O'Scannlain: A Judge to Measure Judges

On July 24, 2018, federal 9th Circuit (Circus) Court judge Diarmuid O'Scannlain published his opinion for the 2-1 majority of a three-judge panel of the 9th Circuit Court in the case of Young v. State of Hawaii, United States Ninth Circuit United States Ninth Circuit No. 12-17808 that struck down Hawaii law and ruled that a citizen has the right to open carry a sidearm for personal protection and defense outside the home.   His opinion confirmed the intent of the 2nd Amendment of the U.S. constitution: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

After an exhaustive and thorough rebuttal of all arguments presented by the dissenting judge, the opinion by O'Scannlain reads:

But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense.  We would thus flout the Constitution if we were to hold that, "in regulating the manner of bearing arms, the authority of [the State] has no other limit than its own discretion.

The news of the Young opinion rekindled my memories of Diarmuid O'Scannlain, an icon – insightful, eloquent, sensible, conservative.  In January of 2017, two former O'Scannlain law clerks wrote a tribute to him in National Review on the occasion of his decision to take senior status on the 9th Circuit.  The author-attorneys, who were his clerks and knew him well, said:

Judge O'Scannlain has participated in more than 10,000 cases and written hundreds of published decisions, concurrences, and dissents.  In vivid prose, those opinions reflect a careful respect for the limited scope of judicial power in a democracy.

Many of Judge O'Scannlain's opinions, including his dissents, pointed out when the Ninth Circuit veered from Supreme Court precedent.  Indeed, Judge O'Scannlain dissents included footnotes that sent messages to the Supreme Court on the latest 9th circuit departure from sensible interpretation of the law and constitution.  

Judge O'Scannlain's high rate of Supreme Court affirmations and concurrences is well known.  SCOTUS has agreed with O'Scannlain  much more often than with any of his colleagues of the 9th Circuit during his active service – but that pride is consistent with his advocacy of the restrained role appellate judges must play in the judicial system.  In one dissent, he pointed out that the 9th was in conflict with the 6th Circuit in what is called by commentators an O'Scannlain "dissental":

"Circuit split" perhaps does not fully describe the resulting state of affairs.  It is more like we have spun out of the known legal universe and are now orbiting alone in some cold, dark corner of a far-off galaxy, where no one can hear the scream "separation of powers."

A native of New York City, O'Scannlain earned his B.A. from St. John's University in 1957, his J.D. from Harvard Law School in 1963, and his LLM from the University of Virginia School of Law in 1992.  He served in the U.S. Army as an attorney in the JAG Corps from 1955 to 1978.

Judge O'Scannlain was nominated by President Reagan and approved for the Ninth U.S. Federal Circuit Bench in 1986.  He elected senior status (decreased workload) in December of 2017.  He is widely recognized as a brilliant legal analyst and writer, courtly and polite to all – a judge's judge.  

He is a traditionalist and considers natural law an important factor in his work as a close reader of the U.S. Constitution, asserting the importance of a limited government of enumerated powers by consent of the governed, with separation of powers and a federal structure that assures a balance between national and state sovereignty.  

O'Scannlain on redefining marriage

O'Scannlain's dissent on the redefinition of marriage pointed out that the Supreme Court had already denied hearing in the case of Baker v. Nelson in 1971 that challenged a Minnesota law that declared marriage as between a man and a woman.  No provisions in the constitution or previous law allowed for an attempt to redefine marriage to include same-sex couples.   

O'Scannlain on interpreting laws and statutes

Judge O'Scannlain opined in a criminal marijuana case for the unanimous panel that judges should read the text of a law and not search for an opportunity to "find congressional intent, or impose a judicial preference."  He condemned the tendency of judges to find "meaning" that corresponds to their preferences and jump at the opportunity to be grand legislators.

O'Scannlain on natural law principles

O'Scannlain lectured on "Natural Law and American Tradition" (2011) at a colloquium on natural law at the Fordham School of Law and provided his in-depth and insightful analysis of how judges must respect the laws and be humble in their efforts to impose their understanding of what's right, even their efforts to impose their preferences on natural law. 

So, we find the natural law under attack from both sides. To the left, it is an invention of mystics and religious conservatives. To the right, it is a dangerous invitation for judges to impose their own sense of justice on the country. ...

I believe that, in many important respects, the natural law is woven into the fabric of the Constitution, and, therefore, is relevant to originalist constitutional interpretation.

The Declaration explicitly appeals to the natural law.  ... "[W]e hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." ...  

When it came to writing a Constitution, the Framers aimed to create a positive law that would protect pre-existing natural rights. ... [T]he very purpose of civilian governments was to protect natural rights[.] [Emphasis added.]

The freedom of the press also derived from the natural right to speak, to write, and to publish one's thoughts.

And the freedom of assembly was derived from the natural right to associate with other human beings[.]

To make the point more formally, natural law is by its nature a moral law accessible to all human beings through reason.

I will leave it to the reader to consider: how is it that federal judges legislate by fiat and court orders all kinds of preferences and policy positions, collude with federal agencies on policy matters, ignoring the clear cut authority of the congress to write the laws, exercising judicial power that invades executive power?

In his Joseph Story (Supreme Court justice, 1811-45, and respected legal scholar) Memorial Lecture, February 3, 2014 at the Heritage Foundation, "Natural Law and Modern Jurisprudence," Judge O'Scannlain discussed natural law principles.

The modern idea of a malleable and socially constructed human nature is alien to Story, his view of man's nature was cast aside by our own Supreme Court as it exited the 20th century and entered the 21st. How different our constitutional jurisprudence would be today had this not been so.

The 1992 case Planned Parenthood v. Casey

Its implications are profound, because if the law cannot protect an objective view of human nature, it necessarily protects a subjective one. Casey thus places a malleable conception of human nature at the heart of the liberty protected by our Constitution.

Lawrence v Texas, the sodomy case

Story chose to illustrate the connection between natural law and positive law was marriage. ...  Having adopted the subjectivist assumptions of Casey, Lawrence extends them to protect a relativistic conception of human sexuality.

On the question of same-sex marriage in United States v. Windsor

Windsor says that the conjugal view has been discarded by some states in favor of "a new perspective, a new insight," and that these states had "enlarge[d] the definition of marriage."  But if marriage has a fixed meaning derived from man's nature, then it cannot be "enlarge[d]."

Justice Joseph Story poses a similar challenge to us. We must ask whether the denial of our past is the denial of ourselves. We must ask whether the abolition of nature is the abolition of man. I leave the answers to these questions to your own reflections.

Heller and the 2nd Amendment.

Thus, to the Heller Court, although the need to protect militias was the reason that the natural right to bear arms had to be codified, it was not the primary purpose of the underlying natural law right; self-defense was[.]

O'Scannlain on religious freedom, from "Religion and the Courts in the 21st Century," a speech for the Board of Governors Retreat, Thomas Aquinas College, October 28, 2017 (emphasis added):

The bitterness of our current religious-freedom debates struck particularly close to home for me, as a federal judge, just a couple months ago during the Senate Judiciary Committee hearing over the nomination of Notre Dame Law Professor Amy Barrett to the Seventh Circuit Court of Appeals. ... Professor Barrett appears to have committed a grave sin in these anti- religious times: she is, proudly and publicly, a devout Catholic. I am, too, of course, as are many other federal judges, but most of us had the good fortune to come onto the bench at a time when our identity as such was not deemed worthy of front-page news.

The role of religion in public life is, dare I say, of urgent current concern. ... The debates are pervasive, and I am struck by their strident – often, quite nasty – tone.

In Obergefell v. Hodges, a five-Justice majority of the Court held that the United States Constitution includes a fundamental right to same-sex marriage. For those, like myself, who subscribe to an originalist understanding of our Constitution, this was a startling proclamation of an unenumerated – and previously unheard of – right[.]

If I were making federal judges in my garage, I would certainly consider making a Diarmuid O'Scannlain model and stamping out about 200 for a first run.  Great man, great judge, scholarly, well read, big brain, proper judicial temperament, the right attitude and mindset.

John Dale Dunn is an emergency physician and inactive attorney in Brownwood, Texas.

On July 24, 2018, federal 9th Circuit (Circus) Court judge Diarmuid O'Scannlain published his opinion for the 2-1 majority of a three-judge panel of the 9th Circuit Court in the case of Young v. State of Hawaii, United States Ninth Circuit United States Ninth Circuit No. 12-17808 that struck down Hawaii law and ruled that a citizen has the right to open carry a sidearm for personal protection and defense outside the home.   His opinion confirmed the intent of the 2nd Amendment of the U.S. constitution: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

After an exhaustive and thorough rebuttal of all arguments presented by the dissenting judge, the opinion by O'Scannlain reads:

But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense.  We would thus flout the Constitution if we were to hold that, "in regulating the manner of bearing arms, the authority of [the State] has no other limit than its own discretion.

The news of the Young opinion rekindled my memories of Diarmuid O'Scannlain, an icon – insightful, eloquent, sensible, conservative.  In January of 2017, two former O'Scannlain law clerks wrote a tribute to him in National Review on the occasion of his decision to take senior status on the 9th Circuit.  The author-attorneys, who were his clerks and knew him well, said:

Judge O'Scannlain has participated in more than 10,000 cases and written hundreds of published decisions, concurrences, and dissents.  In vivid prose, those opinions reflect a careful respect for the limited scope of judicial power in a democracy.

Many of Judge O'Scannlain's opinions, including his dissents, pointed out when the Ninth Circuit veered from Supreme Court precedent.  Indeed, Judge O'Scannlain dissents included footnotes that sent messages to the Supreme Court on the latest 9th circuit departure from sensible interpretation of the law and constitution.  

Judge O'Scannlain's high rate of Supreme Court affirmations and concurrences is well known.  SCOTUS has agreed with O'Scannlain  much more often than with any of his colleagues of the 9th Circuit during his active service – but that pride is consistent with his advocacy of the restrained role appellate judges must play in the judicial system.  In one dissent, he pointed out that the 9th was in conflict with the 6th Circuit in what is called by commentators an O'Scannlain "dissental":

"Circuit split" perhaps does not fully describe the resulting state of affairs.  It is more like we have spun out of the known legal universe and are now orbiting alone in some cold, dark corner of a far-off galaxy, where no one can hear the scream "separation of powers."

A native of New York City, O'Scannlain earned his B.A. from St. John's University in 1957, his J.D. from Harvard Law School in 1963, and his LLM from the University of Virginia School of Law in 1992.  He served in the U.S. Army as an attorney in the JAG Corps from 1955 to 1978.

Judge O'Scannlain was nominated by President Reagan and approved for the Ninth U.S. Federal Circuit Bench in 1986.  He elected senior status (decreased workload) in December of 2017.  He is widely recognized as a brilliant legal analyst and writer, courtly and polite to all – a judge's judge.  

He is a traditionalist and considers natural law an important factor in his work as a close reader of the U.S. Constitution, asserting the importance of a limited government of enumerated powers by consent of the governed, with separation of powers and a federal structure that assures a balance between national and state sovereignty.  

O'Scannlain on redefining marriage

O'Scannlain's dissent on the redefinition of marriage pointed out that the Supreme Court had already denied hearing in the case of Baker v. Nelson in 1971 that challenged a Minnesota law that declared marriage as between a man and a woman.  No provisions in the constitution or previous law allowed for an attempt to redefine marriage to include same-sex couples.   

O'Scannlain on interpreting laws and statutes

Judge O'Scannlain opined in a criminal marijuana case for the unanimous panel that judges should read the text of a law and not search for an opportunity to "find congressional intent, or impose a judicial preference."  He condemned the tendency of judges to find "meaning" that corresponds to their preferences and jump at the opportunity to be grand legislators.

O'Scannlain on natural law principles

O'Scannlain lectured on "Natural Law and American Tradition" (2011) at a colloquium on natural law at the Fordham School of Law and provided his in-depth and insightful analysis of how judges must respect the laws and be humble in their efforts to impose their understanding of what's right, even their efforts to impose their preferences on natural law. 

So, we find the natural law under attack from both sides. To the left, it is an invention of mystics and religious conservatives. To the right, it is a dangerous invitation for judges to impose their own sense of justice on the country. ...

I believe that, in many important respects, the natural law is woven into the fabric of the Constitution, and, therefore, is relevant to originalist constitutional interpretation.

The Declaration explicitly appeals to the natural law.  ... "[W]e hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." ...  

When it came to writing a Constitution, the Framers aimed to create a positive law that would protect pre-existing natural rights. ... [T]he very purpose of civilian governments was to protect natural rights[.] [Emphasis added.]

The freedom of the press also derived from the natural right to speak, to write, and to publish one's thoughts.

And the freedom of assembly was derived from the natural right to associate with other human beings[.]

To make the point more formally, natural law is by its nature a moral law accessible to all human beings through reason.

I will leave it to the reader to consider: how is it that federal judges legislate by fiat and court orders all kinds of preferences and policy positions, collude with federal agencies on policy matters, ignoring the clear cut authority of the congress to write the laws, exercising judicial power that invades executive power?

In his Joseph Story (Supreme Court justice, 1811-45, and respected legal scholar) Memorial Lecture, February 3, 2014 at the Heritage Foundation, "Natural Law and Modern Jurisprudence," Judge O'Scannlain discussed natural law principles.

The modern idea of a malleable and socially constructed human nature is alien to Story, his view of man's nature was cast aside by our own Supreme Court as it exited the 20th century and entered the 21st. How different our constitutional jurisprudence would be today had this not been so.

The 1992 case Planned Parenthood v. Casey

Its implications are profound, because if the law cannot protect an objective view of human nature, it necessarily protects a subjective one. Casey thus places a malleable conception of human nature at the heart of the liberty protected by our Constitution.

Lawrence v Texas, the sodomy case

Story chose to illustrate the connection between natural law and positive law was marriage. ...  Having adopted the subjectivist assumptions of Casey, Lawrence extends them to protect a relativistic conception of human sexuality.

On the question of same-sex marriage in United States v. Windsor

Windsor says that the conjugal view has been discarded by some states in favor of "a new perspective, a new insight," and that these states had "enlarge[d] the definition of marriage."  But if marriage has a fixed meaning derived from man's nature, then it cannot be "enlarge[d]."

Justice Joseph Story poses a similar challenge to us. We must ask whether the denial of our past is the denial of ourselves. We must ask whether the abolition of nature is the abolition of man. I leave the answers to these questions to your own reflections.

Heller and the 2nd Amendment.

Thus, to the Heller Court, although the need to protect militias was the reason that the natural right to bear arms had to be codified, it was not the primary purpose of the underlying natural law right; self-defense was[.]

O'Scannlain on religious freedom, from "Religion and the Courts in the 21st Century," a speech for the Board of Governors Retreat, Thomas Aquinas College, October 28, 2017 (emphasis added):

The bitterness of our current religious-freedom debates struck particularly close to home for me, as a federal judge, just a couple months ago during the Senate Judiciary Committee hearing over the nomination of Notre Dame Law Professor Amy Barrett to the Seventh Circuit Court of Appeals. ... Professor Barrett appears to have committed a grave sin in these anti- religious times: she is, proudly and publicly, a devout Catholic. I am, too, of course, as are many other federal judges, but most of us had the good fortune to come onto the bench at a time when our identity as such was not deemed worthy of front-page news.

The role of religion in public life is, dare I say, of urgent current concern. ... The debates are pervasive, and I am struck by their strident – often, quite nasty – tone.

In Obergefell v. Hodges, a five-Justice majority of the Court held that the United States Constitution includes a fundamental right to same-sex marriage. For those, like myself, who subscribe to an originalist understanding of our Constitution, this was a startling proclamation of an unenumerated – and previously unheard of – right[.]

If I were making federal judges in my garage, I would certainly consider making a Diarmuid O'Scannlain model and stamping out about 200 for a first run.  Great man, great judge, scholarly, well read, big brain, proper judicial temperament, the right attitude and mindset.

John Dale Dunn is an emergency physician and inactive attorney in Brownwood, Texas.