Indeed, American politics has not seen a moment like this one since 1987. That was when the retirement of moderate Justice Lewis Powell, who was the pivotal vote on many big issues, left the court with four strong conservatives and four strong liberals. (The latter included Sandra Day O’Connor, whose votes through 1987 had been quite conservative.)

It was clear then that if the Democratic-majority Senate confirmed President Ronald Reagan’s first nominee, the very conservative Judge Robert Bork — as at first seemed likely — the court would swing hard to the right.

Bork himself later told me and others that he would have been the fifth vote to overrule Roe v. Wade and a lot more liberal precedents. But Democratic senators and liberal interest groups went all out to stop him and succeeded by a 58-42 vot

Now the court has four strong liberals, three strong conservatives and one less consistent conservative, Justice Anthony Kennedy. He sometimes joins the liberal bloc on issues including abortion, gay rights and the death penalty. Kennedy also happens to be the Reagan nominee whom the Senate confirmed after Bork’s defeat.

If and when a liberal replaces Scalia, therefore, the court will likely overrule or cut back sharply major conservative precedents including those limiting abortion rights, those restricting race-based affirmative action (in theory if not so much in practice) and those giving strong First Amendment protection to unlimited spending in election campaigns.

The post Here’s How the Law Would Dramatically Change If a Liberal Replaces Scalia appeared first on Stuart Taylor, Jr..

But what he was obviously trying to say made an important point that had nothing to do with racism — a charge hurled at Scalia by people including Harry Reid, the Senate Democratic leader, who once again wallowed in shameless demagoguery.

calia began by saying that “there are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less advanced school, a slower track school, where they [would] do well.”

This was seen by many as a racist suggestion that blacks are inherently unfit for top schools. And phrases like “less advanced school” and “slower track school” sounded derogatory.

But Scalia clearly meant to say that perhaps it does not benefit blacks to use large racial preferences to get them into a highly selective university where, all the evidence shows, such preferentially admitted students don’t do well.

He continued for a few more awkwardly worded sentences to sketch the consequential theories advanced in works including a 2012 book by Richard Sander and me, “Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It,” and in amicus briefs by us and others.

Scalia’s bad choice of words gave critics such as Reid a pretext to dismiss mismatch theory without confronting the growing body of evidence that it points to very serious problems caused by large admissions preferences.

But the gist of Scalia’s point is consistent with common sense. Why is anyone surprised at the idea (confirmed by data) that black students have a hard time thriving academically when brought by very large racial preferences into competition with classmates most of whom are far, far better prepared? (Small preferences, we think, create no such problem.)

Scalia’s point is also supported by a large and growing body of social science studies by more than 20 respected scholars about the effects of large racial preferences.

Mismatch theory does not deny that many black students are academic stars. President Obama, for one. It points to the problems of all students who are admitted via large preferences, as are some very rich donors’ children, some athletes, many Hispanic students, and the vast majority of black students.

(The “legacy preferences” at many schools for alumni children, which I also oppose, appear to be much smaller, with a much smaller mismatch effect, the scant available data suggest.)

The research also suggests that black students do fine when competing against Asians and whites who arrive at college with similar academic credentials.

While the details are complicated, mismatch theory and the research underlying it are easy to understand in a general way.

Below are five critical facts (detailed in “Mismatch”) that no open-minded expert doubts, although the universities, other supporters of racial preferences, and most of the news media conceal them insofar as possible.

(1) Because of very large racial preferences in admissions, the racial gaps among entering students in test scores, high school grades, and other indicia of academic preparation are enormous at virtually all selective colleges — on the order of 200-450 SAT points between the mean black and Asian, and 150-400 points between the mean black and white, students at the same college. There are also commensurate racial gaps at almost all selective colleges in entering students’ high school grades if adjusted for high school quality.

(The gaps are much smaller among “holistically” admitted students at state colleges in California, Michigan, and other states where racial preferences have been outlawed.)

(2) As a result, there are also large racial gaps in academic performance in college and graduate school. More than half of black students end up in the bottom tenth of their classes in law schools and in the bottom quarter at most selective colleges, no matter how hard they work.

(3) Five undisputed, peer-reviewed studies show that these racial gaps also force highly disproportionate numbers of the many black students who are interested in becoming scientists to give up that ambition. The reason is that they cannot do well in science and other STEM courses and thus move into soft, easily graded courses.

(4) All this creates or aggravates racial isolation and self-segregation, in part because studies show that unsuccessful students take different courses than successful students and that most students socialize mainly with their academic peers.

(5) Most of same black students who suffer academically at schools to which they were admitted via large preferences would do far better at somewhat less competitive schools where their academic preparation would make them competitive with classmates. But because of what is called the cascade effect, as long as there are large preferences there will be large racial gaps in academic preparation and performance at virtually all selective schools.

My co-author and I, and others, draw from the limited available evidence two hugely important but debatable inferences. The first, of which I am very convinced, is that mismatch leads to a loss of intellectual self-confidence among many black students that may be long lasting.

The second inference is that many recipients of large racial preferences would be better off in the long run — with more learning, better careers, and perhaps happier lives — if they went to less prestigious but still excellent schools where they could do well academically.

Prestige has obvious advantages. The question is whether they outweigh the costs of being near the bottom of the class.

Serious mismatch scholars say that more data, which universities assiduously conceal, are needed to shed light on these two issues, and on related ones such as whether the current campus unrest is related to the academic problems that most black students suffer because of mismatch.

On the other hand, virtually all of the highly credentialed scholars who attack mismatch theory gloss over the five numbered facts above — which they know to be true — and launch ill-founded and often intemperate attacks on the debatable inferences as though they discredit all of mismatch theory.

At the same time, these anti-mismatch zealots furiously oppose making available to scholars or the public the data that could shed light on the long-run effects of large racial preferences on the students about whom they purport to care. I think I know why.

The post Scalia’s Poorly Worded Comment Has Merit appeared first on Stuart Taylor, Jr..

In an Oxford-style Intelligence Squared debate held on December 3, 2015, Roger Clegg of the Center for Equal Opportunity and I argued for the proposition that “The Equal Protection Clause forbids racial preferences in state university admissions.”

You can watch video of the debate at IntelligenceSquaredUs.org or via Intelligence Squared’s YouTube channel. The transcript may be read online at IntelligenceSquaredUS.org.

The post Debate: The Equal Protection Clause Forbids Racial Preferences in State University Admissions appeared first on Stuart Taylor, Jr..

Because the court sided with the president, Obamacare will continue in effect with no change from the current pattern of distributing to many millions of low-and-middle-income people in all 50 states the premium subsidies (in the form of tax credits) that make health insurance affordable for many or most of them.

Obama declared soon after the decision was announced that “the law is working and it’s going to keep doing just that. This is health care in America.”

Chief Justice John Roberts, the author of the opinion, and Justice Anthony Kennedy joined the four more liberal justices over a strong dissent by the three more conservative ones, wisely bowing to the clear, though incompetently expressed, intent of Congress to make health insurance affordable in all 50 states.

Roberts and Kennedy did the right thing despite Kennedy’s vote three years ago to strike down a key provision; despite the furious attacks they could expect from conservatives calling them traitors; and despite the tensions between Thursday’s decision and the principles of “textualist” statutory interpretation that both men largely espouse. (More on that below.)

Ironically, many Republican officeholders and politicians also will welcome the decision, at least privately.

They would be in a very difficult position had the Court adopted the dissenters’ view that a few words buried deep in the law’s 2,700 pages made almost 6.4 million low-and-middle-income people in the 34 affected states ineligible for subsidies and thus, in most cases, unable to afford insurance.

Roberts wrote persuasively for the majority that taken as a whole, the language, contextual meaning, structure, history, and overarching purpose of the Affordable Care Act (ACA) made legal in all 50 states the subsidies that the Obama administration has been distributing to make their health insurance affordable.

While admitting that the arguments of the dissenters and the plaintiffs about the “plain meaning” of the relevant ACA provision were “strong,” the chief justice held that “the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”

Spirited dissent

Justice Antonin Scalia’s dissent, joined by Clarence Thomas and Samuel Alito, was characteristically hyperbolic.

They thundered that the decision was “absurd,” “feeble,” “indefensible,” “interpretive jiggery–pokery,” and shows that “[w]ords no longer have meaning,” while concluding that “the discouraging truth [is] that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes top uphold and assist its favorites.”

The dissenters, like the plaintiffs in the case, King v. Burwell, argued that people in the 34 states that have left it to the federal government to establish the ACA-required online insurance “exchanges,” or marketplaces, rather than establishing exchanges for themselves, do not qualify for the premium subsidies.

They claimed that section 36B of the ACA means what it says when read literally and without regard to Congress’ intent: that subsidies are available only to people “enrolled . . . through an exchange established by the state.”

Chief Justice Roberts, however, held that while the law was “ambiguous,” the majority’s interpretation was both consistent with “the way different provisions in the statute interact” and necessary to avoid defeating the ACA’s purpose by sending insurance markets in the federal-exchange states into an “economic death spiral.”

Without premium subsidies, he explained, many people in those states could not afford insurance; many of those would become exempt from the law’s mandate that they buy insurance; other healthy people would also drop insurance; and premiums would soar.

Roberts further explained that the ACA “contains more than a few examples of inartful drafting,” because “Congress wrote key parts of the Act behind closed doors, rather than through the traditional legislative process. . . . As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.”

Still, he said, a “fair reading” must take into account the fact that Congress passed the ACA “to improve health insurance markets, not to destroy them.”

Scalia retorted in his dissent that the Roberts interpretation “is not merely unnatural; it is unheard of. Who would ever have dreamt that ‘Exchange established by the State” means ‘Exchange established by the State or the Federal Government“? He added that “[o]nly when it is patently obvious to a reasonable reader that a drafting mistake has occurred may a court correct the mistake.”

The closest the dissent came to addressing the law’s clear purpose of improving health insurance markets was to say that “even if making credits available on all Exchanges advances the goal of improving healthcare markets, it frustrates the goal of encouraging state involvement in the implementation of the Act.”

Scalia added that “[w]e lack the prerogative to repair laws that do not work out in practice,” and that the Court’s “revision” of the ACA was not “respectful of congressional authority” but rather “judge-empowering” — and in a way that authorizes the federal government “to spend tens of billions of dollars every year in tax credits on federal Exchanges.”

Opposite decision

A decision going the other way could have caused the collapse of health insurance markets in the 34 affected states, with few but sick people continuing to be insured and, thus, soaring premiums.

Such a ruling against the president also would have sown conflict among Republican politicians and presidential candidates.

Congress would have been under heavy Democratic pressure to adopt federal legislation nullifying the Court’s decision lest Republicans be blamed for helping the Court take health insurance away from millions of Americans. Republican officials in the affected 34 states would have been under great pressure to create their own insurance exchanges.

But efforts to help Democrats “save” Obamacare would have offended Republican base voters.

Unlike the constitutional challenge to the ACA’s so-called  “individual mandate” that the justices rejected by 5-4 on June 28, 2012, Thursday’s decision focused on deciding what the subsidy provisions of the massive, hastily drafted ACA mean.

Roberts stunned Court-watchers when he sided with the four liberal justices and upheld the individual mandate in the 2012 decision, National Federation of Independent Business v. Sebelius.  His usual allies — Kennedy, Scalia, Thomas, and Alito — angrily assailed him. Many other conservatives called him a traitor.

This barrage was intensified by a well-sourced news report that Roberts had initially voted to strike down the individual mandate and changed his mind after liberals led by Obama had preemptively denounced any decision to strike down the mandate as politically motivated conservative “judicial activism.”

The mounting crescendo of conservative denunciations of Roberts will be even more bitter this time.

Had Roberts (and Kennedy) voted against Obama, on the other hand, it would have fed the kind of attacks that the chief justice dreads on the Roberts Court’s conservative, Republican-appointed majority as a bunch of robed politicians.

Textualism vs. intent

King v. Burwell, brought against Health Secretary Sylvia Mathews Burwell by four Virginia plaintiffs, posed a problem of principle for Roberts and Kennedy that is not widely understood. As noted above, both largely espouse the “textualist” approach to statutory interpretation embraced by the court’s other conservatives, and many others.

Textualism ignores the “congressional intent” proclaimed by congressional leaders and heeds only the words of a law’s text. One major justification for this approach is that a statute’s text is usually the best guide to what Congress meant, and the most resistant to manipulation by politicized judges. The other is to force Congress to say what it means and mean what it says for the sake of clarity and consistency in the law.

Textualism works pretty well with garden-variety statutes. But what’s a textualist to do when Congress quite obviously did not mean the words (“established by the state”) that some bleary-eyed staffer inserted into a massive pile of paper that no member (or few) ever read? And that nobody caught because of the peculiar politics that prevented that pile of paper from going to a conference committee for vetting? And when the law, like it or not, is enormously important?

Is the best answer Justice Antonin Scalia‘s suggestion at the March 4 oral argument that the court must read “established by the state” literally even if the wording “may not be the statute [that Congress] intended” and even assuming that it might “produce disastrous consequences?”

Roberts and Kennedy appear not to think so, and it’s a good thing too. Their votes, if not the main thrust of the Roberts majority opinion, seem to embody what a pragmatist might say:

“We all know that those four words were a huge blunder, saying the opposite of what Congress meant. But like it or not, this law is so important, and the wreckage caused by rigorous application of textualism would be so great, that we should rise above principle, put clarity and consistency aside this time, and do what we know Congress intended.”

Solicitor General Donald Verrilli made no such pragmatic argument in defense of the Obama interpretation, probably out of concern that it might seem unprincipled to textualist justices. Instead, he argued that in the context of other ACA provisions, the words “provided by the state” are a “term of art” that mean the opposite of what they say.

Verrilli’s argument was a stretch. But it worked — if only because Roberts and Kennedy were willing to temper their textualism with a dose of pragmatism.

Another challenge

King v. Burwell is not the last major legal challenge to Obamacare. Another case raises a possibility that despite the ruling for Obama on Thursday, billions of dollars in ACA subsidies for insured people with modest incomes may still be in peril.

In House of Representatives v. Burwell, the Republican-led House argues that the president violated the Constitution by using Treasury funds that Congress had not appropriated to pay for $175 billion in subsidies over 10 years. The administration has been using the money to reimburse insurance companies, as provided by the ACA, for helping modest-income insured people reduce out-of-pocket costs including deductibles and copayments.

The administration initially asked Congress to appropriate the money. Then, when Congress did not act, it claimed that it already had authority to use a separate account established for tax credits and refunds. Calling the payments an urgent priority, it proceeded with the spending in early 2014.

The House claims that Obama thereby violated Article I, Section 9 of the Constitution. It says: “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.”

This “power of the purse” is seen by Congress as its most important protection against presidential usurpation of power.

The lawsuit got an apparently respectful reception from Judge Rosemary Collyer, of the U.S. District Court for the District of Columbia, at a spirited hearing on May 28. She aggressively challenged Justice Department lawyer Joel McElvain’s argument that the House had no legal standing to sue.

“So it is your position that if the House of Representatives affirmatively voted not to fund something… then that vote can be ignored by the administration, because after all no one can sue them?” Collyer asked McElvain. She added: “I want you to explain . . . why it’s not an insult to the Constitution.”

Judge Collyer, who was appointed by President George W. Bush, said she had “no idea” how she would rule on the standing issue, which is so far the only one before her.

The House filed its highly unusual lawsuit challenging the administration’s spending last November; the suit also seeks a ruling that the administration violated the ACA when it delayed implementation of the ACA’s mandate that certain employers provide health insurance to their workers.

The post Court Shows Judicial Restraint, Rejects Threat to Obamacare Subsidies appeared first on Stuart Taylor, Jr..

MARY AGNES CAREY, KAISER HEALTH NEWS: Welcome to Kaiser Health News, I’m Mary Agnes Carey. By a vote of 6-3, the Supreme Court today upheld the health law subsidies that helped millions of Americans purchase health insurance. With me now to discuss the decision is legal analyst Stuart Taylor of the Brookings Institution, and Kaiser Health News Senior Correspondent Julie Appleby. Thanks to both of you for being here.

STUART TAYLOR JR., THE BROOKINGS INSTITUTION: Nice to be with you.

JULIE APPLEBY, KAISER HEALTH NEWS:  Good to be here.

MARY AGNES CAREY: Stuart, I want to start with you. I want to talk about ]what Chief] Justice Roberts wrote for the majority.  Why did he uphold the administration on this subsidy issue?

STUART TAYLOR JR.: The chief justice began by acknowledging that a few poorly words in this 2,700-page law, if they were interpreted literally, would cripple the Affordable Care Act in 34 states for complicated reason. So he said, but we don’t have to interpret these words literally, we shouldn’t interpret them literally, because when you read them in the structure of lots of interlocking provisions of this statute, in that context and in the overall structure, they become ambiguous. And then you look to what was Congress trying to accomplish here? They were trying to improve insurance markets all over the country. We shouldn’t interpret this law, unless we really have to, in terms of language, as having to destroy health insurance markets.

Because he explained that it would destroy health insurance markets if the Obama interpretation were rejected. First, it would mean there would be no premium subsidies for millions and millions of people in those 34 states. Then, many of them wouldn’t be able to apply for insurance. They wouldn’t buy insurance; others would no longer have to buy the insurance for complicated reasons, and there would be what he called the “death spiral.” With premiums soaring because only sick people are getting insured, he says, Congress certainly didn’t mean that to happen. And that heavily influenced his interpretation.

MARY AGNES CAREY: Justice Scalia wrote the dissent. He was equally as spirited in a completely different reading.

STUART TAYLOR JR.:  Yes, I’m just looking at some of his adjectives, he’s always fun for adjectives. Absurd, feeble, indefensible and my favorite was a noun interpreted “jiggery pokery.”

MARY AGNES CAREY: Yeah, I like that one.

STUART TAYLOR JR.: Those were the ways he characterized the Roberts’ opinion and he went on in his usual eloquent hyperbolic dyspeptic way for 21 pages to trash the majority opinion. And Roberts responded, as is customary in majority opinions, in a much more measured fashion in a few little footnotes saying well Justice Scalia says X or the defense says Y, but we disagree, here’s why.

MARY AGNES CAREY: So in the dissent, the words “established by the state” were interpreted much more literally as an exchange established by the State. That’s how I read that as well.

STUART TAYLOR JR.: Exactly and that’s what was forecast and that’s the whole argument in the case. Does the fact that they said subsidies are available in exchanges, marketplaces established by the state as opposed to those established by the federal government, are people in those ineligible unless they are established by the State,

Does that mean you can’t get a subsidy? And the dissent basically said, “It means what it says, it says what it means.”  And the majority said, “Ah, not so fast.” Sometimes, things don’t say exactly what they seem to say when you read them in their larger context.

MARY AGNES CAREY:  Going back to the majority opinion for a minute, is it written in a way that a future Internal Revenue Service couldn’t come in and say then subsidies aren’t available in the federally run exchanges.

STUART TAYLOR JR.: No, Chief Justice Roberts ruled that out, basically. The question was debated at oral argument. In fact, Roberts asked, if we’re deferring to the interpretation of the IRS, does that mean a new IRS could come along and say we’re changing it? And he mooted that question in the decision by saying, we’re not deferring to the interpretation of the IRS. We’re agreeing with the interpretation of the IRS, but it’s our interpretation and the IRS can’t change it.

MARY AGNES CAREY:  And Julie, let’s talk a little bit about the administration, the Democrats.  They must be just elated over this. What’s been the reaction?

JULIE APPLEBY:  You know, a little while ago, the president came out of the White House and gave a short speech. And basically, he said that after more than 50 attempts to repeal this, after a presidential election, after a couple of Supreme Court challenges, he said the ACA is here to stay.

So he made that very clear: The ACA is here to stay.  He went on to say the Supreme Court upheld a very critical part of this law — the subsidies that more than 6.8 million people are currently receiving. But I think in a nod to some of the discussion about repeal, he also mentioned the broader context here — that this law affects a lot of Americans. And he mentioned a few things. He mentioned being able to keep your kids on your plan until they’re age 26, and he mentioned the fact that insurers can no longer reject people who have medical conditions. So he tried to show that this is a broad-reaching law. He did come out and say that he wants to work with the Republicans and the Democrats. He acknowledged there’s more that needs to be done, and he said he would work with them.  He called out some of the states that haven’t yet expanded Medicaid. There are about 20 states who haven’t expanded eligibility for the Medicaid program and he said he would be working with the governors and legislatures there to try to encourage them to do that.

MARY AGNES CAREY:  How about Republicans? What have they been saying today?

JULIE APPLEBY: You know, the Republicans in their official statements are coming out and saying that they’re not happy with this decision, but I do think many of them are breathing a sigh of relief because if the subsidies had gone away they would be in a position where lots of Americans would be losing these tax credits to help them purchase insurance. And they had not coalesced around a plan to fix that or to deal with that. So, I think in many cases they are a little relieved, but at the same time they are continuing to talk about how this is not a good law and it’s fundamentally broken.

MARY AGNES CAREY:  And so it sounds like their efforts to repeal will continue. How does this shape the 2016 presidential election, this decision today? What’s going to be the impact?

JULIE APPLEBY: You know that’s going to be very interesting. I think that Hillary Clinton will certainly make it a big part of her campaign to keep this law in place and say that the Democrats would support that. I think the Republicans are in a little bit more of a difficult situation because repealing is going to mean that you might be taking some things away from millions of Americans who already have it. So that’s a little bit more difficult of a message, but that will probably still be out there. I think this still will be a discussion in the election, but I think there are other issues that may be larger — like the economy.

MARY AGNES CAREY:  Stuart, can you take us through … are there other pending legal challenges to the Affordable Care Act?

STUART TAYLOR JR.: There are at least two, but only one of them, I think, is very serious in terms of any possibility of having much impact on the Act. That’s in a lawsuit brought by the House of Representatives as a body — which is highly unusual — against the administration. The first question is do they have legal standing — can the House of Representatives bring a lawsuit, which is an open question. But the claim they are making is not silly. The claim they are making is that hundreds of millions — hundreds of billions of these subsidies over the next 10 years were not appropriated by Congress; that the administration asked Congress to appropriate this money on a year-by-year basis, and Congress refused. And the Constitution says money can’t be spent by the government unless it’s appropriated by Congress. So that gives the administration a problem. The lawsuit’s being taken seriously by federal District Judge Rosemary Collyer, who sits here in the District of Columbia. But, it’s got a long way to go, and even if it’s successful, which I would bet against, it’s not going to cripple the Obamacare law the way a decision going against the president today would have crippled it.

MARY AGNES CAREY: All right, we’ll leave it there. Thank you so much, Stuart Taylor and Julie Appleby.

JULIE APPLEBY: Thank you.

STUART TAYLOR JR.: Thank you.

The post Why Did The Supreme Court Uphold The Health Law’s Subsidies? appeared first on Stuart Taylor, Jr..

But debate about the gun case, McDonald v. City of Chicago, has ranged far beyond guns. It has spawned an alliance of convenience among distinguished scholars in the progressive and conservative-libertarian camps.

Both have filed amicus briefs that take the gun-rights side while mainly seeking to expand other rights as well.

The detailed constitutional arguments show with unusual clarity why efforts to expand rights — whether favored by conservatives or liberals, or both — typically boil down to a bare-majority judicial faction using highly debatable theories to override democratic governance.

Many of the briefs in the gun case urge the Court to revive the 14th Amendment’s open-ended but long-moribund "privileges or immunities" clause and use it as a new fount of judicial power to strike down enactments imposed by majority rule. But the privileges-or-immunities alliance breaks down when its members are pressed on which laws should be struck down and which rights should be expanded or created.

Conservative libertarians who want the courts to reject economic regulations stress the considerable evidence that the authors of the privileges or immunities clause wanted to protect property and contract rights as well as gun rights.

Progressive scholars, on the other hand, see the same principles evolving over 142 years to mandate judicial protection of welfare rights — called "the new property" by some — as well as privacy, abortion, gay rights, assisted suicide, and other liberal favorites about which nobody was thinking when the 14th Amendment was adopted in 1868.

Both groups are armed with powerful historical evidence that the 1873 precedent that gutted the privileges or immunities clause, the Slaughterhouse Cases, misread the intent of the amendment’s framers. The precedent also paved the way for subsequent decisions that helped Southern whites subjugate freed slaves by, among other things, disarming them and leaving them defenseless against the Ku Klux Klan.

But the justices who spoke during the oral argument on McDonald — including those pushing to expand gun rights — were hostile to the privileges-or-immunities justification. Justice Antonin Scalia deprecated the clause as "the darling of the professoriate."

Why so dismissive?

Were the justices showing respect for a deeply rooted, 137-year-old precedent, as several argued? Well, sure. They always show respect for precedent — except when they don’t.

Were they showing judicial restraint, by passing up a chance to grab more power? Doubtful. None of the nine justices has shown much modesty in finding support for his or her own policy preferences in the Constitution.

Were they worried about what their ideological adversaries (and future adversaries) might do with an open-ended license to conjure up new "privileges or immunities" by refracting selected fragments of historical evidence through their own philosophies?

That’s my guess. The justices know that whatever clarity the text of this and other constitutional clauses may have once had has receded over many decades, as the clarity of a road sign recedes in the rearview mirror. They also know that the future content of a revived privileges or immunities clause would likely hinge on nothing more objective than the ideological leanings and policy preferences of future justices and the presidents who pick them.

You want the Court to comb through 19th-century history and find a mandate for unfettered capitalism? Vote Republican. You want it to impose welfare rights, with a heavy dose of judicial empathy? Vote Democratic. And hope for well-timed vacancies and long-lived justices who share your policy preferences.

Scalia, the great originalist, suggested that ancient and deeply rooted precedents trump original meaning.

Meanwhile, the notion of constitutional rights as immutable principles protecting our liberties from majoritarian tyranny morphs into rule by whichever faction happens to have a one-vote majority on the Supreme Court.

Shifting majorities have long advanced their own views incrementally by reading ambiguous historical evidence as supporting causes ranging from gun rights to gay rights, both of which have been put over the top by Justice Anthony Kennedy’s conservative leanings on the former and liberal leanings on the latter.

But none of the nine — except perhaps Justice Clarence Thomas, who was silent as usual during the argument in the gun case — seems prepared to risk giving a privileges-or-immunities blank check to whichever faction may control the Court in the future.

Some history: The 14th Amendment was adopted in 1868, after many months of congressional hearings, primarily to give freed slaves the rights of full citizens and give Congress the power to override oppressive state and local laws, especially in the South.

Here’s the critical language for purposes of the current debate: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; … "

Historical evidence strongly suggests that the first clause was intended to make applicable against the states and their localities all provisions of the first 10 amendments (the Bill of Rights) — which had previously limited only the federal government — and perhaps also an unspecified number of other, unenumerated rights.

But the Supreme Court virtually nullified this broad language in the 1873 Slaughterhouse Cases by narrowing it to a few "privileges" and "immunities" rooted in federal citizenship, such as the right to be protected while at sea.

Subsequent decisions using similar logic helped facilitate the subjugation of blacks in the South for most of the next century. These rulings also help explain why most of the Bill of Rights, including the First Amendment, was not applied to state or local governments until the 1920s and thereafter.

By then, the Supreme Court had found another way to apply provisions of the Bill of Rights — almost all of them, eventually — against the states, along with other judicially recognized (or, critics say, judicially invented) rights including family privacy, contraception, and abortion. The Court construed the 14th Amendment’s due process clause as "selectively incorporating" against the states those rights that the justices deemed fundamental to American liberty.

This "substantive due process" doctrine has been assailed by many conservative critics — especially since Roe v. Wade — and some liberals as a judicial power grab inconsistent with the language of the due process clause, which by its terms guarantees only procedural fairness.

But advocates of expansive judicial power to create new rights — liberals and conservative libertarians alike — have responded with strong evidence that the long-buried privileges or immunities clause was originally understood to give courts even broader powers than the due process clause.

Despite this evidence, Scalia, the great originalist, suggested that ancient and deeply rooted precedents trump original meaning. "Even I have acquiesced" in the legitimacy of substantive due process, he said, even though "I think it’s wrong."

A deeper question, in my view, is this: Why should the words of a few congressional leaders more than 140 years ago — as seen through the diverse, distorting lenses of current Supreme Court majorities — trump the views of elected majorities today?

As Justice Stephen Breyer asked, why should equivocal evidence of what was intended in 1868 wipe out a handgun ban thought by Chicago’s elected leaders to have saved hundreds of 21st-century lives?

These fundamental questions about the 14th Amendment have come to the fore because of a big 5-4 decision in 2008. The Court held for the first time that the Second Amendment protects a right to "keep and bear arms" not only for service in now-defunct state militias — as had long been widely assumed — but also for self-defense against intruders and other, so-far-unspecified, individual uses.

The 2008 decision struck down the District of Columbia’s broad handgun ban, while noting that other gun controls imposed by the federal government and its enclaves would be upheld if deemed reasonable by the courts. It left open the question before the Court now: Did the 14th Amendment make the same (or similar) gun rights applicable against state and local regulation?

I could see no clear winner in the 2008 decision’s learned but clashing interpretations of the Second Amendment. "It seems almost perverse," I wrote then, "to be assessing what gun controls to allow based not on examining how best to save lives but on seeking to read the minds of the men who ratified the Bill of Rights well over 200 years ago."

It’s almost as hard to read the minds of those who wrote the 14th Amendment 142 years ago. They do seem to have intended to protect the rights of freed slaves and others to have guns to defend themselves against KKK terror. But the rest, or most of it, is in the eye of the beholder.

This article appeared in the Saturday, March 6, 2010 edition of National Journal.

The post Judicial Factions And The Constitution appeared first on Stuart Taylor, Jr..

These words — which echo criticism of the Supreme Court’s conservatives by liberal scholars and Democratic senators — packed an extra wallop because they came from a leading conservative commentator, Ramesh Ponnuru of National Review.

His June 23 New York Times op-ed clashed with efforts by other conservatives to depict Sotomayor as a liberal activist and themselves as the champions of judicial restraint, provoking a lively exchange among legal experts on National Review Online.

Some reproached Ponnuru for what Roger Clegg of the Center for Equal Opportunity called "an ill-timed, ill-argued" piece implying that white people do not have the same rights as blacks to the equal protection of the laws. Wendy Long of the conservative Judicial Confirmation Network wondered whether Ponnuru had been "taken hostage by some NYT editorial page terrorists who waterboarded him until he agreed to sign that op-ed piece."

Other conservatives, however, concurred in whole or in part with Ponnuru’s view that racial preferences are not barred by the Constitution even though "unwise and immoral" as a policy matter. And Ponnuru was far from the first prominent conservative to echo liberal claims that the conservative justices are guilty of judicial activism.

By this the critics mean the same kind of usurpation of the elected branches’ powers that conservatives have long attributed to liberals: invoking far-fetched or highly debatable interpretations of the Constitution to impose the unelected justices’ personal political views on the nation. The focus of this debate in recent years has been on conservative efforts to strike down gun control laws, campaign finance regulations and racial affirmative action preferences.

Consider a leading conservative judge’s panning of the 5-4 decision in June 2008 striking down a strict District of Columbia gun control law, when the majority held for the first time that the hopelessly ambiguous, two-century-old Second Amendment protected a broad individual right to "keep and bear arms."

The judge, J. Harvie Wilkinson III, of the U.S. Court of Appeals for the 4th Circuit, argued in a University of Virginia Law Review article that the court’s conservatives had descended almost as far into a "game of dueling activist Constitutions" as did liberals in Roe v. Wade.

Like Roe, wrote Wilkinson, the gun decision "represents an act of judicial aggrandizement: a transfer of power to judges from the political branches of government — and thus, ultimately, from the people themselves." This, he added, could not be justified because the majority’s interpretation was no more persuasive than the four dissenters’ claim that the Second Amendment was intended to protect only the keeping of arms for service in a state militia. "The tie," said Wilkinson, "should go to the side of deference to the democratic process."

Another conservative-leaning jurist went even further, asserting that liberals had been right about the Second Amendment. Writing in The New Republic, Judge Richard Posner of the Court of Appeals for the Seventh Circuit whacked the "faux originalism" of Justice Antonin Scalia’s majority opinion in the gun case as amounting to "a freewheeling discretion strongly flavored with ideology."

It’s possible, of course, that Scalia was right and Wilkinson and Posner were wrong. But such fierce disagreements among conservative legal luminaries dramatize the central problem of constitutional interpretation in today’s world: What justification is there for unelected, life-tenured justices to strike down democratic choices based on highly debatable interpretations of ambiguously worded, indeterminate constitutional provisions?

Consider also the conservative justices’ efforts to strike down or emasculate major provisions of the 2002 McCain-Feingold campaign finance law. Many court-watchers think that they are poised to rule in a pending case, for the first time in history, that the First Amendment guarantees to corporations (as well as to individuals and ideological groups) a right to spend unlimited amounts on broadcast ads supporting or opposing federal candidates.

Such a decision would invite an avalanche of more-than-plausible charges of conservative judicial activism. In part for this reason, I hope to see a statesmanlike compromise emerge, as detailed in my July 11 column.

The judicial activism debate is especially hot in race cases, which in my view will produce the court’s most important decisions in the coming years — together with the national-security cases that conservatives see as a fount of activist encroachments on the powers of the president and Congress.

Countering Ponnuru’s apostasy, Clegg and some other conservative scholars say the 14th Amendment guarantee of "equal protection of the laws" clearly contains no exception for racial discrimination "of a politically correct variety." Thus, wrote Clegg in National Review Online, governmental use of affirmative action preferences in employment and college admissions is as unconstitutional as discriminating against blacks.

Others were more equivocal: "The historical evidence that the 14th Amendment mandated colorblindness is not as weak as Ramesh believes it is," wrote Andrew McCarthy, of the Foundation for Defense of Democracies. "To be sure, it is not overwhelming nor does it disprove all contrary claims, but I do think it is adequate to support a credible originalist rationale for colorblindness."

McCarthy added a more general cautionary note: "Judges… are notorious for creating (or ‘discovering’) new constitutional rights as necessary to advance the leftist agenda. Why not a little substantive due process for our side, too? Except, the point is that we don’t want politically insulated judges imposing any agendas. We just want them to interpret the law as it exists. If our law is out of sync with our preferences… there’s a legitimate way to remedy the problem: Win the public debate and pass a law."

Meanwhile, liberal scholars including Doug Kendall, president of the Constitutional Accountability Center, stress the evidence that the drafters explicitly vested the power to enforce the 14th and 15th Amendments in Congress, not the Supreme Court, which had helped bring on the Civil War by holding, in the infamous 1857 Dred Scott decision, that black Americans were inferior beings with no rights.

Today’s conservative justices have done nothing that approaches the audacity of Roe v. Wade — let alone Dred Scott — as judicial legislation. And there have been signs that Chief Justice John Roberts may be seeking to steer his colleagues toward judicious compromises and constructive dialogue with Congress on issues such as the constitutionality of a key Voting Rights Act provision. (See my June 27 column.)

But it’s fair to fault as activist Justices Scalia, Clarence Thomas and other conservatives who seek to override democratic choices by pressing aggressive interpretations of highly debatable constitutional provisions.

It’s also fair to fault liberal critics of conservative judicial activism for unprincipled selectivity in their respect for precedent. Liberals see the fact that Roe has been on the books for 36 years and repeatedly reaffirmed as a strong argument against overruling it. I agree. But doesn’t the same logic apply to the succession of major precedents over the past three decades ruling that governmental racial preferences and racial gerrymandering are constitutionally suspect?

For that matter, how many of today’s liberals acknowledge — as almost all constitutional scholars did initially — that Roe is made-up constitutional law that can be maintained only on the basis of respect for precedent?

Indeed, the debate among conservatives can be seen not only as showing that judicial activism infects the right, but also as evincing a healthy candor and intellectual vitality that is not always apparent on the left.

The post Sotomayor Sparks Debate Among Conservatives Over Originalism – The Ninth Justice appeared first on Stuart Taylor, Jr..

The most common explanation for why judicial confirmation hearings have become such empty rituals is that the Senate’s rejection of Judge Robert Bork in 1987 — after the conservative Reagan nominee had answered dozens of questions about his "originalist" judicial philosophy — proved that candor could be fatal for any nominee.

Since the Bork nomination, "the goal for judicial nominees has been to skate through by saying as little as possible as politely as possible," the New York Times observed in an editorial Tuesday.

There is much truth in this. But Bork’s fate did not prove that nominees have to hide or misrepresent their judicial philosophies in order to get confirmed.

For one thing, Bork probably would have been defeated even if he had ducked the questions about his judicial philosophy, as subsequent nominees have done.

For another, Sotomayor very probably would have been confirmed by a wide margin — albeit with a bit more difficulty — even if she had been far more forthcoming about her views of the law, and less determined to deny the apparent meaning of her controversial past statements.

It would be improper for judicial nominees to answer senators’ questions about specific issues that might come before them, for the reasons that I discussed on this blog. But there is no ethical requirement that nominees duck general questions about judicial philosophy. And it is affirmatively unethical to give deliberately deceptive answers.

Before Bork, most 20th-century nominees were not pressed as hard on their judicial philosophies and found it fairly easy to duck any uncongenial questions. Indeed, Antonin Scalia was confirmed 98-0 in 1986, amid much celebration of his role as the first Italian justice, despite his refusal to say even whether he agreed with the 1803 decision in Marbury v. Madison, the foundation stone of judicial review of executive and legislative actions.

As Bork himself has often said, he had little choice but to explain his long history of denouncing decades of Supreme Court precedents. Indeed, in speeches shortly before his nomination, he had called for an originalist wave that would "sweep the elegant, erudite, pretentious and toxic detritus of nonoriginalism out to sea.”

Many of the precedents Bork denounced as unjustified by anything in the text or original intent of the Constitution — such as the 1965 decision in Griswold v. Connecticut, protecting a right to use contraception — were quite popular with the public. Nor did most voters want the court to overturn Roe v. Wade. And Bork seemed likely to provide the fifth vote to do just that. Indeed, he told me in a recent interview, published in Newsweek, that he would have overruled Roe.

If Bork had no-commented questions about the major overhaul of constitutional law that his many speeches and articles seemed to seek, he would have been defined by his liberal critics. And they portrayed him not merely as a force for radical change — a plausible claim that might alone have derailed him in a Senate controlled by Democrats — but also as a kind of monster.

Sen. Edward Kennedy, D-Mass., famously greeted Bork’s nomination with these words: "Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, [and] writers and artists could be censored at the whim of the government."

Bork was also pounded by liberal groups in misleading TV ads and by Democratic senators who used ludicrous distortions of his decisions to brand him a "a gargoyle, a sexist, a racist, an invader of the bedroom, a sterilizer of women," as Sen. Alan Simpson, R-Wyo., a Bork supporter, later complained.

Judge Sotomayor’s record was also distorted by some critics — notably by misportraying as "judicial activism" a speech in which she made a perfectly reasonable observation that "policy is made" by courts of appeals when they set precedents. But the attacks on her were not remotely like the wholesale demonization of Bork.

To be sure, the Bork hearing was also "a fascinating tutorial for the American people on the foundations of our constitutional system," featuring high-toned debates among some of the nation’s most eminent constitutional theorists, as civil rights lawyer William L. Taylor recently wrote in the National Law Journal.

But the testimony by such luminaries that Bork would upend constitutional law if confirmed put all the more pressure on him to explain himself.

Explain he did. But while seeking to downplay his more radical past statements — by, for example, emphasizing the importance of respecting precedent far more than he had done in his speeches — Bork by and large sought to explain and justify what he had meant, in part by stressing what he saw as the limited role the courts should play in democratic governance.

Judge Sotomayor, on the other hand, arguably went further than any recent nominee in denying the apparent meaning of her own more controversial prior statements. That’s why some liberal legal experts, such as Louis Michael Seidman of Georgetown Law School, have joined conservatives in suggesting that portions of her testimony seemed deliberately deceptive.

It’s instructive to compare Judge Sotomayor’s testimony with that in 2005 by John Roberts, who was himself accused of being disingenuous, or worse, by Senate Democrats during the Sotomayor hearing and, earlier, by Senate Majority Leader Harry Reid. (Reid did not identify a single false statement.)

Roberts somewhat misleadingly likened the judicial role to that of an umpire calling balls and strikes. Similarly, Sotomayor provided a misleadingly simplistic description of the unavoidably subjective decisions that judges and justices must make, when she made assertions like "as a judge, I don’t make law."

Roberts also suggested implausibly that controversial memos he had written many years before as a young Reagan Justice Department lawyer did not necessarily represent his personal views even when he wrote them. Similarly, Sotomayor suggested implausibly that she had not necessarily agreed with the many aggressively liberal lawsuits brought by the Puerto Rican Legal Defense and Education Fund when she was on the board of directors and its litigation committee many years ago.

But Sotomayor went beyond anything that Roberts had done when she disavowed the apparent meaning of the many controversial assertions in her own "wise Latina" speeches, and in some other speeches. She was also stunningly blunt in rejecting President Obama’s oft-stated view that "empathy" is the critical ingredient for a good justice.

No nominee has to do that. Least of all the nominee of a popular president whose party enjoys a 60-40 majority in the Senate.

The post The Lessons Of Bork – The Ninth Justice appeared first on Stuart Taylor, Jr..

The decision, Parker v. District of Columbia, is right and should be affirmed. And contrary to a widespread myth, confirmation by the justices that Americans have an individual right to keep and bear arms would not invalidate reasonable gun control laws.

To put my own biases on the table: I don’t hunt or own a gun. I support reasonable gun controls but consider the D.C. law unreasonable. I had never fired a pistol until a recent vacation trail ride, when I missed a large target with all six shots. This amused my 19-year-old daughter, who scored five out of six.

Now to the Second Amendment. It states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

For decades, most courts and legal scholars have treated this as essentially a dead letter. Their reasoning goes like this: The amendment’s first clause means that its sole purpose was to guarantee each state a collective right to have self-armed private citizens available as a military force-in-waiting (militia) to fight off federal encroachments; therefore, the second clause protects no individual right; state militias long ago became defunct; so the Second Amendment is an inoperative historical anachronism.

Judge Silberman shreds this conventional wisdom in a 58-page opinion joined by Judge Thomas Griffith. In doing so Silberman builds on the work of a few leading scholars of diverse political persuasions.

"At first blush," Silberman begins, "it seems passing strange that the able lawyers and statesmen in the First Congress (including James Madison) would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as, ‘Congress shall make no law disarming the state militias’ or ‘States have a right to a well-regulated militia.’ "

In addition, the opinion points out, the Framers vested in "the people" the rights protected by the First, Fourth, and Ninth Amendments as well as the Second. Nobody contends that those other provisions protect no individual rights; indeed, "the Bill of Rights was almost entirely a declaration of individual rights," Silberman says. And the Supreme Court said in 1990 that "the people" means the same thing in the Second Amendment as it does in the First, Fourth, and Ninth.

The Founders’ language strikes another "mortal blow to the collective-right theory" in explicitly guaranteeing a right to "keep" arms, as well as to "bear" them, Silberman asserts: " ‘Keep’ is a straightforward term that implies ownership or possession of a functioning weapon by an individual for private use."

And while no other Bill of Rights provision includes a preamble clause stating its civic purpose, many state constitutions of that era did begin with prefatory clauses stating "a principle of good government that was narrower than the operative language used to achieve it," Silberman explains.

Similarly, in the Second Amendment context, "preservation of the militia was the right’s most salient political benefit — and thus most appropriate to express in a political document" that was designed to assure "Antifederalist opponents of the 1787 Constitution [that] the militia system would remain robust."

Silberman’s opinion makes a convincing case that the Founders saw the Second Amendment as codifying a natural right to "private use of arms for activities such as hunting and self-defense [against] either private lawlessness or the depredations of a tyrannical government."

Critics, including dissenting D.C. Circuit Judge Karen LeCraft Henderson, have accused Silberman of flouting a 1939 Supreme Court precedent, U.S. v. Miller, which collective-right theorists have long seen as holding, at least implicitly, that there is no individual right to keep or bear arms. But if anything, Miller cuts the other way.

In that case, the justices upheld a federal ban on interstate transportation of short-barreled shotguns. Reasoning that the Second Amendment must be "interpreted and applied" in light of its "obvious purpose" of fostering a "well regulated Militia," the Court held that a sawed-off shotgun was not among the "Arms" appropriate for militia service.

But the Miller Court did not say that there was no individual gun right at all, as the government had urged in its brief. Nor did it note that the two defendants were not affiliated with any state militia. Instead, the justices chose to distinguish sawed-off shotguns from other guns. This seemed to imply that the Second Amendment does protect an individual right to keep and bear guns more akin to the rifles, muskets, and pistols commonly used in (and required by Congress for) late-18th-century militia service.

These were the very kinds of guns that the D.C. law banned altogether (handguns) or allowed only if unloaded and inoperable (rifles and shotguns). Therefore, Judge Silberman ruled, the D.C. law clearly violated the Second Amendment.

At the same time, Silberman said that the Second Amendment right is "subject to the same sort of reasonable restrictions" as are other constitutional rights. Indeed, the Supreme Court itself stated in 1897, "The right of the people to keep and bear arms … is not infringed by laws prohibiting the carrying of concealed weapons." And the Silberman opinion suggests that other reasonable regulations to protect public safety would also be valid, such as requiring registration of guns, conditioning gun ownership on proficiency testing, and prohibiting convicted felons from having guns.

Of course, those who favor a broad federal ban on private possession of pistols, or of all guns, will be thwarted if the Parker decision is allowed to stand by the full, 10-judge D.C. Circuit (which rarely reviews the decisions of its three-judge panels) and affirmed by the Supreme Court.

But, in any event, such a broad federal ban is politically impossible for the foreseeable future. As for state gun control legislation, Parker does not say, and the Supreme Court has not resolved, whether the Second Amendment applies only to the federal government (which ultimately controls the District of Columbia) or to the states, as well.

A question lingers: If the logic underlying the individual-right theory is as compelling as I think it is, why has it for so long been a minority view, rejected by nine federal appeals courts and adopted by only two?

One answer was suggested in a 2003 dissent by Judge Alex Kozinski, of Pasadena, Calif., from a collective-right ruling by the U.S. Court of Appeals for the 9th Circuit:

"Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that ‘speech, or … the press’ also means the Internet [for First Amendment purposes] and that ‘persons, houses, papers, and effects’ also means public telephone booths [for Fourth Amendment purposes]. When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases…. But … when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

"It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us…. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences."

My March 3 column erred in stating that Justice Sandra Day O’Connor was alone in joining both the 2003 decision to strike down the racial preferences in admissions at the University of Michigan’s undergraduate school and the related 5-4 decision to uphold those at Michigan’s law school. In fact, Justice Stephen Breyer made the same distinction, and the vote in the first case was 6-3, not 5-4. I regret the errors.

The post Opening Argument – A Right to Keep and Bear Arms? appeared first on Stuart Taylor, Jr..

The decision, Parker v. District of Columbia, is right and should be affirmed. And contrary to a widespread myth, confirmation by the justices that Americans have an individual right to keep and bear arms would not invalidate reasonable gun control laws.

To put my own biases on the table: I don’t hunt or own a gun. I support reasonable gun controls but consider the D.C. law unreasonable. I had never fired a pistol until a recent vacation trail ride, when I missed a large target with all six shots. This amused my 19-year-old daughter, who scored five out of six.

Now to the Second Amendment. It states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

For decades, most courts and legal scholars have treated this as essentially a dead letter. Their reasoning goes like this: The amendment’s first clause means that its sole purpose was to guarantee each state a collective right to have self-armed private citizens available as a military force-in-waiting (militia) to fight off federal encroachments; therefore, the second clause protects no individual right; state militias long ago became defunct; so the Second Amendment is an inoperative historical anachronism.

Judge Silberman shreds this conventional wisdom in a 58-page opinion joined by Judge Thomas Griffith. In doing so Silberman builds on the work of a few leading scholars of diverse political persuasions.

"At first blush," Silberman begins, "it seems passing strange that the able lawyers and statesmen in the First Congress (including James Madison) would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as, ‘Congress shall make no law disarming the state militias’ or ‘States have a right to a well-regulated militia.’ "

In addition, the opinion points out, the Framers vested in "the people" the rights protected by the First, Fourth, and Ninth Amendments as well as the Second. Nobody contends that those other provisions protect no individual rights; indeed, "the Bill of Rights was almost entirely a declaration of individual rights," Silberman says. And the Supreme Court said in 1990 that "the people" means the same thing in the Second Amendment as it does in the First, Fourth, and Ninth.

The Founders’ language strikes another "mortal blow to the collective-right theory" in explicitly guaranteeing a right to "keep" arms, as well as to "bear" them, Silberman asserts: " ‘Keep’ is a straightforward term that implies ownership or possession of a functioning weapon by an individual for private use."

And while no other Bill of Rights provision includes a preamble clause stating its civic purpose, many state constitutions of that era did begin with prefatory clauses stating "a principle of good government that was narrower than the operative language used to achieve it," Silberman explains.

Similarly, in the Second Amendment context, "preservation of the militia was the right’s most salient political benefit—and thus most appropriate to express in a political document" that was designed to assure "Antifederalist opponents of the 1787 Constitution [that] the militia system would remain robust."

Silberman’s opinion makes a convincing case that the Founders saw the Second Amendment as codifying a natural right to "private use of arms for activities such as hunting and self-defense [against] either private lawlessness or the depredations of a tyrannical government."

Critics, including dissenting D.C. Circuit Judge Karen LeCraft Henderson, have accused Silberman of flouting a 1939 Supreme Court precedent, U.S. v. Miller, which collective-right theorists have long seen as holding, at least implicitly, that there is no individual right to keep or bear arms. But if anything, Miller cuts the other way.

In that case, the justices upheld a federal ban on interstate transportation of short-barreled shotguns. Reasoning that the Second Amendment must be "interpreted and applied" in light of its "obvious purpose" of fostering a "well regulated Militia," the Court held that a sawed-off shotgun was not among the "Arms" appropriate for militia service.

But the Miller Court did not say that there was no individual gun right at all, as the government had urged in its brief. Nor did it note that the two defendants were not affiliated with any state militia. Instead, the justices chose to distinguish sawed-off shotguns from other guns. This seemed to imply that the Second Amendment does protect an individual right to keep and bear guns more akin to the rifles, muskets, and pistols commonly used in (and required by Congress for) late-18th-century militia service.

These were the very kinds of guns that the D.C. law banned altogether (handguns) or allowed only if unloaded and inoperable (rifles and shotguns). Therefore, Judge Silberman ruled, the D.C. law clearly violated the Second Amendment.

At the same time, Silberman said that the Second Amendment right is "subject to the same sort of reasonable restrictions" as are other constitutional rights. Indeed, the Supreme Court itself stated in 1897, "The right of the people to keep and bear arms … is not infringed by laws prohibiting the carrying of concealed weapons." And the Silberman opinion suggests that other reasonable regulations to protect public safety would also be valid, such as requiring registration of guns, conditioning gun ownership on proficiency testing, and prohibiting convicted felons from having guns.

Of course, those who favor a broad federal ban on private possession of pistols, or of all guns, will be thwarted if the Parker decision is allowed to stand by the full, 10-judge D.C. Circuit (which rarely reviews the decisions of its three-judge panels) and affirmed by the Supreme Court.

But, in any event, such a broad federal ban is politically impossible for the foreseeable future. As for state gun control legislation, Parker does not say, and the Supreme Court has not resolved, whether the Second Amendment applies only to the federal government (which ultimately controls the District of Columbia) or to the states, as well.

A question lingers: If the logic underlying the individual-right theory is as compelling as I think it is, why has it for so long been a minority view, rejected by nine federal appeals courts and adopted by only two?

One answer was suggested in a 2003 dissent by Judge Alex Kozinski, of Pasadena, Calif., from a collective-right ruling by the U.S. Court of Appeals for the 9th Circuit:

"Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that ‘speech, or … the press’ also means the Internet [for First Amendment purposes] and that ‘persons, houses, papers, and effects’ also means public telephone booths [for Fourth Amendment purposes]. When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases…. But … when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

"It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us…. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences."

My March 6 column erred in stating that Justice Sandra Day O’Connor was alone in joining both the 2003 decision to strike down the racial preferences in admissions at the University of Michigan’s undergraduate school and the related 5-4 decision to uphold those at Michigan’s law school. In fact, Justice Stephen Breyer made the same distinction, and the vote in the first case was 6-3, not 5-4. I regret the errors.

The post A Right to Keep and Bear Arms? appeared first on Stuart Taylor, Jr..