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Cass Sunstein and the Second Amendment:

Second Amendment Minimalism: Heller as Griswold appeared in a symposium issue of the Havard Law Review last fall. Sunstein examines the parallels between Heller and Griswold: "In both cases, the Court spoke on behalf of the contemporary sentiment of a national majority against a national outlier...No less than the right of privacy, and notwithstanding the backward-looking nature of the Court's opinion, the right to have guns is likely to evolve over time through case-by-case judgments made under the influence of contemporary social commitments."

Sunstein also notes an important distinction between Griswold and Heller:

There is an important historical difference to be pondered as well. Heller is the product of a mature current of constitutional thought, spurred by private groups but also by committed academics, that had clearly become prominent in nationwide politics and culture and that, by 2008, had established itself as thoroughly mainstream. In sharp contrast, Griswold was the result of an early effort by an incipient movement for reproductive rights and sex equality that had yet to become highly visible on the nation's cultural viewscreen. In this sense, Heller has far more in common with Brown v. Board of Education than with Griswold—in the particular sense that Brown, like Heller, was the culmination of a long process of advocacy, in a self-conscious effort to entrench a certain understanding of the Constitution in the interest of social reform. In short, Heller and Griswold have distinctive sociologies. While the two are both responsive to public convictions, the cultural backdrop for the two decisions was radically different.
As a description of judicial behavior, I think Sunstein's article is accurate. He would prefer that the Second Amendment be interpreted to uphold gun laws which I might consider to be infringements. However, Sunstein makes it clear that he considers Heller rightly decided; he is no originalist, but instead believes that the Court owed some deference to the moral commitments of tens of millions of Americans. Thus, Sunstein qualifies as among the most "pro-Second Amendment" of Obama administration nominees.

This is, admittedly, a very small group. Other than Interior Secretary Ken Salazar and Transportation Secretary Ray LaHood, I cannot think of any Obama nominee with a record of doing anything to support an individual Second Amendment right that includes the right to own a handgun.

I echo Ilya's point (see the chained post) that Sunstein has a much more pro-liberty perspective than anyone else that Obama might nominate to run the Office of Information and Regulatory Policy.

Update: A commenter has posted a video of a Sunstein lecture at U. Chicago in 2007 which presents a much more hostile attitude towards the individual right than is expressed in the Harvard article.

Still more: The American Spectator quotes an unnamed White House source:
"The goal from this White House is to have as much nonspecific language passed by Congress in policy areas like health care and the environment and then use Sunstein's office to put in place the regulatory language called for by Congress that gets us to where we want to be. It may very well be the most important job in this administration, given the lack of success we may have on Capitol Hill."

J. Aldridge:
However, Sunstein makes it clear that he considers Heller rightly decided; he is no originalist, but instead believes that the Court owed some deference to the moral commitments of tens of millions of Americans.

I think he means moral commitments to the NRA since it has been an active goal of the NRA to convince many as it could of an individual right to own a gun at home.

Remove the NRA's 2A campaign and I wonder how many really would view it as an individual right to own a gun?
9.8.2009 4:36pm
DangerMouse:
One other distinction: the right to bear arms is explicitly mentioned in the Constitution. The "right" to contraceptives and abortion is not.
9.8.2009 4:48pm
Melancton Smith:
A lot of people I know, many of whom are liberal, don't pay any attention to the NRA and yet feel 2A is an individual right, though subject to limits.

Most people don't even seem to be aware of the militia clause and don't really understand it.
9.8.2009 4:50pm
Houston Lawyer:
The NRA is supported by the contributions of hundreds of thousands of individuals, who support it because of the advocacy that it engages in. The NRA's position echos that of generations of Americans who have had a similar understanding since the adoption of the Bill of Rights.

The right of "privacy" conjured up in Griswold has no such historical record.
9.8.2009 4:52pm
PatHMV (mail) (www):
Yes, J. Aldridge, dang like-minded folks for conducting advocacy campaigns to persuade people to agree with them!

You do understand, don't you, that your question is ridiculous, unless you also wonder how many really would want to restrict gun ownership if you remove the Brady Campaign's gun-control efforts? Remove all of the influences of editorials in major newspapers in favor of gun-control?

In a free society, people's opinions form and change based on public discourse on a particular topic. And people on both sides of issues generally come together in an organized fashion to make the public case in favor of their preferred policy. Your questions appears to assume that the "real" public opinion must be based on a population which is either entirely ignorant or purely self-educated from 100% objective sources regarding the issue at hand.
9.8.2009 4:53pm
ruuffles (mail) (www):

The NRA is supported by the contributions of hundreds of thousands of individuals, who support it because of the advocacy that it engages in.

Seriously? So now the Constitution is determined by how much cash the NRA can raise?

The right of "privacy" conjured up in Griswold has no such historical record.

I don't know, is there a historical record of people clamoring to breath oxygen? I think the result of the Bork nomination answers whether people expect a right to privacy.

Oh and delicious irony: had Bork made it, we wouldn't even be having this discussion.
9.8.2009 4:58pm
ruuffles (mail) (www):

One other distinction: the right to bear arms is explicitly mentioned in the Constitution. The "right" to contraceptives and abortion is not.

One non-distinction: Bork would not have found either right in the Constitution.
9.8.2009 5:02pm
Oren:


I think he means moral commitments to the NRA since it has been an active goal of the NRA to convince many as it could of an individual right to own a gun at home.


Cart/Horse. The NRA is strong because so many believe in the RKBA, not vice versa.
9.8.2009 5:03pm
ruuffles (mail) (www):

Cart/Horse. The NRA is strong because so many believe in the RKBA, not vice versa.

I was curious as to what the NRA did during the Bork fight. I googled for "+NRA +bork" Here's an excerpt from the second hit, from google books ("Battle for Justice")

"When one of the most powerful conservative groups in the country ... felt threatened by Bork's strict interpretation of the Constitution, it was an omen."
9.8.2009 5:08pm
Kirk:
Indeed, Oren: in fact Houston Lawyer's number is low by an order of magnitude.
9.8.2009 5:08pm
Tim Nuccio (mail) (www):
It is absolutely mind boggling to me as to how the affirmation of an existing right bears any resemblance to the court "inventing" a new right. While Sunstein's pragmatism is shared by many members of the legal community (including sitting and retired Justices, scholars, and practicing lawyers), I believe it is a very dangerous road to go down to suggest that one's exercise of enumerated constitutional rights ought to face the scrutiny of "social" pressure.

The comments about Bork simply show how serious of a problem this is and remains. The defense of liberty is an endless task.
9.8.2009 5:19pm
alkali (mail):
In sharp contrast, Griswold was the result of an early effort by an incipient movement for reproductive rights and sex equality that had yet to become highly visible on the nation's cultural viewscreen.

Not sure this is true. There were highly visible public movements in support of birth control dating back to before World War I.
9.8.2009 5:22pm
DangerMouse:
One non-distinction: Bork would not have found either right in the Constitution.

ruuffles, I really don't care what Bork would have done. I would've bought a Ferrari if I won the lottery last week.
9.8.2009 5:38pm
Mikeyes (mail):
(Ignoring the part before the comma)Sunstein says: "the right to have guns is likely to evolve over time through case-by-case judgments made under the influence of contemporary social commitments." in the abstract of his article.

Isn't this the crux of his paper? I don't think he is equating the merits of Heller and Griswald as much as he is saying what most of us have said in the past: that there will be future rulings based on the Heller decision that will shape the way the RKBA is limited. Like many other explicit rights there are limits that have evolved over the years often to the music of the latest ideas.

Public opinion, or at least the opinions judges listen to, will have an effect.
9.8.2009 5:39pm
ruuffles (mail) (www):

I would've bought a Ferrari if I won the lottery last week.

But if Bork had his way, not a semi-auto.
9.8.2009 6:01pm
John A (mail):
Ah, but that was POST-Heller - contrast with his October 2007 position, PRE-Heller -

SCOTUS never held individual right and never will

As a layman at law my understanding is that even the [in]famous Miller allowed for an individual right, but only for weapons of known/proven military use. This guy is a scholar?


[DK: Miller interpretations were contested and unclear, as O'Shea's article explicates. Regardless of Miller, the video shows Sunstein with a much more hostile attitude towards individual Second Amendment rights than is indicated in the Harvard article.]
9.8.2009 6:10pm
CDU (mail) (www):

Remove the NRA's 2A campaign and I wonder how many really would view it as an individual right to own a gun?

If it weren't for that pesky first amendment we could get rid of the second!
9.8.2009 6:17pm
DangerMouse:
But if Bork had his way, not a semi-auto.

Are you stalking Bork or something? Why do you keep bringing him up? In case you aren't aware, he was not confirmed to the Supreme Court.
9.8.2009 6:31pm
Tim Nuccio (mail) (www):


As a layman at law my understanding is that even the [in]famous Miller allowed for an individual right, but only for weapons of known/proven military use. This guy is a scholar?


Miller's value as a piece of the 2nd Amendment case law was minimal at best prior to Heller and after Heller, totally worthless.

The issue, was at the very least, completely up in the air, if not entirely favoring the collective rights opinion (Pre-Heller). The scholarship of the last 20+ years has gone the other way, fortunately.

See my blog post here, specifically, the "Scope of the Right" section,
for further discussion on precisely that issue.
9.8.2009 6:48pm
ArthurKirkland:

I echo Ilya's point (see the chained post) that Sunstein has a much more pro-liberty perspective than anyone else that Obama might nominate to run the Office of Information and Regulatory Policy


Did I miss the announcement that the other candidates Obama might nominate want to discriminate against gays, advocate torture, favor warrantless surveillance, support endless detention, hope to jam religious lessons into schools and would increase prison terms for doobie-smokers?
9.8.2009 6:50pm
ruuffles (mail) (www):

In case you aren't aware, he was not confirmed to the Supreme Court.

Ah, but if he was, we wouldn't have Heller.
9.8.2009 6:55pm
DangerMouse:
Ah, but if he was, we wouldn't have Heller.

You've said that multiple times. However, it's not clear that we wouldn't have Heller. As I said before, Bork instigated the Souter nomination. If Bork was confirmed, it's unlikely that Souter, as a "stealth nominee" attempt, would have ever been nominated by President Bush. He probably would've gone with a much more openly conservative nominee.

So your conclusion that Heller wouldn't have been decided the way it was is only your conjecture. Additionally, you can't even really say that Bork's thinking would've evolved the same way ON the court as it did OFF the court.

It's funny to see you play this game, at trying to set up Bork as the end-all-be-all of Judging, and then needle people over his opposition to the Heller decision. But all it does is make you look like a fool.
9.8.2009 7:25pm
J. Aldridge:
One other distinction: the right to bear arms is explicitly mentioned in the Constitution.

So was the right under the Massachusetts Constitution but the court never found it to be anything like what Heller fabricated.
9.8.2009 8:07pm
CDU (mail) (www):
So was the right under the Massachusetts Constitution but the court never found it to be anything like what Heller fabricated.


What bearing does a state supreme court interpreting a state constitutional provision have on the U.S. Supreme Court interpreting the Bill of Rights?
9.8.2009 8:17pm
Daniel Chapman (mail):
Will you please stop responding to Ruffles? He's trolling, and you're biting. If no one's going to shut him up, will you at least stop encouraging him?
9.8.2009 8:28pm
J. Aldridge:
What bearing does a state supreme court interpreting a state constitutional provision have on the U.S. Supreme Court interpreting the Bill of Rights?

Has a lot of bearing of the true understanding of the words that both constitutions used during the same time period.
9.8.2009 8:36pm
Melancton Smith:
So what Mass ruling and when was it? Do they have secret documents not available to folks outside Mass?
9.8.2009 8:46pm
J. Aldridge:
How many people have claimed a constitutional right to own a gun before a Mass court since 1790? Not very many which shows it was not a very confusing provision requiring a court ruling.

I think the standing ruling has always been what is found in
Bishop's Statutory crimes, that the keeping and bearing of arms means weapons of war.
9.8.2009 9:43pm
CDU (mail) (www):
How many people have claimed a constitutional right to own a gun before a Mass court since 1790? Not very many which shows it was not a very confusing provision requiring a court ruling.


That depends heavily on what restrictions Massachusetts placed on the right to own a gun and when. Nobody is going to be filing challenges if there are no restrictions.
9.8.2009 10:22pm
David Hardy (mail) (www):
"keeping and bearing of arms means weapons of war."

Excellent! For full constitutional protection, I can trade in my .22 pistol on a belt-fed Browning 1917 machine gun!
9.9.2009 12:08am
Melancton Smith:
Kathleen Ryg campaigned with a glossy slick ad in Illinois featuring a picture of a Browning M2 with a pile of brass under it. In IL, where no civilian can own NFA weapons even with a Federal Permit.
9.9.2009 1:00am
J. Aldridge:
Nobody is going to be filing challenges if there are no restrictions.

That goes for anything other than a gun - like horses :-)

I remember reading the militia went door-to-door confiscating arms of citizens of Boston, everyone except members of the militia who had a constitutional right to be armed.
9.9.2009 10:21am
CJColucci:
Would someone refresh my recollection about when Sunstein had gun control added to his portfolio? Does anyone know the Secretary of Agriculture's views on the Second Amendment?
9.9.2009 12:16pm
Soldier of Fortune:

"keeping and bearing of arms means weapons of war."

Excellent! For full constitutional protection, I can trade in my .22 pistol on a belt-fed Browning 1917 machine gun!


I have argued here that citizens should be able to possess all the weapons that an individual soldier may carry. Why limit yourself to a 1917 version? It is still being manufactured today.
9.9.2009 1:25pm
Mikee (mail):
An unenumerated privacy right allows self-defense against possible disease or pregnancy during consensual sex acts through prophylaxis as per Griswold.

Can an enumerated right to keep and bear arms per Heller NOT allow self defense through use of firearms against a non-consensual violent criminal attack?
9.9.2009 3:39pm
second history:
The Senate today voted 63-35 end debate on Sunstein's nomination; Beck claims they are "rushing the vote" of someone who was nominated in January.
9.9.2009 6:44pm
A. Zarkov (mail):
Sunstein is perhaps the most dangerous of all the Obama appointees. According to Wikipedia
His 2001 book, Republic.com, argued that the Internet may weaken democracy because it allows citizens to isolate themselves within groups that share their own views and experiences, and thus cut themselves off from any information that might challenge their beliefs, a phenomenon known as cyberbalkanization
Is this going to provide the theoretical underpinning for regulation of the Internet? It's no secret that the Democrats and their running dogs like Sunstein hate talk radio and the Internet because those media are now the only effective channel of mass communication for the opposition. The MSM are useless as they are now an arm of the Democrats. The left controls our major universities which use speech codes to stifle opposition to political correctness. But for the Internet CBS would have gotten away with their Bush memo forgeries. Without the Internet and talk radio the Communist Van Jones would still be the green energy adviser. Cyberbalkanization my ass. This guy is a menace to free speech.

In his book Nudge, Thaler and Sunstein argue

"People often make poor choices - and look back at them with bafflement! We do this because as human beings, we all are susceptible to a wide array of routine biases that can lead to an equally wide array of embarrassing blunders in education, personal finance, health care, mortgages and credit cards, happiness, and even the planet itself."
They often do make poor choices. Look at the election of Barack Hussein Obama. But let's read between the lines here. Sunstein would rather have the elites make these decisions for you.

Finally isn't it funny that we need a blogger to find the Sunstein lecture that contradicts his present position on 2A? Did he ever point out, his prior position or did this almost go down the memory hole? Sunstein will be Obama's György Lukács-- reason in the service of dogma?
9.10.2009 12:18am
J. Aldridge:
His 2001 book, Republic.com, argued that the Internet may weaken democracy because it allows citizens to isolate themselves within groups that share their own views and experiences, and thus cut themselves off from any information that might challenge their beliefs, a phenomenon known as cyberbalkanization

People been doing that long before there was a internet. It's called religion.
9.10.2009 3:30am
markm (mail):
J. Aldridge: And politics.
9.10.2009 6:45am
Eli Rabett (www):
Griswald held that guys could put rubbers on their guns to keep it dry.
9.10.2009 7:30pm

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