Textualist, or contextualist?

ConstitutionI keep hearing that Brett Kavanaugh is a committed textualist, a clear thinker, someone who reveres the written Constitution, and so on.  I have to say, I’m not seeing it in his opinions.

To take just one of many examples that people are discussing, let’s look at his dissent in the second Heller case, which Fox News holds up as an example of the kind of ‘clear and succinct reasoning’ that we can expect from Kavanaugh if he’s confirmed.  This is essentially his closing argument:

In [the first Heller case], the Supreme Court held that handguns – the vast majority of which today are semi-automatic – are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semi-automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller’s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional. (By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller.)

There are so many things wrong with this that it’s hard to list them all, so I’ll just stick to the highlights.

First, he’s not even looking at the text of the Constitution here.  Rather, he’s looking at what some judges (in Heller) have said about what other judges have said (in Miller), not about the text of the 2nd Amendment, but about their understanding of the context in which it was ratified.

Second, his laundry list of ‘lawful uses’ of firearms omits enabling the people to abolish their government by force, should that become necessary – which is the only use important enough to mention in the text of the 2nd Amendment.

Third, the text of the 2nd Amendment doesn’t mention ‘law-abiding citizens’.  It says that the right to keep and bear arms is a right of ‘the people’.  Those two groups are not the same.

Fourth, and somewhat incidentally, machine guns aren’t banned.  (I have friends who own some.  I have owned some.)  They’re regulated.

Fifth, and most importantly, his reasoning runs in the wrong direction.  He is saying that because some arms have ‘traditionally been banned’, those bans must therefore be constitutional, even if they flatly contradict the text of the 2nd Amendment.

That is, his reasoning can be summarized this way:

  1. The Court (not the written Constitution) says that semi-automatic handguns are constitutionally protected because they have not been traditionally banned.
  2. Semi-automatic rifles aren’t any worse than semi-automatic handguns.
  3. Therefore semi-automatic rifles are also constitutionally protected.

Here’s another excerpt that illustrates the problem even more clearly:

Gun bans and gun regulations that are longstanding – or, put another way, sufficiently rooted in text, history, and tradition – are consistent with the Second Amendment individual right. Gun bans and gun regulations that are not longstanding or sufficiently rooted in text, history, and tradition are not consistent with the Second Amendment individual right.

That is, the fact that the text of the 2nd Amendment forbids infringements – like ‘gun bans and regulations’ – of the right to keep and bear arms is irrelevant.  In Kavanaugh’s view, the text is subordinate to history and tradition.

This is pretty much the opposite of textualism.

As for clarity, to see just how sloppy this reasoning is, for ‘gun bans and gun regulations’, let’s substitute ‘laws allowing slavery’; and for ‘Second’ let’s substitute ‘Thirteenth’. That gives us:

Laws allowing slavery that are longstanding – or, put another way, sufficiently rooted in text, history, and tradition – are consistent with the Thirteenth Amendment individual right. Laws allowing slavery that are not longstanding or sufficiently rooted in text, history, and tradition are not consistent with the Thirteenth Amendment individual right.

Following this reasoning, in 1867, slavery would still be okay in Alabama, but not in Nebraska.  It’s absurd.

For those who have perhaps never seen it (since it occurs so rarely in court opinions), here’s an example of clear, textualist reasoning that reveres the written Constitution:

  1. The right of the people to keep and bear arms shall not be infringed.
  2. A semi-automatic rifle is an ‘arm’.
  3. A ban is an ‘infringement’.
  4. Therefore, keeping and bearing semi-automatic rifles shall not be banned.

When we see a Supreme Court justice who is willing to write an opinion like this, then I’ll get excited about having a ‘textualist’ on the bench.

Until then, Kavanaugh is perhaps as close as we’re likely to get. But let’s not overstate the case, trying to rally support for his confirmation by claiming that he’s something he’s not.

Genuine textualists are as rare as unicorns.  Kavanaugh is no unicorn.  At best, he’s a horse with a horn glued to his head.