The Volokh Conspiracy
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The Harvard Law Review published an unsigned student note on Young v. Hawaii. (All student notes on HLR are unsigned). In that case, the Ninth Circuit declared unconstitutional Hawaii's prohibition on open-carry. Recently, the Court of Appeals granted rehearing en banc. That decision will likely be reversed.
The note argues that originalism requires something of a clear statement rule: unless constitutional history is "clear," then the court should defer to the democratic branches. The note explains:
Young's shortcomings point to a broader lesson about Second Amendment analysis: where balanced historical review fails to reveal a single public meaning, reading the record selectively risks subverting the objectives of originalism itself. Heller may have treated history as determinative in defining the right to self-defense within the home, but Justice Scalia was well aware that this approach has its limits. The "principal defect" of originalism, he explained, is that "historical research is always difficult and sometimes inconclusive. Such ambiguity, however, is not an invitation for courts to choose their preferred constitutional meaning; judges should instead proceed cautiously to resolve disputes in a manner consistent with broader originalist values….
Young's outcome is also at odds with the conception of originalism as a restraint on undue interference in the political domain. According to Justice Scalia, originalist analysis "intrudes less upon the democratic process" than other interpretive methods: courts are expected to safeguard rights grounded clearly in "constitutional history," while leaving other asserted rights to be "adopted or rejected" through ordinary politics. 69 Put differently, where history is "indeterminate . . . as to the specific question at hand," courts have "no basis for displacing . . . political decisions made by an imperfect representative democracy."70 Such restraint would have been warranted in Young, where the conduct at issue had long been regulated due to the pronounced threat to public safety.71 But the Young panel instead inserted itself into Hawaii's legislative process without a convincing justification for doing so, engaging in the exact type of judicial overreach that originalism was intended to avoid….
The emphasized sentence comes not from Justice Scalia, but from Michael Stokes Paulsen's 2006 article, How to Interpret the Constitution (and how not to).Here is the full passage from Paulsen's article:
Simply put: If the meaning of the words of the Constitution supplies a sufficiently determinate legal rule or standard applicable to the case at hand, that rule or standard must prevail over a contrary rule supplied by some other competing source of law (typically a state or federal statute, or an executive branch or agency action). That is because of the supremacy of the Constitution over other law.37 Thus, if the Constitution supplies a rule, that rule prevails. But if the meaning of the Constitution's language fails to provide such a rule or standard—if it is actually indeterminate (or under-determinate) as to the specific question at hand—then a court has no basis for displacing the rule supplied by some other relevant source of law applicable to the case (typically, a rule supplied by political decisions made by an imperfect representative democracy).38 Folks legitimately might disagree as to when the original meaning produces a determinate answer, or what counts as sufficiently determinate to supply a constitutional rule appropriate for judges to apply to invalidate political decisions. But that should be the core of the enterprise.
The note and Paulsen use the word "indeterminate" in different fashions. The note suggests that if there is a debate, even a reasonable one over constitutional history, then courts must defer to the elected branches. Indeed, the note advocates for a standard that would apply in cases in which the history is much closer than in Young:
When courts encounter challenges to public-carry statutes, more deferential review ensures appropriate respect for the legislatures' prerogative, discourages unwarranted restrictions on state police power, and leaves room for democratic debate on issues unfamiliar to the Founding generation. Simply put, unless historical evidence clearly commands otherwise, courts claiming fidelity to originalist values ought to defer to democratically enacted public-carry policies.
This standard–"clearly commands" is extremely demanding. Heller itself disproves the note's approach. Heller was a sharply divided 5-4 decision. According to the dissenters, the history was indisputably clear in favor of their position. Under the standard advanced in the note, D.C.'s firearm laws should have been upheld. But the regulations were declared unconstitutional.
Finally, I do not think Heller's critics would be willing to extend this clear statement rule to any other favored right under the Due Process Clause. History plays no role, whatsoever, in many of the Court's most significant decisions. As usual, originalists are held to a much higher standards than adherents of other modalities. Here, the HLR note tries to make that burden even greater. And once again, non-originalists dictate to originalists what "originalist values" are.
I hope the Supreme Court, in due course, can discuss the important interplay between originalism, judicial restraint, and a presumption of liberty.