Sunday, November 22, 2009

Epstein on Easterbrook's Incorporation Case

Richard Epstein (Chicago, Hoover Institution, and NYU) recently posted on SSRN a critique of Judge Easterbrook's decision in NRA v. City of Chicago, the Seventh Circuit case rejecting Second Amendment incorporation.  (The case is now at the Supreme Court, captioned McDonald v. City of Chicago.)  Epstein's essay, NRA v. City of Chicago: Does the Second Amendment Bind Frank Easterbrook?, is a fine deconstruction of Judge Easterbrook's opinion with thoughts about the appropriate role of an appellate court judge in an area where aged Supreme Court precedents, still on the books, are long overdue for reconsideration.

Epstein compares Judge Easterbrook's short, direct opinion with Judge O'Scannlain's much lengthier, more historically grounded analysis in Nordyke v. King, the Ninth Circuit case that ruled the Second Amendment incorporated against the states.  Easterbrook was motivated by judicial restraint and the circuit court's role in (not) making constitutional law; he therefore passed on the substantive incorporation question, leaving that to the Supreme Court.  O'Scannlain, in contrast, engaged the incorporation question, reviewing the history and dodging The Slaughterhouse Cases, U.S. v. Cruikshank, and Presser v. Illinois on his way to ruling the Second Amendment incorporated against the states.  Epstein:

Easterbrook's approach emphasized the imperative need for lower court deference to the Supreme Court's explicit Reconstruction Era holdings that the Second Amendment does not bind the states . . . .  On balance it appears that Easterbrook is against incorporation on a variety of historical and federalism grounds, none of which are likely to prevail when the Supreme Court addresses the issue of incorporation when it hears the case later in the 2009 October Term.

How would Epstein have had Easterbrook rule?  Epstein:

The better approach by far is to take your best shot on the issue, and leave it for the Supreme Court to decide whether you have misspoken.

Ironically, Judge Easterbrook should have followed the Posner strategy in Khanby first announcing that he would deny incorporation, and then offering his complete analysis of the case on the merits.  Half measures don't work.  The Supreme Court would have been ideally positioned to decide this case if Judge Easterbrook had decided to join issue by taking on Judge O'Scannlain's decision in Nordyke.  The lesson of NRA is to beware of a half-hearted commitment to judicial restraint.


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