A strongly originalist opinion from Judge Patrick Bumatay (9th Circuit, San Diego), dissenting from the court's en banc ruling in Duncan v. Bonta, filed last week. The issue was whether California's ban on "large-capacity" (more than 10 round) magazines violates the Second Amendment; the majority, applying intermediate scrutiny, found it did not. From Judge Bumatay's dissent (footnotes and some citations omitted):
Contrary to the majority’s reiteration of a tiers-of scrutiny, sliding scale approach, Heller commands that we interpret the scope of the Second Amendment right in light of its text, history, and tradition. That’s because constitutional rights “are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” Heller, 554 U.S. at 634–35.
Heller announced a straightforward analytical framework that we are not free to ignore …
Rather than rely on our own sense of what is the right balance of freedom and government restraint, then, the Court instructs lower courts to follow the meaning of the People’s law as understood at the time it was enacted. Such an approach is more determinate and “much less subjective” because “it depends upon a body of evidence susceptible of reasoned analysis rather than a variety of vague ethicopolitical First Principles whose combined conclusion can be found to point in any direction the judges favor.” McDonald, 561 U.S. at 804 (Scalia, J., concurring).
Far from obscuring the decision-making process, as Judge Berzon’s concurrence contends, applying the text, history, and tradition approach forces judges to put their cards on the table. It sets out the ground rules under which constitutional decision-making is made. It ensures that only proper sources, datapoints, and considerations are used to determine the scope of the Second Amendment right.
Adopting this approach necessarily constrains judges to the text and the historical record rather than to their own policy preferences. To be sure, no mode of judicial decisionmaking is perfect or can eliminate discretionary calls, but relying on a historical methodology provides discernible rules that “hedge[]” discretion and expose the “misuse of these rules by a crafty or willful judge” as “an abuse of power.” Even if the method requires complicated historical research or interpretative choices, the text, history, and tradition approach offers a common ground to criticize a judge who glosses over the text or misreads history or tradition. Otherwise, we are left with the majority’s approach which all too often allows judges to simply pick the policies they like with no clear guardrails.
Moreover, contrary to Judge Berzon’s portrayal, the fact that “[w]ords do not have inherent meaning” is a feature—not a bug—of Heller’s text-based approach. We agree that the meaning of words may evolve over time. But enumerated rights do not. The People ratified the Second Amendment in 1791 to protect an enduring right—not one subject to the whims of future judges or the evolution of the words used to articulate the right. This view is not radical. Chief Justice Marshall expressed a similar sentiment in 1827: The Constitution’s words, he said, “are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them.” Ogden v. Saunders, 25 U.S. 213, 332 (1827) (Marshall, C.J., dissenting).
Without hewing to the meaning of the right as understood at the time of enactment, we alter the rights chosen by the People and risk injecting our own policy judgments into the right’s meaning. As for Judge Berzon’s concern that the meaning of constitutional text may be “lost to the passage of time,” we have been interpreting language going back millennia. As Justice Gorsuch observed, “[j]ust ask any English professor who teaches Shakespeare or Beowulf.” Neil M. Gorsuch, A Republic, If You Can Keep It 112 (2020). Simply put, original meaning gives enduring meaning to the Constitution and preserves our rights as they were enshrined at the time of adoption.
The criticisms of history and tradition playing a role in constitutional interpretation fall equally flat. As Heller shows, by looking to tradition and history, we see how constitutional text came to be and how the People closest to its ratification understood and practiced the right. And by examining a firearm’s history of common usage, we come to see the fundamental nature of the right and illuminate how a modern governmental regulation may infringe on a longstanding protection.
Tradition and history may also allow us to take interpretive options off the table: they might say that two possible “answers” to a legal question are permissible, which “is worth something” because courts should not “impose a third possibility.” So, tradition and history inform the meaning of constitutional rights in ways that no tier-of-scrutiny can. For sure, this approach can be difficult. Some of Judge Berzon’s process critiques are not all wrong. See Berzon Concurrence 57–58 (noting that the “volume of available historical evidence . . . will vary enormously and may often be either vast or quite sparse”). Looking to text, history, and tradition to uncover meaning takes time and careful analysis. And interpreting the meaning of documents and events from long-ago is much harder than simply consulting our own policy views. But it is the high price our Constitution demands from judges who swear an oath to apply it faithfully. Indeed, the same criticisms leveled by Judge Berzon apply with greater force to the tiers-of-scrutiny approach because there is no historical backdrop to cabin a judge’s discretion. While judges may not be historians, neither are we economists, statisticians, criminologists, psychologists, doctors, or actuarialists. But that is exactly the type of expertise judges use to render judgment under the majority’s approach. While the text, history and tradition methodology may have shortcomings, it is better than the majority’s approach. Their judicial black box leaves critics grasping to understand the court’s method for balancing policy interests. At the very least, text, history, and tradition has nothing to hide.
(With citations to originalist scholars William Baude, Lawrence Solum, Ilan Wurman, Gary Lawson, Guy Seidman and Stephen Sachs.)
Judge Bumatay goes on to find the large-capacity magazine ban unconstitutional, applying the text, history and tradition approach. In particular, "[l]ooking at the historical record, large-capacity magazines are clear modern-day equivalents of arms in common use by the incorporation of the Second Amendment and are, thus, entitled to constitutional protection."
(Via How Appealing.)
Posted at 6:25 AM