In the course of reviewing the Supreme Court’s latest decisions, one article I found to be particularly intriguing is law professor William Baude’s “Symposium: What divides the Court, and what unites it.” While the NLRB v. Noel Canning decision turned on a Constitutional analysis of presidential authority and executive over-reach (regarding recess appointments), what struck me about the case was how differently the Court’s two opinions (concurring in judgment) reached their respective conclusions.
What does Noel Canning have to do with Second Amendment analysis and jurisprudence? Perhaps nothing at all, but consider first Professor Baude’s commentary:
“Stepping back from the question of interpretive methodology and into a narrower role as critic, I cannot resist making two other observations about the awkwardness of the majority opinion.
First, because Justice Breyer rejects the textual/original limits on the recess appointment power, he is forced to come up with some other dividing line to explain when a break is too short to count as a constitutional recess. (Almost everybody agrees that it would be absurd to read the Constitution in a way that let presidents make appointments in the middle of the night, or even over a weekend). He comes up with two: “A 3-day recess would be too short.” That is a hard limit, with no apparent exceptions. But then there is a second limit: “a recess of more than 3 days but less than 10 days is presumptively too short” but maybe “some very unusual circumstance– a national catastrophe, for instance” could justify an exception.
Since the majority has fought its way free from the text, these numbers are fairly arbitrary. The three-day limit has the virtue of matching the three-day requirement in the Adjournments Clause (which limits the Senate’s ability to adjourn without House consent), but it is not at all clear why the Adjournments Clause applies to the Recess Appointments Clause. The real virtue of the number three, from the executive’s point of view, is that it is the shortest plausible number that allows them to solve “the nights and weekends problem,” which is likely why the Solicitor General conceded it at argument.
The ten-day limit is derived from “historical practice,” and therefore from the accident of when the case happens to have been brought. As Michael Rappaport has chronicled, the executive branch has made recess appointments during shorter and shorter periods as time goes on. Had the Court decided the case decades earlier, it might have picked a bigger number. Had it decided the case decades later, it might have picked a smaller one. Either way, the Supreme Court’s imposition of a ten-day limit has a whiff of magic. (Why not, say, fourteen days? Or thirty or sixty, as Professor Rappaport has suggested?)” (Emphasis added.)
Now, consider for a moment how the majority’s analysis might be applied to, e.g., firearm magazine limits.
In spite of significant historical evidence to the contrary, both the Northern District of California and District of Colorado federal courts have found that arbitrary limits on magazine capacity do not violate the Second Amendment. (See, e.g., Br. Amicus Curiae of Pink Pistols In Support Of Plaintiffs’ Motion For Preliminary Injunction at 7 n.7, San Francisco Veteran Police Officers Ass’n v. San Francisco, No. 13-CV-05351WHA (N.D. Cal. Jan. 15, 2014) (discussing historical prevalence of large-capacity magazines; “the 1896 Mauser C/96 could accept a detachable 20-round box magazine, the famous 1908 Luger could accept a detachable 32-round magazine, and the Browning High-Power pistol designed in 1926 came standard with a 13-round magazine.”).
While those cases–quite admirably helmed by constitutional law experts like Dave Kopel and C.D. Michel–are far from over, their similar fates at the trial courts level offers a warning to Second Amendment advocates: it’s going to be an uphill battle.
Back to Noel Canning. If the Supreme Court is to ensure the survival of fundamental individual liberties that our Founders enshrined for our nation’s unique experiment in freedom, it must evaluate challenged laws and practices based on the text and meaning of the Constitution, not poor substitutes. As asked by Baude in his Symposium, “Can subsequent practice trump the [Constitution's] text or its original meaning?” If arbitrary and recently-enacted gun control laws like magazine limits are to be overturned, our highest Court must answer with a resounding, “No.”
Importantly, the Colorado Sheriffs note in response to the June 26 decision in their case that, “Today was only the first round in the case, not the last. Otis McDonald, Dick Heller, and other Second Amendment plaintiffs didn’t win their first rounds in the district court. They did win at the end of their appeals. We are ready to present our case to the higher court that will make the final decision.”
I look forward to attorneys Michel and Kopel, and their plaintiffs, winning where it counts.
Brandon Combs is the Managing Director of the Firearms Policy Coalition, Executive Director and Secretary of the Calguns Foundation, President of California Association of Federal Firearms Licensees, and a proud law-abiding gun owner. When he’s not working to advance Constitutional rights and individual liberty causes, he enjoys spending time with his Akita, Holly, and traveling.