Doe v. Reed, D.C. v. Heller, and Longstanding Traditions & Prohibitions

June 24th, 2010

In his opinion in Doe v. Reed, Justice Scalia took a historical and originalist approach to find that there is no constitutional right to vote or legislate in public. Scalia relied on “Our Nation’s longstanding traditions” to ascertain whether such a right exists.

Plaintiffs’ argument implies that the public nature of these practices, so longstanding and unquestioned, violated the freedom of speech. There is no historical support for such a claim.

Today’s opinion acknowledges such a right, finding thatit can be denied here only because of the State’s interest in“preserving the integrity of the electoral process,” ante, at
8. In my view this is not a matter for judicial interest-balancing. Our Nation’s longstanding traditions of legis-lating and voting in public refute the claim that the First Amendment accords a right to anonymity in the perform-ance of an act with governmental effect. “A governmental practice that has become general throughout the United States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of con- stitutionality.” McIntyre, supra, at 375 (SCALIA, J., dissenting).

Scalia presents an impressive array of historical materials from the time of our founding, showing that no right to voting and legislating in private exists.

But I am aware of no contention that the Australian system was required by the First Amendment (or the state counterparts). That would have been utterly implausible, since the inhabitantsof the Colonies, the States, and the United States had found public voting entirely compatible with “the freedomof speech” for several centuries.

The long history of public legislating and voting contra-dicts plaintiffs’ claim that disclosure of petition signatureshaving legislative effect violates the First Amendment. As I said in McIntyre, “[w]here the meaning of a constitu-tional text (such as ‘the freedom of speech’) is unclear, the widespread and long-accepted practices of the Americanpeople are the best indication of what fundamental beliefs it was intended to enshrine.” 514 U. S., at 378 (dissenting opinion). Just as the century-old practice of States’ pro-hibiting anonymous electioneering was sufficient for me toreject the First Amendment claim to anonymity in McIn-tyre, the many-centuries-old practices of public legislating and voting are sufficient for me to reject plaintiffs’ claim.

If this “longstanding”phraseology sounds familiar, think back to the wonderful dicta Justice Kennedy added to D.C. v. Heller:

Although we do not undertake an exhaustive historical analysis today of the full scope of theSecond Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Ah yes, “longstanding prohibitions.”

How long must a prohibition or tradition be in existence before it is longstanding?

As I discussed in this post, a fantastic article in the Harvard Journal of Law & Public Policy, titled Why can’t Martha Stewart Own a Gun makes the argument that prohibitions on possession of firearms by felons and the mentally ill are not in fact that longstanding. The article argues that most gun controls laws started to sprout after World War I. From a summary by Professor Nelson Lund:

While acknowledging that this history cannot solve all line-drawing problems, Mr. Marshall makes a powerful case that the traditional understanding of the right to arms did not authorize much more than laws forbidding those convicted of crimes of violence to carry firearms outside their homes, and possibly also forbidding them to possess easily concealable weapons, at least for as long as the offender continued to present a credible threat of recidivism.

If Scalia looks back to voting practices in the late 18th century to determine longstanding traditions for the purposes of the First Amendment, perhaps the Court can look back earlier than World War I to determine what the longstanding prohibitions on the right to keep and bear arms are.