Feldman Misses on Little Sisters and 2nd Amendment

May 18th, 2016

Noah Feldman’s two most recent columns contain two misses.

First, he writes that the Little Sisters of the Poor, and other petitioners in Zubik, will not accept any compromise that results in their employees receiving contraceptive care, because their goal is to “derail” the mandate:

The shift demonstrates that the real goal of the organizations is not to take any deal at all. The Obama administration wants employees to get coverage “seamlessly,” that is through their own doctors and insurers. The religious organizations seem unwilling to accept anything other than active disruption. Their reasoning is principled:  they think contraception is immoral and they want to do anything they can to make it harder to get. If they can derail any part of the contraceptive care mandate, they will.

This is false. The Petitioners urged the government to find a way to provide their female employees without the involvement of their insurance plans, either through a separate policy with the same insurance company, the ACA Exchanges, Title X, or some other means. While they no doubt oppose the notion of contraception as a moral matter, they do not object to the government finding a way to accomplish their compelling interest–so long as it doesn’t burden their faith. Traditionally, many of the religious employers who object to the mandate specifically give their workers generous Health Savings Accounts, knowing full well what they will use it for.

Second, in a piece about the 9th Circuit’s decision in Teixeira v. County of Alameda, Feldman wrote that the lower courts are effecting a “revolution” in Second Amendment jurisprudence.

There’s a quiet revolution going on in the constitutional law of guns. Since the Supreme Court declared gun ownership a fundamental right less than a decade ago, the lower courts have been expanding upon that landmark ruling.

If only this were true! The lower courts have engaged in flat-out disobedience to Heller and McDonald. I can count on one hand the number of district court decisions invalidating laws under the Second Amendment, that were not reversed on appeal or by an en banc court. (The Supreme Court has denied cert on every single cert petition involving the 2nd Amendment since McDonald). The lower courts have been hostile to the right to keep and bear arms. Teixeira is a complete outlier. Look no further for the never-ending saga of the right to carry in the District of Columbia. My colleague Alan Gura and others have gone through so many appeals since Heller was decided, and the case still has not reached a final disposition.  In 2014, I wrote a piece in The American Spectator listing all of the 2nd Amendment cases where the challengers have lost. Not much has changed in the last two years.

Earlier this week, he made two glaring errors about Judge Collyer’s opinion in House of Representatives v. Burwell.