Posted by David Kopel:
The Second Amendment in the Tenth Circuit: Three Decades of (Mostly) Harmless
Error:
http://volokh.com/archives/archive_2009_01_11-2009_01_17.shtml#1232220029
Every year the Denver University Law Review publishes a Tenth Circuit
Survey. In the forthcoming issue, the lead [1]article is my
examination of the Tenth Circuit's record on the Second Amendment
issues. My conclusion:
The Tenth Circuit�s three-decade record of Second Amendment cases
was a disgrace to the rule of law.
It was not a disgrace for wrong results. Almost all the decisions
involved restrictions on narrow classes of especially dangerous
weapons, or the prohibition of gun ownership for people who had
proven themselves to be dangerous. Most of these results are
presumptively valid under Heller, and most of the rest are in no
worse than a gray zone of validity. Even pre-Heller, almost all the
decisions could, as Judge Kelly observed in Parker [a 2004 case, in
which a concurring opinion by Judge Kelly criticized the
overbreadth of previous Tenth Circuit opinions on the Second
Amendment], have been written on the narrow grounds of upholding
legitimate, narrowly tailored restrictions on the Second Amendment.
The Tenth Circuit jurisprudence was not a disgrace because it
adopted a militia-only theory of the Second Amendment....The Tenth
Circuit�s jurisprudence cannot be called a disgrace because it
ultimately ended up on the "4" side of a 5-4 Supreme Court
decision. Although militia-only was a weaker theory, it was not a
preposterous theory, or a theory bereft of any intellectual
support.
The reason that the Tenth Amendment�s Second Amendment cases are a
disgrace is that they barely had any reasoning. If you take
everything that the Tenth Circuit wrote about the Second Amendment
in Oakes (1977) and the 25 years of cases thereafter, the whole
thing combined would not add up to a mediocre student Note in a
secondary journal at an unaccredited law school.
Even the lowliest of student Notes must at least attempt to address
the most important arguments on the other side. Especially when
those contrary arguments come from the U.S. Supreme Court's
explication of the very text that is at issue. Or from enactments
of the Congress of the United States. Or from the Yale Law Journal,
the Michigan Law Review, and or Larry Tribe, Akhil Amar, and
Sanford Levinson. A mediocre student Note would not address all
these sources, but it would address at least a couple. The Tenth
Circuit spent a quarter century pretending there were no serious
contrary authorities.
Nobody forced the Tenth Circuit to propound a grand of the Second
Amendment without being able to make a serious intellectual defense
of the theory. As Judge Kelly pointed out, almost all the Second
Amendment cases that came to the Tenth Circuit could have been
handled simply by addressing whether they involved legitimate
restrictions on the right. It was a deliberate choice of the Tenth
Circuit to reach out in Oakes, and to, in effect, declare that an
entire Amendment to the Bill of Rights was a nullity, insofar as
its protection of 99.9% of the American people.
It was the choice of the Tenth Circuit to continue to declare its
Second Amendment decisions in the sweeping, nullificationist terms
of Oakes. If the Circuit were determined to proceed on such a broad
front, then the Circuit owed the American people a real
justification of its actions. Not the pompous ipse dixit of Haney,
Oakes, and the other cases, but a serious explanation. An
explanation which addressed the best arguments on the other side.
That the Tenth Circuit never did so perhaps reflected a lack of
intellectual self-confidence. The Tenth Circuit is a good example
of Sanford Levinson�s observation that some elements of the legal
elite refused to intellectually engage with the Second Amendment
because of "a mixture of sheer opposition to the idea of private
ownership of guns and the perhaps subconscious fear that altogether
plausible, perhaps even 'winning,' interpretations of the Second
Amendment would present real hurdles to those of us supporting
prohibitory regulation."
VC contributors have often posted thoughtful comments which have
improved my draft articles. I look forward to similar comments here.
References
1. http://ssrn.com/abstract=1327473
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