Balkinization  

Friday, June 27, 2008

"This Decision Will Cost American Lives": A Note on Heller and the Living Constitution

JB

In the Boumediene decision a few weeks back, Justice Scalia argued that the majority's decision giving Guantanamo detainees a right to a judicial hearing would cost American lives. One could probably say the same thing of Justice Scalia's majority opinion in Heller. After all, if you lift the ban on handguns in the District of Columbia, it's entirely possible that some additional people will be killed as a result.

Indeed, there are passages in Justice Stevens' and Justice Breyer's dissents that come pretty close to making that accusation: Both argue that the Court is mucking around where it doesn't belong. Both argue that we face a difficult social policy issue where lives are at stake; and the Supreme Court is keeping elected representatives from adopting policies that might save lives. Yet in both Heller and Boumediene, the majorities (one conservative, the other liberal) blithely disregard stern warnings from the dissent that know-it-all elitist judges will cost American lives.

Now it's worth noting that I actually think that both Boumediene and Heller are correct on the merits. But its also worth noting that only one Justice on the Court agrees with me: Anthony Kennedy. (I confess I'm not entirely sure how I should feel about this fact. Am I turning libertarian? Am I a "swinger"? Or have I merely concluded that the D.C. City Council can sometimes act just as unconstitutionally as the Bush Administration?)

But whether or not my views on the merits of these cases are correct, the results in Boumediene and Heller demonstrate something important about the Supreme Court: No matter how much the arguments in Boumediene and Heller are dressed up in originalist garb, they show us that that living constitutionalism is alive and well. In each case the Supreme Court revises existing law to match changes in public opinion.

Boumediene reflected the public's increasing disgust with the Bush Administration's detention policies. In Heller, the Court changed existing law dramatically to adopt a new interpretation of the Second Amendment that is actually fairly close to the center of public opinion. It struck down one of the most restrictive gun control laws in the country and it recognized Americans' right to use handguns to defend their home.

Despite its long and occasionally dreary originalist exegesis, the Heller majority is not really defending the values of 1791. It is enforcing the values of 2008. This is no accident. Indeed, the result in Heller would have been impossible without the success of the conservative movement and the work of the NRA and other social movement actors who, over a period of about 35 years, succeeded in changing Americans' minds about the meaning of the Second Amendment, and made what were previously off-the-wall arguments about the Constitution socially and politically respectable to political elites. This is living constitutionalism in action.

Like Lawrence v. Texas, Heller is another example of how the Supreme Court exercises judicial review in response to successful social and political mobilizations, regardless of what individual Justices understand themselves to be doing. The only difference is that in Heller, it is conservatives who have successfully changed public opinion, a change that has now become reflected in Supreme Court opinions.

Welcome to the living Constitution, Justice Scalia. We couldn't have done it without you.

Comments:

Am I a "swinger"?

Well, if you are, I'm not sure I want to know.
 

-- After all, if you lift the ban on handguns in the District of Columbia, it's entirely possible that some additional people will be killed as a result. --
.
It's also entirely possible that the net number of homicides will decline. What will change is "who" is being shot.
.
Like seat belts and air bags. There is no way to prevent all death in automobile accidents. But shifting technology results in shifting contributions to death. Some people are killed by air bag deployments, that would have lived if they used only a seat belt.
.
That being said, I think Scalia's comment in Boumediene deserves the ridicule it's getting.
 

cboldt:

It's also entirely possible that the net number of homicides will decline. What will change is "who" is being shot.

And it's possible that habeas in Gitmo will reduce the net number of terrorism victims too. Theoretically, that it. And John Lott and his sock puppet Mary Rosh can go stuff themselves.

Like seat belts and air bags. There is no way to prevent all death in automobile accidents. But shifting technology results in shifting contributions to death. Some people are killed by air bag deployments, that would have lived if they used only a seat belt.

It is true that some people will die from air bags. What is absolutely undeniable is that more people -- many more -- are saved by air bags than are killed by them. That one is a "no-brainer", so to speak. And a bad example.

Cheers,
 

Despite its long and occasionally dreary originalist exegesis, the Heller majority is not really defending the values of 1791. It is enforcing the values of 2008. This is no accident. Indeed, the result in Heller would have been impossible without the success of the conservative movement and the work of the NRA and other social movement actors who, over a period of about 35 years, succeeded in changing Americans' minds about the meaning of the Second Amendment, and made what were previously off-the-wall arguments about the Constitution socially and politically respectable to political elites.

Well of course it couldn't have been done without all the activism and scholarship that proved that these previously off-the-wall arguments weren't really off-the-wall, but I don't know that that shows that the Court's really enforcing the values of 2008. And I don't know that Heller even reflects those values. Granted, a majority of Americans probably wouldn't support a handgun ban like DC's in their own town, but I think if you asked people whether the Constitution permits or should permit gun bans in extremely violent cities like DC, you'd get very different answers. And obviously if you ask people who actually live in these cities, you get different answers. As for Boumediene, it doesn't reflect the values of 2008 at all. At best it reflects the values of an elite subset of the population.
 

Great post. Cf. Scalia's interpretation regulatory takings.
 

"After all, if you lift the ban on handguns in the District of Columbia, it's entirely possible that some additional people will be killed as a result."

Couldn't agree more, more criminals will likely die now that D.C. residents are not forced to assemble, then load their weapons, before defending themselves or their families.

"In Heller, the Court changed existing law dramatically to adopt a new interpretation of the Second Amendment that is actually fairly close to the center of public opinion."

The entire point of the Heller majority's opinion was that it changed nothing, instead it merely expressly recognized, as the Constitution does, a preexisting individual right to keep and bear arms.

To portray pre-Heller (read, post-Miller) law as being anything else is to overlook that Miller was utterly unconcerned with the fact that the two criminals in the case were not militia members, and forget that Miller did not even "purport to be a thorough examination of the Second Amendment."

http://sophisticmiltonianserbonianblog.wordpress.com/2008/06/26/justice-scalias-juristic-tour-de-force/
 

I regard the decision as both ignorant and stupid. During the War of Independence American colonists rose to defend themselves against an oppressive regime, given that they had little experience of running their own affairs at the time of the Bill of Rights they were right to fear the possibility that another oppressive regime may arise. In spite of all the flaws in the current system there is now no need to contemplate an armed resurrection by citizens against an oppressive government. In any event it wouldn't work, in 1791 there was no standing army and the police service hadn't been invented. To say that citizens need handguns to defend themselves against an oppressive government is nonsense, the FBI is there to nip such a scheme in the bud, and if they do not feel safe in their homes the answer must be to improve the police and all that is possible to remove illegal handguns from circulation. One of the reasons they may not feel safe is because of the number of armed criminals. The idea of determined householders fighting it out against the invading bandit is largely nonsense, invading bandits have a preference for invading unoccupied homes. Should they mistakenly invade an occupied home they are at an advantage in two ways firstly they have their gun on their person which the householder probably hasn't and secondly the fact that they are invading someone else's home indicates a disregard of the law and so they are likely to have less compunction about shooting someone than householder. The problem is the NRA, which has proved itself to be a very effective lobbying organisation. Among the more active members of the NRA are gun dealers who see that creating this myth of self defence as being good for business. It doesn't appear to matter to them that 30,694 Americans died on firearms in 2005 compared with 210 in the UK in 2006. Their answer is that guns don't kill people people kill people avoiding the obvious point that people with guns kill people more easily than people without guns. So, if a householder buys a gun and keeps it in a drawer on the off chance that a bandit does invade while he's at home and the said bandit invades while he is out, the bandit will find a gun to steal and our good householder on returning home will say that proves he needs a gun, happily trotting down to his local gun dealer to buy another one. Thus keeping both the NRA and the criminal fraternity happy.
 

Having a gun also makes you more likely to get shot. Its true- look it up.
 

As I recall, when Scalia was interviewed by Charlie Rose last week, he mentioned that he sometimes removes from his opinions statements that that his colleagues may be concerned with as a courtesy. Reference was made to Scalia's slipperiest of slopes statement in Bourmedience about costing American lives; but Scalia said none of his fellow justices, including his bud Justice Ginsburg, asked him to remove that statement. I don't think Scalia thought that that statement might come back to shoot him in the ass of originalism. Washington D.C. is a Hell(er) of a Town - upcoming musical that will outshoot New York New York. Sales of bulletproof vests (with jockstraps) will rise, as sure as will the humidity in the District.
 

"Having a gun also makes you more likely to get shot. Its true- look it up."

Suspecting you're likely to be shot inspires you to own a gun. Correlation - It doesn't tell you which way the causality runs.

"over a period of about 35 years, succeeded in changing Americans' minds about the meaning of the Second Amendment,"

Actually, no. We succeeded in changing the legal elite's minds about the meaning of the Second amendment, to be more in tune with what Americans thought it meant all along. There's never been a time when the public thought it was anything but a guarantee of an individual right, the contrary view was just a fad among intellectuals.
 

Amazing how the robots at "National Review" were screaming earlier this week about 'judicial activism' but have been silent about "Heller".

If the 2nd gives you the right to violently oppose an oppressive US govt., who decides when this right can be used? Can you kill a cop because he's 'oppressive'?

The 2nd is as outdated as allowing Conestoga wagons on freeways. It had a purpose 250 years ago but not today. It's time to repeal the 2nd amendment to the Constitution.
 

no, it is not time to repeal the second amendment; however, it is time to add a further amendment to the Constitution to the effect of "Nothing stated herein shall be construed to prohibit the Congress or the States from regulating the sale, distribution and use of firearms to the people for non-military uses".

the gun control approach has been all wrong in the first place, as it plays right into the constitutional argument put forth by so called "originalists". amend the constitution and you eliminate the "originalist" argument, leaving manufacturers and the gun lobby exposed for what they are.
 

"Can you kill a cop because he's 'oppressive'?"

In most states, it's established law that you can kill a cop in self defense. Better have darned good evidence that it was justified, though.
 

Professor Balkin:

Boumediene reflected the public's increasing disgust with the Bush Administration's detention policies. In Heller, the Court changed existing law dramatically to adopt a new interpretation of the Second Amendment that is actually fairly close to the center of public opinion.

Actually, there was no surge of public opinion to create constitutional rights for foreign POWs and the Court's public popularity took a nose dive after this decision.

We will see whether that public displeasure is mollified by Heller.

Heller is not the creation of new law based on a change in public opinion. The Second Amendment has always been there in black and white and folks have always thought that it guaranteed them an individual right to keep and bear arms. Rather, this is a reversal of a pretty fundamental judicial error on par with Plessy.

Despite its long and occasionally dreary originalist exegesis, the Heller majority is not really defending the values of 1791. It is enforcing the values of 2008.

Scalia never claimed he was divining the original intent of the Second Amendment in Heller. Rather, he expressly observed that he was seeking the original meaning of the text. This "dreary" opinion is an archtypical example of textualism at its best supported by extensive scholarship and a solid understanding of basic grammar.

However, if Scalia chose to do so, he could have offered a ream of quotes from our merry band of quite revolutionary Founders on the necessity and public good of having the public armed to the teeth. Their comments make NRA public comments look tame in comparison.

In stark contrast, Boumediene has no basis in the common law or the Constitution. It is a complete legal fiction created by the 2008 Court based on its personal and not the public's policy preferences.
 

Phg: Go for it: We'll beat you down so hard it will be one for the history books.

There's a reason anti-gunners have never attempted to amend the Constitution to make gun control constitutional: Too few people agree with them to make it feasible!
 

Sort of agreeing with Bart DePalma, I think the parallelism between Boumedienne and Heller is faulty. Heller falls clearly into the "national majority overruling local majority" category. Nationally, gun control is very unpopular, though it is popular in a handful of large cities. Boumedienne falls into the "elite overruling popular" category. Political elites, especially lawyers, are unhappy with stripping accused terrorists of basic legal rights, although such measures are popular.

Sometimes, as in the desegregation cases of the 50s and 60s, the Supreme Court is acting on behalf of both a national majority and elite opinion. Those decisions tend to stick. Where one of those factors is lacking, the long-term result is less clear.

Has there ever been a case where courageous, independent solons on the Supreme Court defied both elite opinion and the national majority? It's not coming to mind.
 

This comment has been removed by the author.
 

sean -

bush v gore
 

I posited on my blog that Scalia has invented a "mere technology" exception to his brand of "original public meaning" original.

So, for instance, he is allowed to "update" the Fourth Amendment to accommodate heat sensors (Kyllo) and downright mock those who suggest that the Second Amendment only protects muskets and hunting knives...

...BUT, updates to, say, the Due Process Clauses, the Establishment Clause or the Cruel and Unusual Clause, are (for some reason) absolutely forbidden.

I don't know how Scalia resolves the contradiction, but that certainly appears to be his view.
 

nerpzcillus--LOL. Good answer. But certain conservative members of the elite, e.g., Judge Posner, endorsed Bush v. Gore, whereas I am willing to bet that Judge Posner doesn't own a gun and doesn't particularly object to the Chicago City Council restricting handgun ownership.
 

"foreign POWs"
So they're POWs now. I accept.

And from the rasmussen link:
"While voters are evenly divided on the need for stricter gun control, most believe that cities do not have the right to ban handgun ownership."

And as always living constitutionalism is not a theory, it's simply a fact. Language in use is never "dead" whatever Nino likes to say. Judges as an elite are a subcategory of society as law is a subcategory of language, The elite moves as society does if sometimes more slowly or quickly.

Why the discussion leads from induction rather than deduction is beyond me.
 

sean -

thanks. but i thought your question was basically the elite majority opinion. sure, there is a minority opinion who think bush v gore is correct, but (and i don't have any stats, just pure anecdotal) the vast majority of law profs and elite opinion think it was a terrible case. as far as Heller, it seems both prof Lederman and JB agree (at least overall) with it, but i'd bet they disagree with bush v gore. You aren't going to find a consensus on either case, but i would bet the elite opinion on Heller will have a smaller margin than bush v gore. (say 60/40 against in Heller, to 75/25 against for bush v gore). In fact, i think Heller might even be closer than that - a lot of opinions on the topic from profs seem to agree with the decision, or agree with the result, but find Scalia's reasoning less than overwhelming. plus, even though i agree with him, Scalia's short shrift to Miller leaves me unimpressed.
 

This comment has been removed by the author.
 

What's the average lead time between the appearance of an historically important idea and it's "brilliant" articulation in popular language? 50 years? 100? How long after that till it becomes a truism?
 

In 1791 the founders looked at the document(the Constitution)as found it lacking inthat several rights that predate government were missing or not clearly stated. Form that we received the gift of the Bill of Rights. As I sit here reviewing my copy, I can not help but note how our rights are interconnected inthat some rights could not survive without the others.The case I make is NO right can live without the 2nd amendment, I find noting today that would change the founders minds on the matter.To think that the government will protect us is folly(see average death tollevery day in D.C.,Chicago, New York). Last as to the NRA, they were chartered by Congress in the 1870's and have teaching firearm safety and supporting police for more than 100 years. If you want less crime, then pass laws that punish criminals, or enforce some of then 50,000 + gun laws on the books now.
 

It is hilarious to me to watch the leftists attempt to redefine activism. The argument that Heller is an example of a living constitutionalism is razor thin.

For one, the interpretation you describe as "new" is not, in fact, new at all. Second, no where do you show that the decision found as it did in order to better reflect public opinion. That it did could be entirely coincidental.
 

To revchris,
I took your suggestion and looked at the "average death toll per day" in Washington, DC. Without pouring through the UCR for the most up to date and accurate statistics, the number of homicides in DC in 2006 was 169. 169 divided by 365 = less than half a person is murdered per day in DC. Is this the staggering death toll you were pointing us towards? And New York is actually one of the statistically safest cities in America. (Look it up - FBI, Uniform Crime Reports - I promise they won't disappoint).

Call me crazy, but I liked being able to stroll on the National Mall knowing that if I saw a gun, that person could be arrested and charged with a crime immediately. Now I guess we'll have to wait until someone is actually shot at to notify police.
 

I posited on my blog that Scalia has invented a "mere technology" exception to his brand of "original public meaning" original.

So, for instance, he is allowed to "update" the Fourth Amendment to accommodate heat sensors (Kyllo) and downright mock those who suggest that the Second Amendment only protects muskets and hunting knives...

...BUT, updates to, say, the Due Process Clauses, the Establishment Clause or the Cruel and Unusual Clause, are (for some reason) absolutely forbidden.

I don't know how Scalia resolves the contradiction, but that certainly appears to be his view.


I don't see the contradiction. With new technology, the underlying principle isn't being changed, it's just being applied to new circumstances. With, say, the death penalty, it was around in 1791 and is mentioned several times in the Constitution, so the only way you can say that the 8th Amendment proscribes it is to say that the principle itself has changed.
 

With new technology, the underlying principle isn't being changed, it's just being applied to new circumstances.

This begs the question. Why does the principle reflect new technological circumstances but not new social circumstances?
 

By affirming both an individual right to bear arms and the ability of the government to regulate the ownership and use of weapons, the Court has embarked upon is a decades-long project of legislation from the bench. Now it is for the Justices hammer out how much regulation is too much, just as they have spent the last thirty years haggling over parental notification requirements, mandatory waiting periods, and the like in the abortion context. As if the Constitution has anything to say about it!

I look forward to learning which sorts of regulations impose "undue burdens" on the individual right to bear arms. Background checks? Carrying restrictions? Assault weapons bans? Excuse me while I consult the Constitution.

Oh well, if you can't beat them, join them!

http://eatatjims.blogspot.com/2008/06/what-kind-of-handgun-should-i-buy.html
 

Except people carried away by fervor, no one seriously doubts this ruling will cost many, many lives, for a very long time, particularly but not exclusively in DC.

I am not surprised that McCain favors it; he and his people have made it clear that the more violent death, the more political gain for them. They clearly view that as a good thing, unconfused by human considerations, and so of course this decision is a good thing to them.

It is less obvious how Obama reached the same conclusion. Either he is farther right of center (center in saner times, I mean) than I thought, or he is pandering to the gun lobby.

Are we going to discover now that the humane, well meaning part of the populace has no candidate?
 

Let's reflect upon the possible differences in arms regulation (reasonable or unreasonable) by each of the 50 states plus D.C. and arms regulation by the federal government with our Constitutional system of federalism and how there may be clashes/conflicts. (Reflect upon the results with abortion.) How might the Commerce Clause give federal regulation the upper hand over the 50 states plus D.C.? Does Scalia's originalism reflect the Framers' visions?

And what if a particular state decides not to regulate arms at all? Will the feds be able to fill the vacuum, perhaps with something similar to the Mann Act? Maybe it is time for the Uniform Laws commissioners to step in and address this for the sake of humanity.

I wonder how the rest of the world looks at Heller and U.S. democracy. Here at least it helps to promote fuller employment for the legal profession.
 

"And what if a particular state decides not to regulate arms at all"

And what if they made that decision, and the consequences weren't particularly bad? You know, the way concealed carry reform managed to NOT cause a bloodbath anywhere it was adopted? Even in Vermont, where it's regarded as a right, and doesn't require any licensing at all?

I think a lot of people suffer from historical amnesia concerning the state of gun regulation in this country, (Rather, the lack thereof.) even a few decades ago. I was born into a country where you could buy anti-tank guns mail order, where children could be sent by their parents to the hardware store to buy ammo. Where air travelers stored rifles in the overhead baggage compartment. Where parents with small children kept their guns in the closet, right next to the box of ammo.

It wasn't all that bad.
 

"And what if they made that decision, and the consequences weren't particularly bad?"

Yes, let's bring back the wild west and the libertarian gunslinger. Lawyers could advertize:


HAVE BRIEFCASE AND GUN - WILL TRAVEL

in Rocky Mountain country.

No worries about concealing - sort of like the late George Carlin's views on men in wars.

MINE'S BIGGER THAN YOURS!

Let's have a Second Amendment free market. (What might the late Joe Schumpeter say about that?)
 

This begs the question. Why does the principle reflect new technological circumstances but not new social circumstances?

Depends on the new social circumstance. If the new social circumstance is "we don't like this principle anymore" or "homicide's gone way up so this principle no longer makes much sense," there really isn't any way the principle can "reflect" those circumstances. You need to make an amendment. If, on the other hand, people develop wholly different attitudes about gender than those which existed in 1866, I think it makes sense to expand equal protection to gender, even if neither the authors of the 14th Amendment nor the states who ratified it thought it applied to gender discrimination. I say that because the underlying principle is that likes should be treated alike, and, while the wholly male Congress of 1866 didn't think that men and women were likes, and therefore didn't see the application to gender, we now do. So the principle isn't changing, social circumstances are expanding the applicability of the principle. Now, I'm not sure that that's really a defense of Scalia anymore because, if he were being entirely honest, he might say that equal protection shouldn't apply to gender discrimination.
 

Now, I'm not sure that that's really a defense of Scalia anymore because, if he were being entirely honest, he might say that equal protection shouldn't apply to gender discrimination.

I agree. And I'm not at all sure that what you described would be considered "originalism" by Scalia or Thomas.
 

Update, November 20, 20078: Bush-appointed judge orders the release of five Algerian men held at Guantanamo Bay for almost seven years. Judge Richard J. Leon of Federal District Court said the government's evidence was way too weak to hold the men, coming down to one unsubstantiated allegation by an unnamed source of undetermined credibility.

Yes, these men were locked up without charge or trial or even a hearing, in a hole of a prison camp, for seven years. And when the State finally had to produce evidence it had nothing that could convince even a Bush appointed judge that these men should be held one day.

The little problem with the State's case: these men had done nothing wrong. They presented no danger to anyone.

So thanks but no thanks for the hysteria, Tony. You're full of it. The facts in every case so far show you had little cause for fear, and even less for fear-mongering. Oh, and you may list yourself among the un-American, in my book.

Glenn Greenwald points out that if the Boumediene four had gotten their way, these men would still be rotting in their prison cell today, "without being charged with any crimes and without there being any credible evidence that they did anything wrong."

The shame of our nation is that they rotted there for seven years, also without any credible evidence they did anything wrong. The evidence didn't disappear during those seven years. The evidence never existed.

The only thing I can see that will cost American lives is the war crime we committed locking them up.
 

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