posner's normative case. First, because I don't share his apparent moral premises, but mostly because Posner's normative views are of essentially zero relevance to determining the meaning of a Constitution which is perfectly capable of meaning something he finds abhorrent.

The notion that, "I find X outrageous, therefore the Constitution can't mean X, regardless of what history or grammar might suggest." utterly unpersuasive. The Constitution clearly means any number of things I, for one, find objectionable, but at least I have the intellectual integrity to not confuse my preferences with the meaning of that document I neither drafted nor ratified.

A pity Posner doesn't.

# posted by

Brett : 10:23 AM

Today's SCOTUS considering Heller is clearly not Chief Justice Roberts' court, at least as yet. Compare the current court to the movie "Mr. Roberts" with the variation that Justice Kennedy is Capt. Morton (played by James Cagney) but subordinate in rank to Mr. Roberts (played by Henry Fonda) but thinking that he, Justice Kennedy, is actually in charge. We have only one Justice for the Betsy Palmer role. Who might Ensign Pulver be? I guess we'll have to await the decision and the anticipated Uzi of concurring and dissenting opinions to use the Mr. Roberts format in evaluating the national Viagra, keeping and bearing arms, and defining "Who's court is it, anyway?".

Peace to all this Easter Day. Better yet, peace after the Heller decision.

# posted by

Shag from Brookline : 10:27 AM

I am certainly the novice in this arena, but I have got to ask would we be having this discussion if at the time the framers were contemplating the 2nd amendment the shovel or the pitch fork was the weapon of choice? Should the government be telling the states how to regulate the use of farm equipment next?

# posted by

John Llewellyn : 10:29 AM

The other thing that struck me about Kennedy's comment was the romantic factual inaccuracy: there never have been grizzlies east of the Mississippi River; no one white American alive in 1791 had ever even seen one, much less fended one off with a musket.

I suspect these rarely-articulated mental images, romantic and false though they are, play a big role in originalist thinking.

# posted by

Mark Field : 11:08 AM

Well, let's face it: Kennedy, the marginal Justice, has set out to recreate the 2nd amendment right to "every terrible implement of the soldier", into a right to hunting and self defense arms. Which may have fallen within the ambit of the amendment Madison actually wrote, but certainly wasn't the full extent of it.

Better than nothing, though it's not an honest reading of the 2nd amendment.

Having decided to engage in this act of historical revisionism, you expect him to get his facts right?

# posted by

Brett : 11:13 AM

Justice Kennedy has, it seems, a propensity toward the ahistoric. Remember his repeated references to the "constitutional" tradition of political parties in the voting cases (Calif. Dem Party and the FEC cases). This all, of course, highlights the difficulty of determining original meaning or, in other words, what "was" really was.

# posted by

rln : 11:57 AM

Kennedy is the Court's faux conservative living constitutionalist.

Kennedy is engaging in the same error in which the "collective right"proponents engage - limiting the right to keep and bear arms to certain purposes when there is no such limitation in the text.

The Second Amendment does not protect any particular use of firearms by a citizen. Rather, the text expressly protects the possession and carry of firearms.

The question before the Court is whether the Second Amendment protects possession of ordinary firearms on one's own property.

If the Court were reviewing a statute which prohibited the use of firearms for self defense, then Kennedy would be better served to simply argue that defense of self and others is a fundamental right long recognized by society and protected under the Ninth Amendment.

# posted by

Bart DePalma : 1:15 PM

# posted by

Bart DePalma : 1:18 PM

As to Kennedy's "wilderness" approach, his opinion (decision of the court?) might start, describing the District: "It's a jungle out there!"

Marty,

You say " ... --and what all of the briefs in the case do not identify, as far as I can tell -- ...."

Does this suggest you read them all?

# posted by

Shag from Brookline : 1:32 PM

Kennedy is an important swing justice, so "marginal" is a strange term to use.

As to the suggestion made, it interests me how it is used to criticize him as having a too limited view. In answer to Dellinger trying to limit it to a state militia / collective rights view, Kennedy said:

It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?

That is, he wanted to expand the discussion to cover personal defense. Guns was used in part to hunt and in some cases guard against certain kinds of animals. Stereotypical images abound, think of visions of the first thanksgiving, but that doesn't change that reality.

The fact he might have misconstrued the range of a certain animal c. 1789 -- though though presence in Canada and in lands west of the Mississippi that was yearned for even then, somewhat settled or at least explored by traders and the like, means at least "one" white guy probably knew about them -- is a bit of a petty gotcha.

Anyway, the SC posed the question to be covered to focus on regulation of guns outside of the state regulated militia. Self-defense at home via the functional firearm was the focus of Heller's side. So why is it outrageous for that to be the focus of the case?

BTW, I listened to the case, and the reason why we should care about what the framers originally thought apparently is because the justices did. Stevens harped on it to try to limit the right at issue.

# posted by

Joe : 3:09 PM

BTW, I'm unsure how provisions covering "privileges" of the English people and whatnot was usually phrased in 1632, but I do know that there was even much later a lot of "oughts" and so forth, language much weaker than the BOR.

Anyway, bluntly speaking, does ML not think that by 1789, settlers in the backcountry -- who btw repeatedly thought those darn eastern leaning legislatures ignored their interests anyway -- didn't think (and rightly) they had a right to have weapons to hunt and when necessarily guard against dangerous animals?

If anything, the restrictive game laws of England only reinforced in some minds the importance of guarding against troubling animals. Surely, especially today, such use of guns to target animals/game can be regulated.

# posted by

Joe : 3:21 PM

The fact he might have misconstrued the range of a certain animal c. 1789 -- though though presence in Canada and in lands west of the Mississippi that was yearned for even then, somewhat settled or at least explored by traders and the like, means at least "one" white guy probably knew about them -- is a bit of a petty gotcha.

I'd say it's more symptomatic of Kennedy's general approach to the facts. He's pretty free and easy about them; in Carhart he just made them up. I think Brett's post covers Kennedy pretty well.

Anyway, bluntly speaking, does ML not think that by 1789, settlers in the backcountry -- who btw repeatedly thought those darn eastern leaning legislatures ignored their interests anyway -- didn't think (and rightly) they had a right to have weapons to hunt and when necessarily guard against dangerous animals?

Backcountry settlers at that time were pretty much opposed to the federal government at all, and certainly opposed to any federal regulation of their behavior (witness the Whiskey Rebellion). That doesn't mean we should take their views as the norm for the original meaning; quite the contrary.

# posted by

Mark Field : 4:14 PM

The fact he makes them up in some cases doesn't mean he does in all cases, or that he ultimately made up the ultimate "fact" so to speak, in this one. Overinclusive.

Brett's apparent idea that Kennedy had a more restrictive view of the 2A when the context of his question goes the exact opposite way, really makes me loathe to take his side on this point.

Actually, on some issues, they had a better reading of revolutionary principles than some authorities who suddenly found things they found bad about the British fine now that new bosses were in control.

On the exact issue of use of guns, with some regulation as I noted, for defense against animals, are you saying they were wrong?

# posted by

Joe : 4:44 PM

My last comment was in part influenced by the book
Taming Democracy "The People," the Founders, and the Troubled Ending of the American Revolution by Terry Bouton, which in particular addresses the "Whiskey Rebellion."

At least, it comes immediately to mind, though other sources influenced my conclusion.

# posted by

Joe : 4:55 PM

On the exact issue of use of guns, with some regulation as I noted, for defense against animals, are you saying they were wrong?

I don't believe defense against animals played even the slightest role in the language or ratification of the 2d A. To the extent guns get used for that purpose -- and that's hardly ever today -- that's a spandrel.

# posted by

Mark Field : 5:21 PM

"Brett's apparent idea that Kennedy had a more restrictive view of the 2A when the context of his question goes the exact opposite way, really makes me loathe to take his side on this point."

I think he has a more restrictive view of the 2nd amendment than the evidence supports. Granted, it's less restrictive than the District would prefer. ANY right is less restrictive than the District wants.

# posted by

Brett : 7:38 PM

Hopefully, Scalia or Thomas rather than Kennedy is writing the opinion for the Court. The opinion needs to be well grounded in text and history without any side issues so future Courts will have difficulty reversing it.

Bart:

1. The Chief is writing it.

2. It will contain plenty of text and history.

3. It will narrowly hold the DC law unconstitutional and either implicitly or explicitly say that almost all gun laws are constitutional.

4. Like most opinions from the court's current conservative majority, it will be reversed if 5 votes are ever accumulated to reverse it.

Any questions?

# posted by

Dilan : 3:06 AM

"Kennedy is an important swing justice, so "marginal" is a strange term to use."

Marginal in the sense of "on the margin". Not "a" marginal Justice, "the" marginal Justice. Rulings tend to reflect the reasoning of the last Justice added to the majority, the justice on the margin, which would be Kennedy in this case.

Of course, Kennedy is not "a" marginal Justice, whether or not you're a Justice is a boolean function, admitting no such judgment.

Clear?

# posted by

Brett : 6:32 AM

What intrigues (ok, outrages) me is the mis-use of history. I'm comforted to hear that Roberts is writing the opinion because I have reason to believe that he has a clerk well versed in historical research.

It's been a while since my professional responsibility class in law school, but what of the behavior of the authors of the brief? As an historian, I take their actions as lying. I didn't think that you could do that to a court, not to mention to THE Court!

I also wonder how Kennedy feels about playing the dupe. Do you think that he cares?

BTW, I think that they have a strong enough argument without lying.

# posted by

Unknown : 8:54 AM

I had the impression from a recent post on the Legal History Blog that there were two briefs submitted by historians. Saul Cornell was a co-author of one such brief on the side of the District. The other brief, supporting Heller, had a single author from, as I recall, the Hoover Institute. I read Cornell's book last year and was impressed with the approach of a historian as opposed to both the constitutional originalst and the living constitutionalist approaches. Has any historian (legal or not) out there read and compared these briefs prepared to comment on them?

# posted by

Shag from Brookline : 10:15 AM

Listened to Heller for the 3rd time today. Think I must admit that IMHO the military amici probably was the closest to a synthesis of the Amendment's clauses: Possession for preparedness in contemplation of militia service. Akin, in a way, to a non-compulsory Swiss system.

# posted by

Der Schatten : 4:26 PM

Ah, yes, Saul Cornell of Scribblescrabble fame, editor of purchased law review editions in which only opponents of gun ownership are invited to write, defender of Bellesiles, the Joyce foundation's, excuse the phrase, hired gun.

I suppose he can be pretty persuasive if you've never been exposed to the evidence that he's wrong.

# posted by

Brett : 6:45 PM

And the evidence that Cornell is wrong is where?

# posted by

Shag from Brookline : 9:35 PM

That he couldn't do better than Scribblescrable when challenged to produce a contemporary quote showing that someone, anyone, thought it wasn't an individual right? That might worry you.

Cornell is the gun control equivalent of the head of the Tobacco Institute. True, despite that he can occasionally get something right. So could the Tobacco Institute, for that matter. But he's not paid to get things right, he's paid to get them the Joyce foundation's way. In that capacity, he does a lot of things, such as buying those special issues of law reviews, which aren't particularly respectable.

# posted by

Brett : 10:02 PM

I erred earlier in referencing the Hoover Institute. It is the Cato Institute brief starring history professor Joyce Lee Malcolm. The cover sheet of the brief just above the attorney signature reads:

"[The Right Inherited from England]"

This brief runs 34 pages and should be a fairly quick read.

Cornell is on the other brief with Jack N. Rakove, David T. Konig, William J. Novak, Louis G. Schwoerer "et al" which runs 36 pages. (Carl Bogus served as counsel. His is the first book I read on the Second Amendment. I recall there was a lively "debate" well over a year ago at Boston's Social Law Library with Bogus and Prof. Malcolm.)

I plan to read these briefs over the next several days. But I do not plan to read the other 67 briefs that were filed. A total of perhaps close to 3,000 pages is a bit much for a pair of 77 year old eyes.

What I have been fascinated by are the disciplines of historians in comparison to those of political scientists and originalists/living constitutionalists. Mary Dudziak's Legal History Blog is a great source for accessing works of legal history scholars, whose disciplines may vary somewhat from non-legal historians. I don't know if these cross-disciplines can come up with the correct or a better answer to the issues of the Second Amendment but I'll give them a shot.

But historically, does Heller even come close to the importance of Brown v. Board of Education? Is Heller a disconcerting sideshow to the many deeper and more serious constitutional issues to be resolved that have been raised on this and other Blogs? Our Constitution has been around a long time and disputes over its meanings arose shortly after its enactment, continuing, escalating to this day. Every once in a while Joseph Schumpeter's creative destructionism of capitalism comes to mind. Might this apply to the Constitution?

# posted by

Shag from Brookline : 6:33 AM

To add to my preceding comment, the Amici brief of historians supporting the District on Heller lists in an Appendix short bios of those named on the cover page plus the "Et Al" who deserve mention:

Fred Anderson, Carol Berkin, Paul Finkelman, R. Don Higgenbotham, Stanley N. Katz, Pauline R. Maier, Peter S. Onuf, Robert E. Shalhope, John Shy and Alan Taylor.

On the subject of slavery, the Civil War and its Amendments, I have been very much impressed with Prof. Finkelman's books and articles.

# posted by

Shag from Brookline : 9:11 AM

shag:

Heller and Brown are the same type of cases - reversals of long standing legal fictions - "separate but equal" and "collective right" - designed to deny fundamental constitutional rights.

Now we just need a reversal of Roe to create a trio.

# posted by

Bart DePalma : 1:54 PM

Let's consider the harm (to whom and to what extent) caused by Plessey v. Ferguson for so many years before Brown v. Board of Education with the harm caused by U.S. v. Miller that deprived individuals from keeping and bearing sawed-off shotguns and machine guns.

As for Roe, 'tis the season for Shad Roe, not its reversal. Like the Shad, the trolls (usually males who rely upon keeping and bearing arms for their testosterone) continue their upstream struggles to burden women even in cases of health, death, rape and incest.

# posted by

Shag from Brookline : 8:53 AM