Courts

Conservative Drags Right-Wing Legal Legend Because His Dad Was Murdered

Don't worry, it's just as monstrous as it sounds.

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Judge J. Michael Luttig (via YouTube)

Judge J. Michael Luttig was one of the most conservative voices on the federal judiciary. His jurisprudence was rated “consistently conservative” by an early 2000s study conducted by political scientists, placing him somewhere between Attila the Hun and J. Harvie Wilkinson III. In fact, when John Roberts was ultimately appointed to the Supreme Court, conservatives were none too happy that Bush had overlooked the more reliably conservative Luttig.

Which is all to say that when Luttig, who left the judiciary in 2006, weighs in on a legal issue, he’s not coming at it as a firebrand liberal. He puts on his Chick-fil-A bib with two hands just like the rest of them.

Luttig joined with Sidley’s Carter Phillips, and former Acting AGs Peter Keisler (also of Sidley), Stuart Gerson (of Epstein Becker & Green), and 13 other prominent legal minds in an amicus brief supporting New York’s gun regulations in New York State Rifle & Pistol Association Inc. v. Bruen. The brief is, as one might expect from a conservative luminary, drenched in textual and originalist analysis. Part II is just a deep dive into the litany of Founding-era state laws regulating public gun possession putting the lie to the idea that the Second Amendment’s original public meaning signaled the Framers’ vision of America resembling a Fortnite arena.

A lot of people forget that the “original” sources conservative jurists have relied upon for the current gun regime were written over four score and seven years after the Founding. If you’re wondering why they settled on a body of not-so-original testimony, it’s because they really did look into the original public meaning of the Second Amendment and learned that the reality of that legitimate originalist inquiry offended GOP lobbyists.

But the amici remember:

The writings of some 19th-century lower court judges and commentators decades after 1791 do not, and must not be allowed to, supersede the democratic judgments and decisions embodied in these founding era statutory restrictions.

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Say what you will about interpreting the Constitution by channeling the ancients, at least it’s an ethos. For anyone who claims to adhere to an originalist judicial philosophy, this brief shouldn’t be controversial and — given the history clinic the authors put on — should force some frank concessions from conservatives over the meaning of the Second Amendment.

Just kidding, they’re just going to drag the amici for their parents getting killed by gun violence!

Marcia Coyle of the National Law Journal wrote of the brief, “also on the brief is former Judge J. Michael Luttig of the U.S. Court of Appeals for the Fourth Circuit. Gun violence touched his family in 1994 when his father, John Luttig, was fatally shot in a carjacking.”

In response, Josh Blackman took to the Volokh Conspiracy to write:

The implication here is that their legal views on the Second Amendment were affected by their personal experiences. On balance, I think this interview reduces the effectiveness of the brief.

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Yeah, the fact that his dad was killed is definitely why Virginia and Massachusetts had laws banning public carry in the 1790s. This isn’t some Brandeis brief citing gun violence statistics, it’s an exploration of the original public meaning of the Second Amendment that finds, completely unsurprisingly, that the one pushed by the gun lobby is ahistorical nonsense like another staunch conservative pointed out years ago.

Before we get any further, let’s dispense with the inevitable weak sauce response: “well, Joe, this isn’t really ‘dragging’ Judge Luttig because of his father’s killing.” Yes it is. The post says the Luttig’s legal analysis is now suspect because of what happened to his father. How is that anything but an attack on him as a lawyer based on his personal life? An aspersion that his lived experience makes him bad at evaluating the law?

The idea that society is governed by law and not passion means legal arguments beat emotions, not that living outside a hermetic bubble renders all legal analysis void. That gun violence prompted his research doesn’t invalidate that research. This is just a sly ad hominem that the only “real” gun arguments can come from people who’ve never even tangentially run afoul of a firearm. Which certainly tracks because this is the same movement that thinks the only real voting rights arguments can come from people who’ve never been denied a ballot and the only real women’s health arguments can come from people who’ve never had a vagina.

But that’s all these FedSoc guys have. As the brief explains:

Petitioners do not cite a single item of persuasive contrary founding era evidence that counters the historical support for public-carry restrictions provided by the founding era statutes. They do not cite anyone or any source that contemporaneously opposed or even criticized any founding era statutory restriction as infringing the right to carry. Neither do they cite any proponent or opponent stating that the Second Amendment was codifying a right that would nullify any existing or prior statutory restriction in any state or city. Nor do they cite a state constitutional provision from the founding era that nullified such a restriction. This silence in the face of these founding era proscriptions and limitations confirms that carrying loaded guns in most public places was not a matter of right, but rather was a matter intended by the Framers to be left for debate and decision within the legislative arena.

This isn’t even touching the textualist point that the contrary view pushed by the right-wing renders “well-regulated” superfluous. In any actual legal discussion the gun lobby has bupkis.

But they’ve got 6 partisan hacks and that’s enough.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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