{"id":5680,"date":"2009-06-16T14:13:46","date_gmt":"2009-06-16T19:13:46","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=5680"},"modified":"2009-06-16T19:25:03","modified_gmt":"2009-06-17T00:25:03","slug":"bork-reconsidered-part-ii","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/06\/bork-reconsidered-part-ii\/","title":{"rendered":"Bork Reconsidered, Part II"},"content":{"rendered":"

\"3601327017_cf29db46c31\"In an earlier post<\/a>, I compared the nominations of Judge Sonia Sotomayor and Judge Robert Bork in order to make some observations about the role of stare decisis<\/em> and its relationship to judicial activism.\u00a0 <\/span>My argument was that a respect for the wisdom of past practice and a preference for incremental change will allow Judge Sotomayor to avoid being tagged as a radical jurist unworthy of confirmation.\u00a0 <\/span>In contrast, Judge Bork had a record that left him vulnerable to such a charge (even if unwarranted).\u00a0 <\/span>Also worthy of mention here is Professor David Papke\u2019s earlier recollection <\/a>of Professor Bork in the classroom.<\/p>\n

In the discussion that follows, I will continue to use the Sotomayor\/ Bork comparison in order to draw out the manner in which the Supreme Court\u2019s interpretation of the Second Amendment threatens to undermine the very philosophy of constitutional interpretation that is most closely associated with Judge Bork.<\/p>\n

Opponents of the Sotomayor nomination have seized on the Second Amendment as an issue with which to attack her.\u00a0 <\/span>Portraying her as an opponent of the constitutional right to own firearms is a strategy that will certainly succeed in energizing the base of the Republican Party.\u00a0 <\/span>If she rises to the bait during her confirmation hearings, and expresses any skepticism over the correctness of the District of Columbia v. Heller <\/a>case \u2013 striking down the DC handgun ban– then efforts to paint her as a liberal jurist who is out of the mainstream might gain some traction with the public.<\/p>\n

Certainly there are grounds to criticize the textualist reading of the Second Amendment endorsed by the Heller<\/em> majority.\u00a0 <\/span>In the course of finding that the Constitution prohibits the federal government from banning handguns, Justice Scalia applies the modern, colloquial usage of the phrases \u201cbear arms\u201d and \u201ckeep arms\u201d in order to conclude that the text of the Second Amendment guarantees a right to own handguns for personal use.\u00a0 <\/span>He also chooses to interpret the operative clause of the Second Amendment independently of the prefatory clause in the first instance, and only later reintroduces the prefatory clause into the analysis in order to determine whether it forecloses his chosen interpretation of the rest of the Amendment.<\/p>\n

Although Justice Scalia denies it, the meaning of the phrase \u201cbear arms\u201d did possess a distinctive meaning in the 18th<\/sup> century that differs from the way in which the phrase is commonly used today.\u00a0 <\/span>The phrase was applied to the military use of weaponry and was derived from its Latin roots (arma ferre<\/em>) describing the \u201cequipment of war.\u201d\u00a0 <\/span>Justice Scalia\u2019s method of interpreting the text also ignores the Style Periodique used by the drafters of many formal 18th<\/sup> century documents (i.e., Thomas Jefferson in the Declaration of Independence), whereby a series of linked propositions gradually reveals the full meaning of a sentence at its conclusion.\u00a0 <\/span>In other words, it is likely that the meaning that Justice Scalia ascribes to the words of the text was not in fact the original intent of the drafters of the Second Amendment.\u00a0 <\/span>The Heller<\/em> opinion is strong evidence that textualism is not a reliable technique for divining original intent.<\/p>\n

Indeed, more than twenty years ago Judge Bork asserted that the originalist interpretation of the Second Amendment was limited to the protection of formal state militias as a counterweight against a standing federal army.\u00a0 <\/span>Many forget that the National Rifle Association was critical of Judge Bork during his confirmation hearings for this very reason.\u00a0 <\/span>I do not know whether Judge Bork has subsequently modified his views on the matter.\u00a0 <\/span>My assumption is that Judge Sotomayor is wise enough to avoid any direct criticism of the Heller<\/em> opinion during her confirmation hearings.<\/p>\n

However, Judge Sotomayor will undoubtedly be questioned closely about her ruling in the Second Circuit case of Maloney v. Cuomo<\/a>.\u00a0 <\/span>The issue there was whether the Heller <\/em>opinion guaranteeing an individual right of gun possession applies to state and local governments as well as to the federal government.\u00a0 <\/span>In other words, does the 14th<\/sup> Amendment \u201cincorporate\u201d the Second Amendment and apply it to the states despite the fact that the original Bill of Rights only applied to the federal government?\u00a0 <\/span>In Maloney<\/em>, Judge Sotomayor sat on a three judge panel that refused to read the Heller<\/em> decision to in any way limit state gun control laws.<\/p>\n

Opponents of Judge Sotomayor would like to use this ruling as evidence that she is hostile towards gun rights.\u00a0 <\/span>Unfortunately, the underlying premise of such an attack is that the Heller<\/em> opinion gives circuit court judges carte blanche<\/em> to overturn hundreds of years of Supreme Court precedent.\u00a0 <\/span>A long line of Supreme Court cases rejects the wholesale incorporation of the Bill of Rights against the states via the 14th<\/sup> Amendment (The Slaughter House cases<\/em>) and also upholds state laws restricting gun ownership (Cruikshank<\/em>, Presser<\/em> and Miller<\/em>).\u00a0 <\/span>As Judge Easterbrook of the Seventh Circuit noted — in the course of oral arguments in a case where he ultimately adopted the same reasoning as the Maloney<\/em> panel– the decision to depart from such established precedent is \u201cabove [a circuit judge\u2019s] pay level.\u201d\u00a0 <\/span>The issue of the incorporation of the Second Amendment against the states may come before the Supreme Court as early as next year.<\/p>\n

Interestingly, the Robert Bork of twenty years ago might well agree with the reasoning of the Maloney<\/em> decision.\u00a0 <\/span>As a law professor, Judge Bork wrote in opposition to the application of the Bill of Rights to the states, and he was very critical of the manner in which the Supreme Court \u201cincorporated\u201d the Bill of Rights through the Fourteenth Amendment\u2019s right of due process.\u00a0 <\/span>In fact, his originalist theory of constitutional interpretation appears incompatible with both the Heller<\/em> majority\u2019s modern reading of a time-specific phrase and with the push to read the Second Amendment as a limit on state power.<\/p>\n

As a Supreme Court Justice, Judge Sotomayor will not be shackled by precedent to the same extent as a circuit judge.\u00a0 <\/span>Therefore, she will face pointed questioning on her views of the Second Amendment and the incorporation debate.\u00a0 <\/span>My prediction is that if she is confirmed she will confound her critics and vote to apply the rights recognized in the Heller<\/em> decision against state and local governments.<\/p>\n

After all, the Heller<\/em> opinion interprets the Constitution in a way that every liberal should love.\u00a0 <\/span>The case can be read to support the proposition that the individual rights expressed in the Constitution should be interpreted expansively in order to reflect current realities.\u00a0 <\/span>Nowhere did the Heller<\/em> majority pause to consider whether the individual Second Amendment right that it found in the text applied specifically to automatic weapons, armor piercing ammunition, or any of the other modern aspects of \u201cfirearms\u201d that were unknown in 1789.\u00a0 <\/span>Instead, Justice Scalia\u2019s opinion attaches the right to bear arms generally to the kinds of weapons \u201ctypically possessed by law-abiding citizens for lawful purposes.\u201d\u00a0 <\/span>Of course, the weapons that met this criteria in 1789 differ from the weapons that met this criteria in 1939, when the Court upheld the federal regulation of shotguns, which might very well differ form the types of weapons that meet this criteria today.\u00a0 <\/span>This fact suggests that once a right is located in the original text it continues to attach and respond to evolving societal circumstances.\u00a0 <\/span>Therefore, Justice Scalia\u2019s treatment of individual rights under the Second Amendment contrasts with other instances where he has expressed doubt that the scope of conduct protected by the Constitution can evolve.<\/p>\n

If we take an acceptance of evolving individual rights and add the additional confirmation that state and local governments are necessarily precluded from restricting these evolving rights to the same extent as the federal government, the result is some of the strongest rights-based jurisprudence of recent years.\u00a0 <\/span>I doubt that any of this would trouble a Justice Sotomayor.\u00a0 <\/span>On the other hand, a Justice Bork might have difficulty accepting such a result.<\/p>\n

The Heller<\/em> opinion provides a test case of what happens when conservative theories of constitutional interpretation come into conflict with culturally conservative values.\u00a0 <\/span>During his career as a scholar and a judge, Robert Bork made it clear that if forced to choose between the two he would choose the former.\u00a0 <\/span>His consistency of thought over his long career fed into the popular conception of Judge Bork as a jurist that placed fidelity to theory ahead of the real world consequences of his judicial rulings.\u00a0 <\/span>After all, the public wants to see a little pragmatism in its judges, just not too much pragmatism.\u00a0 <\/span>But Judge Bork\u2019s place in the conservative canon has become somewhat ambiguous some two decades after his nomination battle.\u00a0 <\/span>Despite his continued iconic status as a symbol of conservative thought, the power brokers in today\u2019s conservative political movement place a primacy on cultural values over theoretical consistency.<\/p>\n

This focus on cultural conservatism has had unintended consequences for the political right.\u00a0 <\/span>I would contend that the litigation strategy of the National Rifle Association has done more to expand the protection of individual rights under the Constitution over the past few years than the strategy of the American Civil Liberties Union.\u00a0 <\/span>Paradoxically, the success of cultural conservatives in achieving their objectives on the issue of the right to bear arms has come at the expense of undermining the intellectual foundation of Judge Bork\u2019s judicial philosophy.<\/p>\n","protected":false},"excerpt":{"rendered":"

In an earlier post, I compared the nominations of Judge Sonia Sotomayor and Judge Robert Bork in order to make some observations about the role of stare decisis and its relationship to judicial activism.\u00a0 My argument was that a respect for the wisdom of past practice and a preference for incremental change will allow Judge […]<\/p>\n","protected":false},"author":16,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[80,24],"tags":[],"class_list":["post-5680","post","type-post","status-publish","format-standard","hentry","category-constitutional-interpretation","category-us-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/5680","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/16"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=5680"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/5680\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=5680"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=5680"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=5680"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}