Strategic uses of constitutional originalism by conservatives in US gun politics and beyond

ABSTRACT

Political scientists have increasingly operationalised ‘Discourse’ as a means through which actors promote their interests. Building on Plehwe (2011, 2014) and Hajer’s (1995, 2006) concept of discourse coalition theory, I explore how actors promote their interests via discourse. I do this through the case of constitutional originalism: the interpretation of the US Constitution in according to its historical provisions, viewing citizens’ rights as determined at the point of its drafting, irrespective of revisions appropriate to modern society. Such a view has become a mainstream philosophy. I show constitutional originalism’s strategic utility for conservatives, as a study of shared ‘flexible discourse’ through which multiple actors pursue differing objectives. In short, actors us the same idea differently and this ‘quid pro quo’ entrenches both the narrative and establishes actors’ goals. This question is the notion that ideology is a coherent thing: rather, it is a convenience that is strategically deployed by different members of the coalition. I develop the framework of Flexible Discourse Theory to this end. ‘Discourse’ is a strategic tool allowing for strength in number, fortifying individual groups’ pursuit of their political ends and the political vehicle which allows differing value sets to be pursued. It is also a means through which diverse coalitions can be built, in which mediating discourses are compatible with diverse values and do not fall between blocs’ ideological faultlines. Flexible discourses’ strategic utility is an important story of political bloc and coalition formation. It elucidates the role of ideation as a deployable tool, through which coalitions are maintained. I explore this theory by analysing constitutional originalism’s political uses for the American right, in the victory case for originalism, D.C. v. Heller (2008) on Second Amendment rights, and how this strategy is deployed towards a variety of other political stances. In brief, this is a study of how actors use ideology strategically and instrumentally to realise their interests.

KEYWORDS:

• Flexible discourse
• discourse coalition theory
• strategic behaviour
• coalition formation
• strategic utility
• gun politics
• constitutional originalism
• ideational tools
• political behaviour
• political communication

1. Introduction

Political scientists have operationalised the concept of discourse since the 1990s to explain how political actors maximise their intended outcomes and reframe arguments in their favour (see Narrative Policy Framework by Merry 2018; Jones and McBeth 2014, 2015 on institutional agenda-setting). However, the explanatory power of discourse for coalition-building can be expanded. Specifically, how can discourse be utilised to strategic ends and how does this alter our understanding of co-operative behaviour in ideational coalitions? In this paper, I analyse the political uses of constitutional originalism, an ideological form of constitutional interpretation among conservatives in the United States – which interprets their codified constitution in terms of its original provisions and/or intent, which precludes many modern social-civic rights – to develop a theory of discourse, strategic behaviour and coalition formation. I generate a complementary framework to build on discourse coalition theory (Hajer 1995, 2006; Plehwe 2011, 201) via a new framework I propose – Flexible Discourse Theory – to illustrate how political arguments can be deployed as ideational tools that maintain diverse, informal coalitions. By utilising shared discourses that can be used flexibly towards multiple differential objectives, groups maximise their advantage. This collective strategy strengthens political action for the constituent actors, optimises outcomes for the issue and maintains viable coalitions.¹ ‘Trojan horse issues’ can therefore be said to play a role in each part of this coalition-building. In this way, discourse (the dissemination of ideas via use of argumentation) results less from the persuasive capacity of ideas as from their political utility. The emergent result of this is the maintenance of large coalitions that collectively act while pursuing different goals through a convenient political narrative. ‘Discourse’, in sum, is a strategic tool. The use value of discourse for political ends and the maintenance of coalitional blocs adds a new dimension to the study of ‘Discourse’ as a mode of political strategising and to the role of communications in political behaviour.

I develop this theoretical contribution via a focused study of interest group behaviour using gun rights discourse at the US Supreme Court, as a meso-level institution and measurable context for informal coalition-building. Using qualitative content analysis of groups’ amicus curiae (‘friends of the court’) briefs in the landmark Supreme Court case of D.C. v Heller (2008), I argue that actors’ sharing a flexible discourse about gun rights is a strategic vehicle through which these diverse groups pursue differing constituent priorities while maintaining coalition. These twin analytical insights of gun rights’ discursive flexibility and its related capacity to realise groups’ ‘real’ priorities are mechanisms that sustain ideationally broad coalitions. Gun rights is a salient case to explore this concept of flexibility as a facilitator of strategic behaviour; it is a standard-bearer for conservatism, ranking among the most partisan issues in US politics (Pew Research 2021). It also comprises a wide range of discursive strategies for multiple types of actor. Guns are utilised to convey polyvalent arguments from small state politics to traditional values. As such, it constitutes a prime example of a political issue that presents the characteristics of flexible discourse, which gives a window on how large coalitions can be maintained through strategic deployment of the same discourse to different ends. Flexible discourses, like constitutional originalism (a conservative mode of American jurisprudence deployed to pragmatic political ends), cover all manner of sins. My overarching contribution today is on strategic behaviour using discourse, that allows actors in coalition to achieve differential goals through unified action.

In addition to explaining a general mode of rational-instrumentalist behaviour and the intersection of strategy and discourse, this study also generates an explanation of the American right’s success. Why conservatives (the ‘conservative coalition’) co-operate amid ideational differences is a debate among historical institutionalists (Phillips-Fein 2011; Teles 2008; Zelizer 2010). The literature explains this via an overarching ideational consensus uniting diverse parties. I depart from this and propose a multi-faceted set of mechanisms summated by the role of mutually convenient strategy. Strategic uses of discourse result in an emergent coalition, whose ideological diversity is accommodated by mutually advantageous discursive tools which maximise collective weight while appeasing a broad set of goals. This is precisely why ‘flexible discourse’ has explanatory power, as a communications theory of political behaviour (the role of framing and strategic decision-making). While there may be points of commonality, it is incorrect to identify conservative support for guns among interest groups as ideological cohesion. The micro-targeting of different goals as seen in the data shows this. Guns provide a counterintuitive example of an on-brand political issue whose value to conservative supporters is pragmatic, not one formed by underlying ideological coherence. Indeed, ‘ideology’ is not an internally coherent explanation for political preferences; in this case, it is a fig leaf concealing other motivations for apparently ideational attachments. Ideological explanations contain the assumption that actors possess ideology; that such a thing as ‘ideology’ exists without having to prove it or nest it into its constitutive, more tangible parts. I make no such assumptions.

In sum, this paper addresses how far discourse is a mechanism enabling cohesion between diverse actors in conservative litigation at the US Supreme Court. Its animating puzzle is: how, despite ideational differences, do conservative interest groups come together in shared action in pursuit of gun rights? The research question asks: how in the landmark Supreme Court (SCOTUS) case of D.C. versus Heller (2008), a variety of conservative interest groups with different, and even dissonant, first principles come together in support of gun rights. The subject of inquiry is the mechanism that sustains broad support for gun rights. This inquiry is explanatory of the broad appeal of gun rights among conservatives, and therefore engages with how conservatives co-operate amid ideational differences, to identify generalisable mechanisms in coalitions of diverse actors. I propose that sharing a flexible discourse is an explanatory mechanism of coalition among diverse groups, through which groups retain their distinctive ideational goals whilst sustaining discursive unity. I develop this theoretical observation through an inductive discourse analysis of the conservative interest groups who submitted amicus curiae briefs in the landmark Supreme Court case of D.C. versus Heller (2008).

I find that the participating conservative interest groups pursue differing objectives in supporting gun rights. Constitutional originalism² is a shared discourse whose flexibility allows it to be invoked by actors with distinctive and at times dissonant values. I find that this common refrain accommodates diverse issues within the single issue. I also find evidence that gun rights possesses a particular rhetorical and ideational flexibility for conservative actors. In other words, gun rights’ flexibility as an issue is a key mechanism sustaining broad coalition of conservative interest groups. I unexpectedly find a lack of direct investment in gun rights among two key actors (at Cato Institute and Institute for Justice) who funded and litigated for gun rights in Heller. From this, one can infer that the groups utilised the issue as a vehicle for their main ideational objectives. In this instance, gun narratives provide an adaptive discursive vehicle rather than a shared ideational framework. This is explanatory of guns’ diverse support in this consequential, landmark case. It also provides a promising explanation of guns’ diverse appeal on the right more generalisably. Furthermore, it may provide a generalisable theoretical mechanism of coalition: i.e. that groups may unify in shared action by combining outward cohesion while retaining ideational differences.

This study suggests that co-ordination constitutes a better explanatory model of interest group coalition than shared values in this instance. Co-ordination and shared values are competing models of coalitional behaviour (Hardin 1982; Parsons 2007). My results yield the general theoretical insight that discursive props, deployed commonly among diverse actors, sustain coalitions in lieu of exact ideational alignment. Discourse must be given sufficient recognition as a mechanism. Using the particularistic dynamics of the Conservative Legal Movement as a case study, these results suggest that instrumental narratives may sustain its ideational breadth while retaining individual groups’ specific ideational agendas. This limits the extent to which values are a necessary binding agent, as discursive mechanisms circumvent this. This negates the necessity of ideational consensus, which is commonly postulated of conservative coalitions. While it appears necessary that a discursive locus, such as gun rights, be a neutral issue among actors so as not to create internal differences of opinion – which signifies ideational compatibility is a precondition for coalition – this constitutes a mechanism rather than ideational consensus. These findings also have the particularistic implication that constitutional originalist jurisprudence and narratives of the US Constitution can operate as discursive tropes, notwithstanding any attendant values-commitment to them.

Using an inductive method, this paper’s main question is: what is the mechanism for cohesion between diverse interest groups on the right? I identify discourse, specifically originalism, as the tools enabling this coalition to be maintained and find that it indicates a limited role of shared values in explaining cohesion between different conservative interest groups respectively. These are the two main contributions of this paper. More particularistically, I find that the Second Amendment is instrumentalised towards different primary value sets by conservative actors, and that there are differences in rationales and, accordingly, their apparent interests in gun rights between gun activist groups and conservative interest groups in Heller. This contributes to the existing work on originalism, such as that by Hollis-Brusky (2015). Where Hollis-Brusky explores the concept of ‘ideas with consequences’, I suggest here that the idea has an instrumental purpose. It thus contributes to the debate about the role of ideational factors in creating institutional outcomes. Here, discourse can be best understood through its functions in ensuring best outcomes for actors; its content is relevant insofar as it offers a tool which, when used by many actors, secures coalition within a large bloc. In addition to any outcomes gained for the issues (which it duly won for gun rights in the Heller case), the role of discourse in this case was salient in that it won the less obvious benefits for coalition cohesion. This offers a lesson in wider political action where discourse is concerned. Political discourse is not necessarily valuable to actors for its intrinsic merits, in other words, but also for its functional ones. This piece therefore makes a general insight, while offering specific contributions to the debate around the institutional impact of originalism within the conservative movement in the United States.

This paper is structured as follows. The following section briefly reviews existing literature on the questions of this research (both particularistic and general) and my theory of interest group coalition. The third section presents background on the cases, followed by research design outlining the sample selection and use of content analysis. I then present findings. First, it presents an inductive study of groups’ discourse in their amicus briefs. I then compare CIGs’ discourse to gun groups to make inferences about their commitment to guns and how uniquely their discourse is tailored to their ideational agenda. The final section of the analysis contrasts CIGs’ support for guns with the four groups of the sample who submitted briefs in the subsequent landmark case of Windsor (2013) and inductively compares the cohesive potential of gun issues among conservative groups to equal marriage rights. I then discuss the mechanism through which diverse groups sustain shared action while retaining their constituent ends, before concluding.

2. Coalition and discourse on the American right

There has been limited theorisation of discourse coalition theory with regard to its relevance to political behaviour. This paper proposes that discourse is a tool utilised by actors that results in binding coalitional action. While similar arguments have been made about the case of legal conservatism with regard to originalism in some respects (Hollis-Brusky 2015), I aim to develop a theory of political action in coalition using the aforementioned theoretical model and case. These wider insights are new contributions to the literature on discourse, and its relevance to coalition and political action.

2.1. The case of US gun politics

While gun politics since D.C. v Heller (2008) has been discussed regarding originalism’s relationship to the case (Cornell 2008, 2009; Lund 2009; Siegel 2008b, 2008b; M. P. O’Shea 2009; Walker 2008 on gun narratives around civil rights), originalism’s strategic uses have yet to be considered. Studies of modern American conservatism have established that its notion of particular civic rights entrench the movement at the grassroots, for example small state ideas (Cramer 2016; Deckman 2016; Horwitz and Anderson 2009; Smith 2007), but how discursive mechanisms cohere elite actors is less developed. The rise of originalism has been traced with that of the Federalist Society and conservative legal movement (Chemerinsky 2022; Hansford 2010; Teles 2008; Burgess 2016; Dudas 2016; see also Spitzer 2022) and how this found its apotheosis in the Heller case via gun politics (Neily 2010). Hollis-Brusky (2015) argues that the conservative interpretation of the Constitution at the heart of the Federalist Society became a unifying ethos for legal conservatives which became embedded within conservatism and Republicanism (see also Mirowski and Plehwe 2015). Chemerinsky (2022) purports that originalism is the dominant school of jurisprudence among conservatives and, indeed, at the Supreme Court today; under the current tenure of the justices, originalism dominates over Living Document Theory, the notion that the codified American constitution sits in dialogue with modern social developments. Despite this, there remains ample room to draw general insight about the function of discourse with regard to coalition formation and maintenance (Sabatier, 1998), as well as its specific discourses’ strategic appeal to realising multiple ends via one narrative. How discourse (best defined as arguments that frame interests) have a functional role in establishing informal coalition formations can be better determined.

Research has shown the strategic dynamics of interest group participation at the Supreme Court. Hollis-Brusky and Wilson (2017) show that New Christian Right (NCR) amici participate in secular Supreme Court cases to strategically pursue their constituent goals (see also Aydın-Çakır 2014). Hansford, 2010, 2008) show the importance of networks to communicating ideas within conservative legal circles (also Fowler et al. 2007; Jackson 2008). While these studies provide salient insights to what motivates and facilitates conservative litigation, there is as yet no study on the theoretical mechanisms enabling cohesion amid values-difference in this literature and explanations of coalition formation among amici are scarce (Collins 2017; Epstein and Lindquist 2017).

While Second Amendment litigation is not necessarily representative of all conservative behaviour, it gives insight into conservative litigation broadly, specifically the role of values in coalitional dynamics. Its elements of anomalousness also explicate the importance of issue selection for discursive alignment. The Second Amendment is not substantively discussed in conservative litigation literature; nor is Heller notwithstanding its importance as a landmark victory for the right and originalism (Neily 2010). Political studies of the Second Amendment are also scarce. Recent studies include Lacombe who shows the importance of group identity as an ‘ideational resource’ to the National Rifle Association’s (NRA) preponderance (2019, 1344). Merry (2018) also demonstrates the NRA’s use of narrative on social media and has advanced the idea of narrative strategies framing gun politics, utilised mostly by pro-gun groups. Goss (2006) has also argued for the importance of narrative in framing gun politics. These studies contribute insights to groups’ use of discourse to generate political and social capital. Thus far this research has concentrated on gun advocacy groups. Other kinds of interest groups, such as think tanks and those who, unlike the NRA, do not focus on a single issue, are less studied in relation to this subject. Here, I broaden to focusing on generalist conservative interest groups. This paper in part compares how groups’ interests in this issue differ from gun groups; a hitherto-overlooked question which pertains more broadly to how political issues may be instrumentalised or reconfigured by agents. It also uses the distinctive tool of ‘discourse’ as well as offering a distinct framework. In doing so, this adds a theoretical dimension to the gun literature in considering mechanisms versus values, which is not raised in the aforementioned studies.

In this case, there is the implicit puzzle of how diverse groups converge in the ‘broad church’ of American conservatism. Phillips-Fein (2011) and Zelizer (2010) argue that a key question in this literature is how conflicting first principles of differing groups have been aligned (Phillips-Fein 2011, 735) which ‘entail[s] a study about how the Right built coalitions’ (Zelizer 2010, 388). So far, this question has been answered with ideational explanations (Dionne 2004; Hodgson 1996; McGirr 2001; Sager 2006; Young 2016). The preponderant factor considered has been an ideational silver bullet (for example, anticommunism for McGirr 2001). There is no explicit debate around the mechanisms enabling cohesion and the analytical question of whether ideational unity is the factor that coheres actors. This literature obliquely discusses outward constraints that historically catalysed cohesion between diverse conservative actors: for example, the dominance of liberalism which incentivised greater co-operation (Zelizer 2010, 388), or legal liberalism catalysing a backlash manifesting in legal conservatism (Teles 2008, 4). However, this literature focuses on the origins of the conservative movements and lacks substantive assessments of the mechanisms in specific instances of coalition. Where the role of strategy and co-ordination is implied (see Dionne 2004 on conservative coalitions as a marriage of convenience), these explanations are not explicit nor theoretically-grounded. The Conservative Legal Movement (CLM) (also referred to as, ‘legal conservatism’) can help uncover insights into coalitional behaviour around discourse, as it is comprised of a variety of diverse actors.

Coverage of originalism in conservative studies literature is also scant. Teles’ book on the Conservative Legal Movement alludes to its inception and dissemination in conservative legal circles (2008, 145). However, originalism has not yet been theorised or identified as a discursive mechanism through which coalitions and individual groups realise goals. This paper’s findings identify originalism as the connective tissue of shared conservative discourse in this case study. It is the first study to identify its enabling function in conservative coalitions.

This phenomenon of gun politics’ broad appeal, as a synecdoche of American conservatism, offers generalisable insight into which subjects unite diverse ideational types and how. This is relevant to the Conservative Legal Movement. While I employ a constructivist epistemology, recognising the culturally embedded capacities of specific discourses, the theoretical insight of the cohering capacity of flexible discourse has clear general applications. This case of gun politics among conservatives is relevant to the subject of of ideational coalition and how it is maintained.

2.2. Discourse coalition theory

The critical key framework used in this paper is Flexible Discourse Theory (FDT), a novel theory developed in this research, as outlined above. This builds upon related theory in the field. This paper’s engagement with theoretical questions of coalitions yields a tertiary contribution to the dispersed literature on interest group coalition,³ and interest group theory and theoretical uses of discourse.⁴ Discourse Coalition Theory (DCT) (Hajer 1995, 1996, 2006, see; Hajer 1993a on discourse coalitions in relation to New Institutionalism; see Olsen, 2001, Plehwe 2011, 2014, see; Parrilla, Almiron, and Xifra 2016 for an overview of interest group theory) is a sociological critical approach, developed to explain transnational change, which has been applied to think tanks (Pautz 2011).⁵ Plehwe, who developed this approach, defines discourse coalitions as, ‘social forces acting jointly, though not necessarily in direct interaction, in pursuit of a common goal’ (2011, 130). This renders redundant the need for direct co-ordination, information of which is limited in this study but whose presence main actors confirmed in first-hand interviews (2021). This paper parenthetically contributes a case study in support of this theoretical approach to shared action.

2.3. My definition of coalition

This paper observes a phenomenon of de facto, or informal, coalition. It defines coalition here as the simultaneous support among diverse parties. It does not define direct co-ordination as a prerequisite. This definition of coalition is distinct from de jure, or formal, coalition. This paper maintains that active co-ordination is incidental to the phenomenon of shared action.

While interviews with Levy and Neily yielded significant anecdotal evidence of active co-ordination, irrespective of whether active co-ordination occurred, this study focuses on the dynamics of discursive cohesion itself, not the means of its production. There is de facto coalition, regardless of whether parties intended or actively sought this (notwithstanding the evidence that there was indeed active participation). DCT does not stipulate active co-ordination as a condition of coalition (Plehwe 2011, 130). Discourse, and its capacity to be transmitted unintentionally, makes active co-ordination superfluous. This study defines cohesion and coalition between actors according to Plehwe: ‘social forces acting jointly, though not necessarily in direct interaction, [emphasis added] in pursuit of a common goal’ (2011, 130). What constitutes cohesion in this sample is alignment in arguments, rationales and language towards this goal.

This paper asks the extent to which these traits (constituting ‘discourse’) are a co-ordinative mechanism and how far shared values account for it. This paper defines ‘shared values’ as being the same ideational content between actors. Values that may overlap or be compatible but are distinct and have different emphases cannot be defined thus. This paper’s inquiry is not actors’ intentions or motivations (i.e. whether they act out of ideational commitment), though the role of strategy and teleological behaviour is parenthetically addressed.

2.4. Values

This paper ascribes the paradigm of ‘values’ to this study of interest group coalition. The term ‘value set’ designates one’s worldview, measures of political actions’ worth and desirable outcomes (Inglehart and Klingemann 1979, 207; van Deth 1984, 1995). The concept is not consistently defined as an explanatory construct in political studies (Halman 2009) and, like discursive definitions, can be sticky. However, the concept is illuminating because it relates to one of four key analytical models explaining collective action: values-sharing (Hardin 1982; see; Parsons 2007 and his four models of causation in politics: respectively, structural, institutional, ideational and psychological). The inquiry of this paper is not the causal role of values in action: rather, it is how far discursive flexibility explains the shared action of diverse groups and the diverse appeal of the issue in question (gun rights). ‘Value sets’ is an appropriate paradigm used in this paper. The concept of values has been discussed in relation to coalition formation by Sabatier and Jenkins-Smith under Advocacy Coalition Framework, which proposes that groups come together to achieve shared beliefs and coalitions emerge in pursuit of a collective goal established by these frames. Coalition-building and maintenance thus depends, within this framework, on values alignment. However, this model proposes that values are, in this sense, ‘real’, or intrinsic motivators. My novel contribution is to develop the role of strategic discourse in relation to coalitional behaviour, and moves towards the idea of instrumental behaviour in relation to ideation.⁶

Not all groups promulgate systematised ideologies or possess intellectual frameworks like Cato and IJ. The third ideational category in my typology of the sample (below (iii. Social-Institutional Conservative) is the most nebulous. Disentangling the synthetic (policy agendas) from the ideational is necessarily challenging; for example, some groups (American Center for Law and Justice (ACLJ) (see ‘Amicus Curiae’ in Section 4 and Online Appendix A for a list of acronyms of the sampled’ groups names) (a New Christian Right Public Interest Law Firm (NCR PILF); see Hollis-Brusky and Wilson (2017) and Heartland Institute (a category ii. Free Market think tank) (see Section 4) promulgate legal and policy objectives more than explicit values. Reducing ideational inputs to ‘value sets’ creates a common measure of the ideational content of the sampled groups.

3. Case study: gun politics at the US supreme court

3.1. Case study: D.C. v Heller (2008)

The landmark Supreme Court ruling of District of Columbia v Heller (§554 U.S. 570) (2008) is a prime case study for interest group coalition on the right. The most recent Second Amendment SCOTUS case since Miller (1939), it is cited as one of the most consequential Supreme Court rulings on the Second Amendment, establishing for the first time in federal law the individual’s right to keep a handgun in the home (Neily 2010; M. O’Shea 2009; Wilkinson 2009, 254). The case involved the plaintiff, Dick Anthony Heller, who was handpicked by Cato and IJ staff led by Robert Levy at Cato Institute and Clark Neily at Institute for Justice during the Heller case and now at Cato Institute.⁷ Heller had been denied a licence to possess a handgun (Duigan 2023), and sought to overturn the 1975 D.C. ordinance (‘Firearms Control Regulation Act’) restricting handgun ownership and requiring existing arms be kept under lock and key. Heller emerged in the case of Parker v. District of Columbia in 2003 at the U.S. District Court in Washington, D.C (Duigan 2023). On 26 June 2008, the Supreme Court upheld the appellate court’s ruling in a 5–4 ruling and ‘endorsed the so-called “individual-right” theory of the Second Amendment[…]’ (Duigan 2023). The majority opinion was authored by Antonin Scalia, and dissenting opinions included those of Justice John Paul Stevens and Stephen Breyer (Duigan 2023). As a question of constitutional interpretation, these opinions addressed the meaning of the Second Amendment, the right of individuals to possess firearms, and whether the Second Amendment circumscribes the state’s power to regulate them: in other words, between an individual or collective rights interpretation.⁸ Breyer and Stevens dissented from the majority opinion with a view favouring the regulation of firearms by Congress as provided for within the amendment and Breyer as questioning the way in which the Second Amendment’s phrasing, referring to ‘well-regulated militia’, and subsequent collective rights interpretations were dismissed by the majority opinion (Duigan 2023). From its inception, Heller was a political case, conceived by four individuals at the libertarian think tank Cato Institute and the PILF Institute for Justice. Its express aims are to promote ‘textualism’ (originalism) (interview with Bob Levy, Cato Institute; see section 4. Research Design) and the libertarian principle of individual liberty (interview with Clark Neily, Institute for Justice/Cato Institute; see section 4. Research design). By their admission, these actors were not primarily interested in guns or were equally interested in the wider ideational issues.

3.2. Constitutional originalism

This paper examines originalism as the content of discourse that is shared by the coalition of interest groups. Heller has an implicit link with originalism. It has been considered a landmark victory for originalism and a foremost example of its practical application (Greene 2009, 325; Neily 2010), and the majority opinion – authored by Scalia, a prominent originalist – represents originalism as the preferred form of legal interpretation (Neily 2010, 186; Scalia 2008, 56, 30). Originalism (also referred to as ‘textualism’ (Levy interview), ‘interpretivism’ and ‘original meaning jurisprudence’ (Teles 2008, 145)) is a school of constitutional interpretation that promulgates the document’s original meaning and provisions (sometimes formulated as ‘intentions’) as the sole legitimate guide to its present-day application (Avery and McLaughlin 2013; Greene 2009; Neily 2007, 2010). Its identifying features include its emphasis on the Constitution’s historical origins, circumstances that influenced its provisions and the contemporary norms and practices at its inception. Originalism arose in the Conservative Legal Movement in the 1970s (Teles 2008) and is associated with the Federalist Society as an eminent conservative legal network (Hansford 2010), which shaped and promoted originalism (Avery and McLaughlin 2013, 8; Teles 2008, 145). Levy and Neily subscribe to this jurisprudential school (stated in interviews), citing it as equal a motivation for their action in Heller as the libertarian principle of individual freedom. Cato is institutionally in favour of originalist and Madisonian readings of the Constitution (Ilya Shapiro, director of Constitutional Studies at Cato, confirmed this at interview (2021) and it is confirmed in his written output (Cato Policy Report, Nov/Dec 2008, 14; Shapiro 2008)). While one cannot infer it as a motivator for all 13 groups in this paper’s sample, constitutional originalism is a connective tissue linking the conservative lawyers and actors in Heller. It is strongly present in the briefs. It is the way in which this is held in common and due to the flexibility of this school of constitutional interpretation – and that of the Constitution itself – from which its capacity to be utilised by differing ideational types emerges; namely, its function as a binding agent between diverse groups without the need for exact ideational alignment. While Teles traces its origins in CLM (2008, 145), originalism is yet to be considered as a mechanism among diverse conservative groups or regarding its discursive function. This paper contributes to this understudied area.

4. Research design

I use the case of gun rights and the institution context of the US Supreme Court, with data analysis of amicus briefs, as this provides a measurable context and unit of observation for informal coalition-building. In particular, the Supreme Court allows for the multiple iterations of and informalities in coalitional behaviour, observations of which would be confounded by the dynamics of parties if seen in a policymaking context. I select generalist interest groups as a unit of observation because of their primacy in political systems (Baumgartner and Leech 1998; Medvetz 2007, 2012) and their capacity to form informal coalitions. This paper employs a qualitative case study design allowing for inductive inferences. A case study that is sufficiently anomalous or representative facilitates hypothesis generation (Jack J. S. Levy 2008). I select Heller as a pertinent case – on which there is a slim literature because of its landmark importance for gun rights; see Goss (2019) — from which to inductively draw conclusions about the mechanism sustaining broad interest group coalitions. I identify three reasons:

1. Landmark case on the right: This prominent case attracted widespread support from a range of actors, mainly but not exclusively from the right.⁹ Significant right-wing figures submitted briefs in support of the respondent including Edwin Meese (former Attorney General and Chair at the Heritage Foundation), Vice President Dick Cheney and 305 members of U.S. Congress of whom 228 (75%) were Republican.¹⁰

2. Implicit connection with interest groups: Heller was conceived, litigated and funded by three staff members (Robert Levy, Clark Neily and Alan Gura) at two prominent conservative interest groups (Cato Institute and Institute for Justice; see also ‘The Right to Keep and Bear Arms’, Cato Policy Report, (2018)). As the case’s Question Presented (QP) implies, Heller was conceived and framed as a libertarian action. Cato and IJ handpicked petitioners, and engineered the action to maximise its chances of achieving an ‘ideological’ objective (interview with Clark Neily).

3. Litigation as a relevant subject of political study: Litigation is an established strategy of political influence among interest groups (Teles 2008; Collins 2017). Amici have a demonstrably important role in influencing legal outcomes, at least in obtaining ‘cert’ (a certiorari) for cases to be heard at the Supreme Court (Collins 2017). There is an established literature on conservative litigation at the Supreme Court (Hansford 2004b; Hansford & Johnson, 2008; Hanford 2004a, 2004b; Solowiej and Collins 2009), and on litigation and interest groups more generally (Kobylka 1991; Scheppele and Walker 1991). While the groups here do not directly litigate, amicus submission constitutes participation in litigation (Hollis-Brusky and Wilson 2017; Hansford 2004b). It can therefore be included under the umbrella of conservative litigation.

This case explicates how broad coalitions are sustained in support of the Second Amendment. The ideational and discursive makeup of the gun issue has wider salience by explicating the types of issues and their related discursive capacity that enable coalitional cohesion. Guns rights’ potential anomalousness signifies a theoretical opportunity to draw broader conclusions. To this end, I inductively compare Heller with the landmark equal marriage case, United States v Windsor (2013), as a categorically distinct libertarian issue falling along social-libertarian lines like Heller but dividing conservatives unlike gun rights. Comparison of this anomaly allows one to draw conclusions about the peculiar cohering capacity and ideational flexibility of guns rights.

4.1. Selection criteria for sample

This study examines conservative interest groups who submitted amicus briefs in favour of the respondent (Dick Heller). This represents 13 of 47 amicus curiae briefs were submitted in his favour in total (see a full list of amicus submissions in Heller, 2008). The remaining 34 are composed of diverse parties, of which 11 are gun groups and 23 miscellaneous including academics. My sample of interest groups is shown in Table 1.

Table 1. Interest groups’ organisational histories.

Interest group	Acronymn	Founded	Primary location	Policy priorities	Organisation type	Typology
1. American Center for Law and Justice	ACLJ	1990	Washington, D.C.	Religious freedom	PILF (public interest law firm)	iv. New Christian Right (NCR)
2. American Civil Rights Union	ACRU	1998	Naples, Florida	Religious, social/economic freedom	Legal organisation	iii. Social-Institutional Conservative
3. American Legislative Exchange Council	ALEC	1973	Arlington, Virginia	Small government, free enterprise, social issues	Voluntary organisation	iii. Social-Institutional Conservative
4. Cato Institute	Cato	1974/7	Washington, D.C.	Individual/economic freedom	Think tank	i. Libertarian
5. Center for Individual Freedom	CFIF	1998	Virginia	Small government, economic freedom	Nonprofit org	ii. Free market
6. Foundation for Moral Law	FML	2003	Montgomery, Alabama	First Amendment, religious freedom	Legal advocacy group	iv. New Christian Right
7. Goldwater Institute	GI	1988	Phoenix, Arizona	Small government, free market	Think tank/litigating organisation	ii. Free market
8. Heartland Institute	HI	1984	Arlington Heights, Illinois	Small government, free market	Think tank	ii. Free market
9. Institute for Justice	IJ	1991	Arlington, Virginia	Economic Liberty, Educational choice, Private property, First Amdnt	PILF (public interest law firm)	i. Libertarian
10. Libertarian National Committee	LNC	1971	Washington, D.C.	Individual/economic freedom	Committee of political party	i. Libertarian
11. Liberty Legal Institute	LLI	1997	Planto, Texas	Religious freedom	Nonprofit legal organisation	iv. New Christian Right
12. Mountain States Legal Foundation	MSLF	1977	Lakewood, Colorado	Free market	Public interest law firm	ii. Free market
13.Southeastern Legal Foundation	SLF	1976	Marietta, Georgia	limitedgovernment, individual economic freedom, free enterprise	PILF (public interest law firm)	iii. Social-Institutional Conservative

Sources: Compiled author. (See McGann 2008; group websites (Online Appendix A)).

4.1.1. Method of selection

Having selected Heller as a case study, I inductively identified the 13 sample by identifying all 47 amici’s a) political orientation and b) organisational type, using the criteria was that they i) explicitly identify with a form of conservatism and ii) are a type of interest group who advocate for defined political objectives.¹¹ I bring together differing organisational types (think tanks, advocacy groups, public interest law firms) under the rubric of ‘interest groups’, like conservative litigation scholars. Teles (2008), and Hollis-Brusky and Wilson (2017) include PILFs (for example, IJ) alongside think tanks (for example, Cato) within the Conservative Legal Movement. These groups also adhere to the aforementioned descriptor (See Parrilla, Almiron, and Xifra 2016 to verify the establishing practice of discussing think tanks and PILFs under the same umbrella of ‘interest groups’.). The 13-group sample is the total number of conservative interest group-amici in the case. This inductive method found that all groups habitually engage in litigation and/or amicus submission as normative influencing strategies.

The question of ideational versus co-ordinating mechanisms is particularly appropriate to the subject of interest groups, which commonly participate in political action towards explicit ideological or policy goals. It pertains less well to other amici who do not by habit participate in legal cases with systematic ideational agendas, like academics. Single-issue (gun rights) organisations’ interests are often positivistic and narrow. Elected representatives, such as the 305 members of Congress, can be reasonably expected to respond to electoral incentives and constraints, which produce different dynamics of coalitional behaviour and litigative participation. The incommensurability of these subjects justify concentration on multi-issue conservative interest groups. Other subjects require separate study altogether. Though gun groups exhibit overlaps in political and ideational characteristics with Conservative Interest Groups(my term, for the purposes of this sample) (Horwitz and Anderson 2009; Melzer 2009), they cannot be treated as a subset of conservatism. This study emphasises that distinction, which is little-explored by literature on gun groups and conservatism (aforementioned).

Some groups in this sample (American Civil Rights Union (ACRU), American Center for Law and Justice (ACLJ), Cato Institute, Institute for Justice (IJ), Foundation for Moral Law (FML)) are discussed in conservative litigation and CLM scholarship (Hollis-Brusky and Wilson 2017; Teles 2008). Their evidently habitual engagement in litigation and/or amicus submission and putative centrality to conservative litigation increases this study’s relevance to that literature. This paper builds on some of these discussions; it extends Hollis-Brusky and Wilson’s findings about New Christian Right (NCR) groups’ strategic uses of secular litigation, and the spread of common strategies (Hansford 2004b; Teles 2008).

4.2. Amici curiae

Amicus curiae brief submission is a low-cost strategy of influence¹² cited as part of groups’ regular activity. Briefs provide expert information to Supreme Court Justices and favour the petitioner, respondent or neither. Cato’s amicus archives shows a dramatic increase in amicus submission between 1999 and 2018 (1 brief in 1999 compared to 78 in 2018) (Online Appendix B). Amicus submission to SCOTUS cases is a common practice according to literature on the subject (Caldeira and Wright 1990; Hansford 2004b, 1). It is substantively addressed with regard to interest groups by Collins (2008, 2017) (see also Barker 1967; Ennis 1983; Songer and Sheehan 1993; Spriggs and Wahlbeck 1997). Amicus briefs allow third parties, as well as the plaintiff or defendant, to submit additional information for the consideration of the court. They normally present three to five legal arguments about the case or wider social context, usually in order of priority or to build a legal argument. This often attracts legal experts but also a wider series of activists and interest groups. As indicated in the above increase in Cato’s submissions over time, amicus briefs have become a form of political-legal activism in recent decades.

4.3. Typology of value sets

Four value sets can be extracted from the sample based their a) self-descriptions and b) policy priorities on their websites (accessed 2021), shown in Table 2. I use groups self identifications where possible, and terms employed by similar studies (for example, Hollis-Brusky and Wilson 2017 on NCR litigation).

Table 2. Groups categorised by typology.

Typology	Constituent groups	Value descriptors	Policy/Legal Areas of Priority	Total Number of Groups
i. Libertarian	Cato Institute Institute for Justice Libertarian National Committee	Emphasis on human freedom. Often espousing small state and market liberalization.	Individual freedom, limiting government regulation	3
ii. Free Market	(4) CFIF (5) Goldwater Institute (6) Heartland Institute (7) Mountain States Legal Foundation	Overlaps with but distinct from libertarianism; pragmatically interested in free markets.	Property rights and economic liberty, limiting government regulation	4
iii. Social-Institutional Conservative	(8) ACRU (9) ALEC (10) Southeastern Legal Foundation	Generic. Socially conservative with elements of small-state. Often neoconservative.	Small government, social conservatism, legal conservatism.	3
iv. New Christian Right (NCR)	(11) ACLJ (12) Foundation for Moral Law (13) Liberty Legal Institute	Social conservatives, often authoritarian in contrast to libertarians; prioritizing Christian values and religious freedom.	First Amendment, religious freedom, (marriage, abortion, religion in schools)	3

Source: Compiled by author using organisations’ websites [accessed July 2021] and Heller amicus briefs (2008).

This sample is an ideationally diverse sample with a roughly equal balance of types: a fortuitous outcome of the inductive method.

Variation in values is perceptible across the groups. The types are approximations: they are not necessarily incompatible and there are overlaps in values. This occurs between neighbouring categories, notably Type i. Libertarian and Type ii. Free Market contains libertarian elements (individual freedom, limiting government) but lacks its explicit identity and its classical-liberal intellectual framework. Values overlaps are also visible within individual groups: American Civil Rights Union (ACRU) has NCR elements and Goldwater conservative elements. This notwithstanding, the types promulgate mutually distinct emphases. The dynamics of values-difference therefore vary according to the combination of types and groups. The greatest divergence is between libertarian (i) and New Christian Right (NCR) (iv). A contributing factor may be that both promulgate more distinct areas of focus than types ii and iii. The case comparison with Windsor (2013) explores this divergence. Notwithstanding conspicuous variation in values, all groups tacitly or explicitly identify as conservative including Cato and IJ, and conform to established definitions of conservative values (Scruton 2017; Stanford Encyclopaedia of Philosophy; 2019; Honderich 1991; Nash 1976, 27, 31). Likewise, all are unified by a shared goal towards an outcome in Heller and profess commitment to the US Constitution in their briefs. A valid question regarding this inquiry into the ideational is whether the briefs accurately represent their organisation’s perspectives. It is credible to interpret them thus, as briefs are submitted under organisations’ auspices, including Cato’s and Institute for Justice’s.¹³ The briefs explicitly claim to represent their organisations’ beliefs and agendas.

4.4. Data and analysis

This paper employs content analysis to identify i) shared discourse and ii) its cohering properties. This comprises two sub-methods: quantitative content analysis (word frequency) and qualitative engagement with the briefs’ arguments in context using Qualitative Document Analysis (QDA) (Wesley 2010) (see Flick 2013). The use of complementary mixed methods (see Seawright 2016) is ideal for identifying discourse, determining whether it is invoked in sufficient degrees to be considered discursively central, and how far it coheres ideationally different groups. The combined use of both quantitative word frequency and qualitative content analysis (QDA) to contextualise the former allow for a comprehensive picture of briefs’ discourses. For the latter, all briefs’ arguments were read in full and compared to the quantitative findings. This approach uses strengths of both approaches to build up a picture of the most dominant discourses.

This paper uses the 13 amicus briefs as the main source of evidence (to which it applies the aforementioned method of word frequency and QDA). It supplements this with semi-structured interviews¹⁴ with two of three members of Heller’s litigation team (Clark Neily 2023a, 2023b; Levy, 2023) (ethical approval granted by University College London’s Research Ethics Committee, Project 19,739/001, Reference No Z6364106/2021/01/23 social research), written correspondence with these actors, the 13 groups’ media and research output (such as Cato Policy Reports, op-eds, academic articles), and evidence of groups’ orientations from their websites, accessed in Spring and Summer 2021.

4.5. Coding procedure

To develop an accurate codebook, an inductive, grounded coding procedure was used. First, all 13 amicus briefs, plus the 11 gun groups for the comparison (making a total of 24 briefs) were coded using NVivo 11. Discursive nodes were then identified from point-blank word frequency. At the third stage, the most frequent keywords (or ‘nodes’) identified 5 main themes: 1. Originalism, 2. Small state, 3. Insurrectionism, 4. Founding fathers, 5. Empiricism. A qualitative reading of all briefs’ main arguments was then undertaken to confirm their discursive orientation. Counts for nodes associated with originalism were then compared and an inductive finding of shared originalism was made.

As mentioned, the consistently inductive rationale for selecting the case of Heller, the sample and identifying discursive nodes avoids selectiveness. This method, and Heller’s significance as a lightening rod case, means that despite the inductive limitations of this qualitative study, which is primarily focused on one case, it offers inductive lessons for the wider question.

4.6. Method of analysis

This paper employs the two aforementioned methods of analysis to identify discourse and its deployment. It uses i) content analysis (word frequency) to identify discourse content, the presence of shared discourse, and its distribution across the groups. ii) Comparative analysis identifies whether this discursive cohesion is peculiar to the interest groups. I find that it is not a default argument that coheres all groups but rather a distinctive discourse. iii) QDA analyses arguments in their contexts to show the ends to which they are used and whether constitutional originalism is discursively central, as well as statistically present. Word frequency and qualitative assessments of arguments were done individually for each brief (24), and this was repeated for both groups combined in order to compare them. Integrating quantitative word frequency with qualitative content analysis enables identification of a discourse’s breadth and depth within briefs and across the sample, whilst retaining a view of arguments in-context. Multi-method analysis allows for ‘triangulation’ (Wesley 2010, 6). Qualitative engagement with arguments (for example, originalist versus positivist arguments) support hypotheses from the data. It also counterbalances the implicit disadvantages of a given method. For example, this paper uses aggregated word counts to identify points of commonality, complemented with non-aggregated word frequencies per group to ameliorate the possibility of high counts of a minority of groups overweighting the average use of a node across the sample (see Footnote 8). Similarly, qualitative examination of discourse in context circumvents the potential deficiencies of selecting nodes in isolation via word frequency. Thematic analysis – which comprises these methods of multi-method content analysis, including quantitative word frequency, also known as ‘syntactical analysis’ (Weber 1990, 44) and ‘referential content analysis’ (Krippendorf 1980, 62) – is established in the literature as ideally suited to identification and analysis of discourse (A. Kaplan 1943, 240; Weber 1990, 44–52). This is partly because it allows systematic discourse extraction from sources. It is apt for this paper’s research question as it uncovers any embedded ‘ideological biases’ (Heracleous 2004).

Each method of analysis has a function in this paper’s inquiry. They primarily established a) discourse connect and b) whether it is shared. Content analysis identifies embedded concepts; the qualitative method is in line with standard textual exegesis. Having identified discourse, the qualitative examination of briefs’ arguments identifies cohesion. Information about groups’ orientations contextualises the briefs. This paper uses total count of nodes to make inferences about its importance. It defines nodes of 3 counts or more as discursively significant. This is appropriate given their relative unusualness and specificity, which one can use to infer the presence of a specific argument. It uses percentages to compare frequencies between the (multi-issue) conservative interest groups and (single-issue) gun groups (referred as such from here on to distinguish these types of interest group).

5. Discourse among conservative interest groups

This section explores how originalism functions as a cohesive discourse among the 13 groups. Its key findings are: (1) there is a shared discourse among a majority (10) of the 13 interest groups, comprising constitutional originalism. (2) This discourse is distinctive among the interest groups compared to gun groups, which suggests that it is not overdetermined by the Question Presented (QP). (3) This discourse coheres diverse groups with distinct value sets. (4) Discursive cohesion in this one instance does not necessarily predict cohesion in another case on a separate issue. Values divergence remains, notwithstanding shared action and discourse in Heller; originalist discourse is redeployed by one Heller actor to opposite ends than former amici partners. These findings contribute to this paper’s conclusion that shared discourse is a cohering mechanism that binds diverse values in coalitions action, in lieu of ideational cohesion.

5.1. Shared discourse: constitutional originalism

It is first necessary to identify whether there is a shared discourse and its content. Word frequency results for the 13 groups’ briefs show significant overlaps in shared discourse around constitutional originalism (identified in Table 6 later in this section). The inductive word frequency, combined with a qualitative assessment of all 24 arguments, identifies discursive nodes that divide into five categories: 1. Small government, 2. Originalism, 3. Founding fathers, 4. Insurrectionism, 5. Empiricism.

This paper concentrates on originalism because it is the dominant subtext of the case. Furthermore, Heller’s implicit link with originalism accounts for this decision. Heller was dubbed an ‘originalist victory’ (Neily 2010; Wilkinson 2009, 256; Spivey 2016, 106¹⁵), Levy cites originalism as his motivation in the case, and Scalia authored his majority opinion asserting it as the appropriate interpretative framework through which to read the Second Amendment. In addition, while there are multiple generic discursive strands in the briefs, originalism is the only jurisprudential school among them and represents a distinctive discourse on the right. Originalist nodes include keywords invoking historicism, the Constitution’s origins and contemporaneous norms, including ‘English’, ‘England’, ‘British’, ‘original’, ‘origins’, ‘tradition/al’. Four groups combine originalist discourse with constitutional interpretation (‘collective [rights theory]’, ‘miller’).¹⁶ I identify instances of originalist discourse in the briefs using four key dimensions (Table 3):

Table 3. Dimensions of originalist discourse.

Dimension	Key words
i. Explicit historicism	“history”, “historical”
ii. Contextual origins	“England”, “origins”
iii. Constitutional interpretation	“miller”, collective rights theory”, “interpretation”
iv. Teleology	“purpose”, “intention”, “provisions”

Source: Author.

Results show that 10 of 13 groups exhibit one or more dimension (Table 4):

Table 4. Cigs and gun groups’ alignment with originalist discourse compared.

Dimension	Groups	Proportion of sample
i. Explicit historicism	ACRU, ALEC, Cato, FML, (GI), HI, IJ, MSLF	8/13
ii. Contextual origins	ACRU, (ALEC), Cato*, FML, HI, MSLF	6/13
iii. Constitutional interpretation	ACLJ, ACRU, ALEC, Cato, CFIF*, FML, HI, IJ, MSLF	8/13
iv. Teleology	ACLJ, ACRU, ALEC, Cato, FML, HI, IJ, MSLF	8/13

Source: Author.

Content analysis of total counts of these key nodes are derived from word frequency analysis of all amicus briefs in NVivo. Data shows a conspicuous overlap in the nodes of 7 groups. 6 groups have a full house of all four dimensions (ACRU, ALEC, Cato, FML, HI, MSLF) and IJ uses three. This shows commitment to an extensive originalist discourse weighted in half of the groups. Ten – a majority – use at least one discursive node in sufficient frequency to be considered significant. While this study, as mentioned, designates 3 or more counts as statistically significant (given they are not quotidian words, they can be reasonably inferred to correspond to a specific discursive orientation), half the groups exceed this minimum measure. The aforementioned 7 groups show high frequency rates, using at least one node on 10 or more occasions (ACRU, ALEC, Cato, FML, HI, IJ, MSLF). 8 groups use nodes from category iv) Teleology (the fourth discursive strand in Table 4’s mapping of the discourse) 10 or more times.

There are implicit challenges in quantitatively determining the threshold at which frequencies constitute discourse. However, cross-referencing this data with a qualitative survey of their arguments affirms that groups make substantiative use of originalism in their main arguments. A majority of groups (9 of 13) (ACLJ, ACRU, ALEC, Cato, CFIF, FML, HI, IJ, MSLF) advance substantive originalist arguments for all or most of their main arguments, including the same 7 groups with high frequencies in all four dimensions.¹⁷. I use the established definition of originalism (see Section 3. Case study) to identify its presence in the briefs: i.e. invocations of the historical meaning, intentions, provisions and contextual norms of the constitutional amendments of 1789. I also include critiques of Miller and Collective Rights Theory, as engagement with constitutional interpretation. All arguments aggregated from the 13 groups can be reduced to three key angles of argumentation: i) historical origins, i) textual provisions and interpretation and iii) contemporary consequences or circumstances. The first two are recognisably originalist. Within these broad approaches, main arguments utilise the key paradigms of originalism: historical provisions (ACLJ, ALEC), historical intentions (ACRU), historical origins ((ALEC to a lesser degree), Cato, FML, HI, IJ), contemporaneous ideas and norms (MSLF) and constitutional interpretation (CFIF). There is inevitable overlap between groups’ arguments, not least because originalism’s paradigms overlap, making it necessarily difficult to strictly taxonomise originalist arguments in the sample.

Further qualitative-exegetic engagement with the 9 briefs’ content confirms originalism’s discursive centrality to their arguments. Arguing from i) origins, Cato, whose brief is the strongest in word frequency and substantive argument), argues primarily from the Constitution’s historical content and provenance: ‘The English right to have and use arms belonged to individuals… and particularly protected their “keeping” of guns for self-defense’ (2008 ii-iii). While Cato’s brief is perhaps the most evangelical and ‘out of central casting’ use of originalism in the sample, it is substantively incorporated by a majority of fellow actors. HI’s first argument (of three) replicates Cato’s: ‘I. Historical Origins and Early Interpretations’ (2008, i). Likewise, FML’s central argument is historicist and gives a close textual engagement with the Constitution, arguing that, ‘Properly interpreting the text requires reading it with an eye toward what it meant by common understanding at the time of its enactment’ (2008, 2). Using the second form of originalism, (ii) textual provisions/interpretation), ALEC and CFIF engage with questions of interpretation. ALEC’s summary of argument scrutinises prevailing interpretations of the Second Amendment’s reference to, ‘militia’ (2008, 3). CFIF’s central argument faults the collective rights theory of Miller (1939); whilst this argument is not implicitly originalist, it pertains to constitutional interpretation. As a tacit critique of supposed liberal revisionism, this argument ostensibly favours an individualist reading and complements an originalist one.

These surveys show sufficient a) resemblance and b) shared paradigms to interpret originalism as a cohering discourse. There is broad employment of originalism in the core arguments of a majority of briefs, and coherence in results between quantitative and qualitative surveys. Variations between types of originalist arguments are minimal, though their subject or focus may vary. This can be reasonably explained by the common incentive for co-operating amici to co-ordinate arguments to avoid duplication and cover more ground argumentatively. Levy and Neily affirmed at interview that they (at Cato and IJ) co-ordinated among amici in this manner. While there is some variation in the use of different dimensions, with highest frequencies clustering around one to two dimensions per group, all nodes paradigmatically derive from the originalist school of thought.

There are three outliers from this pattern (LNC, LLI, SLF) which do not register significant word frequencies of originalist keywords, and do not field substantively originalist main arguments. Furthermore, there are varying degrees of originalism in the positive sample. Of the ten discursively aligned groups, three occupy a limited range (fewer than three dimensions of nodes). Weak frequencies (below 10 counts) (depth of originalism) account for three groups; ALEC for all but one dimension, GI, and SLF with under ten frequencies in historicism and contextual origins.¹⁸ There is some variation in emphasis in the originalist ten. Reflecting the picture of the frequency data of a 7 to 3 ratio of strong-to-moderate alignment, the most aligned 6 to 7 groups make exclusively originalist arguments, and 3 to 4 supplement originalist arguments with applied or contemporary supporting third or fourth-place arguments (for example, HI’s first argument of three discusses historical origins, the second the Second Amendment’s provisions (both constituting an originalist/textualist approach) and diversifies with a third addressing the empirical question of handguns and crime (2008, i) (also CIF). Notwithstanding this, originalism is the dominant discursive strand fielded in most main arguments in the aligned groups. Only in three briefs (GI, LNC, LLI) is it absent (which make contemporary or D.C.-related arguments instead) and it is utilised as a minor argument in SLF¹⁹ (the only brief to field an empirical main argument).

In brief, qualitative and quantitative surveys determine that 10 of 13 groups are discursively aligned, using originalism for main arguments: of this, 7 are strongly originalist (roughly half of the sample). This is a sufficient number to define as discursive cohesion.

With that established, how distinctive is this discourse? Is it a default position, determined by the QP? While there is de facto alignment, irrespective of how far it is shared by other actors, determining whether the interest groups could be equally aligned with other types of actors, and how far this discourse is endogenous to the case or exogenously produced and imported, indicates how far their cohesiveness is contingent, specific to conservative groups who engage in Supreme Court activism, and thereby significant, possessing operational value specific to conservative interest groups.

5.2. Distinctive discourse among the interest groups

Comparative content analysis of interest groups and gun activist groups (surveying the latter’s 11 submitted briefs in Heller) (Table 5) shows higher levels of originalism among the 13 interest groups than the single issue gun groups, delineating it i) as a political decision, not a default and ii) a cohesive discourse specific among the conservative interest groups. This means that the 10 aligned interest groups make a unique – not incidental – discursive choice. This implies that they can be perceived as a self-contained group and maintain practices specific to the CLM and conservative interest groups.

Table 5. Cigs and gun groups’ alignment with originalist discourse compared.

Dimension	Details
ii. Contextual origins	Each node is higher among the 13 interest groups. There are equal uses of “original”. “English” and “England” are used more by the 13 by a substantial margin.
iii. Constitutional interpretation	“Collective” 87 counts to 17 (0.10% higher), “miller” 75 to 38 counts (0.05% higher). There are even more mentions of “constitution” and “constitutional” (0.03% and 0.06% higher).
iv. Teleology	Nodes are substantially higher among the interest groups. “Purpose” is a third higher for the 13 (40.9% higher; 93 counts to 66). “Intention” does not rank high enough to be included in the top 1001 words of the aggregated gun group briefs. “Provisions” is used almost twice more by the interest group (93 aggregated counts versus 66 counts). “Interpretation” is 143.47% higher among 13 than 11 (56 counts versus 23).

Source: Author.

Aggregated frequencies of key discursive nodes, including originalist ones, are presented in this section Table 6 and Table 7.²⁰ Data shows proportionally higher invocations of originalist nodes by the 13 interest groups than the 11 gun groups. This is true notwithstanding the differences in group size. Analysing the use of discursive nodes as a percentage of text circumvents this issue. The 13 interest groups exhibit consistently higher frequencies for three of the four dimensions (the outlier being explicit historicism):

Notwithstanding the extent to which aggregating counts overweights individual groups’ discursive nodes (for example, Cato’s highly originalist brief, which emphasises the Second Amendment’s origins in English common law and social norms), content analysis of the briefs indicates that strongly originalist groups are statistically significant among the 13 with roughy similar uses among half of the sample, and a clear majority deploying originalism argumentatively.

A qualitative assessment of all 24 briefs’ individual arguments consolidates this picture. The gun groups’ briefs give more empirical arguments, use fewer originalist main arguments, often integrate these with empirical and applied arguments at greater rates than the 3 to 4 interest groups, and exhibit less strong originalist discourse overall, using fewer originalist node-dimensions. Six gun groups give empirical and applied (D.C.-related) arguments. While 6 groups make originalist arguments of some kind, only one (National Shooting Sports Association (NSSA)) makes an undiluted originalist argument using all four dimensions, compared to 6 to 7 interest groups. Just three groups make exclusively or mainly originalist arguments (National Shooting Sports Association (NSSA), Second Amendment Foundation (SAF), Grassroots of South Carolina (SRSC)). SAF and SRSC use a limited discursive range of two and one dimensions, respectively, and combine it with empirical and applied arguments. Three groups integrate an originalist argument as one of their main arguments in a mixed bag and three use originalism as a minor point, incidental to the main argument. These have limited depth and range: originalism is a minor inclusion by GeorgiaCarry and Gun Owners of America (GOA), and one aforementioned use of all four dimensions (NSSA) with two (2) or one (3) used by the rest (compared to 6 and 7 interest groups using 4 and 3 respectively).

While originalism is used in the gun groups’ briefs, it is more diluted, mixed with applied (pragmatic) arguments and it is not discursively varied. The mixed method evidence evinces that originalism is comparatively insignificant in their arguments, more sparsely deployed and less full-throated than the multi-issue conservative interest groups. Greater numbers of interest groups — 10/13 (76.9%) to 6/11 (54.54%) – are discursively aligned with originalism, and more strongly, by 7 (53.8%) to 1 (9.09%) gun group.

Notwithstanding the inductive limitations of this small, 24-number sample and the degree to which this discourse is determined by the Question Presented (which pertains equally to interest groups), the relatively greater concentration and centrality of originalism in the conservative interest groups indicates that it is a contingent narrative with particular value to conservative groups in the CLM. This is congruent with originalism’s preponderance in the CLM (Levy interview) and their concurrent rise is established in the literature (see Teles 2008, 145) albeit scantly.

A resulting puzzle is how such diverse interest groups are bound by originalism. More specifically, how can we reconcile their use of the same discourse with their ideational differences? Do they pursue the same ideational objectives (values)? Or does the same discourse offer differing constituent utilities? If so, why does it have the capacity to cohere diverse groups?

Parenthetically, the comparison begs the question whether the interest groups are invested in the immediate issue of guns or pursue teleological objectives. The discursive divergence between gun campaigns and interest groups imply they have divergent incentives for participation. Gun groups’ (such as the NRA) greater empiricism by 6 to 1 suggests a direct investment in the real-world ramifications for gun ownership; a reasonable inference. The abstract nature of the interest groups’ arguments, lesser empiricism, and commitment to jurisprudential interpretation, suggests a lack of primary interest in gun rights themselves. This is substantiated by Levy and Neily’s limited direct interest in the immediate issue of gun rights itself relative to related ideational issues that come out of the question of guns (interviews, 2021) and the absence of the Second Amendment in the 13 groups’ listed policy priorities (websites accessed, 2021). Given this, does the interest groups’ pro-Second Amendment participation have a teleological function and what role does issue-selection play in bringing together diverse conservative groups? I address this question in my discussion.

5.3. Cohesive discourse binds groups with distinct value sets

Is use of the same discourse indicative of shared values? While they pursue the same outcome, the briefs indicate different values as their ideational goals, in spite of shared discourse. How, then, does this discourse accommodate such diverse value sets? This section proposes flexible discourse as a mechanism enabling diverse groups to cohere in shared action; i.e. discursive cohesion does not necessarily imply or depend on values cohesion as a precondition. This paper does not claim cohesion as the purpose with which originalism is employed, nor are groups’ motivations within this paper’s remit. Regardless, it is a de facto outcome.

The shared discourse of originalism is notwithstanding differences in groups’ values and priorities, and is discursively deployed to diverse ends. By extension, it is devoid of intrinsic value-content, insofar as it is employed in Heller. The typology in Table 2 indicates the groups’ essential differences in values. Notwithstanding their originalist alignment, groups’ ideational goals diverge along these typological lines. This is evident in groups’ self-descriptions in ‘Statement of Interest of Amicus Curiae’ (page 1 of briefs). For example, three groups in the strongly originalist majority, ALEC and ACLJ/FML (types ii and iv) articulate distinct ideational goals: ‘to advance the Jeffersonian principles of free markets, limited government, federalism and individual liberty’ (ALEC 2008, 1) in contrast with the NCR groups’ (ACLJ and FML) main interest in the First Amendment (religious freedom) (FML 2008, 1). Tellingly, the same discursive content is attached to differing values and priorities. Faithfulness to the constitution is diverted towards market liberalism and individualism by the CFIF (for example, ‘dedicated to defending the individual rights protected by the United States Constitution’, 2008, 1), religious rights by the NCR groups, and individual freedom and containment of the state for Cato. While there is overlap in the values that neighbouring types promulgate (for example, market freedom between i. (Cato/IJ) and ii. (for example, CFIF)), their emphases vary and therefore constitute distinct ideational goals, not values-sharing. Originalism, it can thus be inferred, is a flexible discursive construct, customisable to diverse value sets. The Constitution specifically is a device to which diverse actors across the right-wing spectrum can ascribe their constituent values. It is reasonable to infer that the US Constitution’s primacy in political and popular culture is a structural factor that influences actors to employ it as a discursive device, as well as this discourse’s utility to diverse political ends being a potential factor that entrench originalist narratives among this bloc. This yields a particularistic insight that the Constitution is a unifying symbol on the right, a receptacle whose contents can be customised. It also suggests theoretical parameters that circumscribe cohesive discourse: namely, a discourse or its locus must have sufficiently broad reach across diverse parties. Notwithstanding the inductive insights for discourse coalition generally, this suggests that the Constitution possesses a unique capacity to cohere diverse groups.

In addition, originalist discourse is employed evenly across types. This suggests that, unless it constitutes a shared value commonly shared by all, its employment is not correlated to first principles: namely, it lacks immanent normative values-content. This, in turn, supports the interpretation of originalist discourse in Heller as an adaptable to diverse actors. An inductive survey of positively aligned groups (i.e. those who utilise originalism strongly) show they are not confined to type. Ergo, its use is not dependent on a group’s values or ideational goals:

Table 6. Use of originalist discourse according to ideational typology.

Use of originalist discourse	Number of groups	Groups
i. Libertarian	2	Cato, Institute for Justice
ii. Free Market	3	Heartland, MSLF, CFIF
iii. Conservative	1	ACRU
iv. New Christian Right	2	ACLJ, FML

Source: Author.

Nor is there an apparent negative correlation between lack of originalist discourse and typology, with a similarly even distribution of absence or reduced use of originalism (combined below):

Table 7. Groups who do not use originalist discourse, according to ideational typology.

Absence/lesser use of originalist discourse	Number of groups	Groups
i. Libertarian	1	LNC
ii. Free Market	1	GI (*if excluding CFIF)
iii. Conservative	2	ALEC, SLF
iv. New Christian Right	1	LLI

Source: Author.

While this small-n sample is not sufficiently large extract a generalisable rule disproving a link between use of originalism and type, relative to Heller it implies this. This suggests two possibilities: i) groups are potentially equally committed to originalist principles, and ii) originalism is flexible to diverse values. The first, pertaining to intention, is immaterial here. However, the effect (interest group alignment) is ascribable to the second.

Why does alignment on originalism not represent values-sharing in itself? Why identify it as a practice of co-ordination and not ideational? Though difficult to measure, groups may have equally strong commitments to originalism as a value in itself. This would technically constitute a form of values-sharing. Levy, for example, cites ‘textualism’ as a key motivation in Heller. Not all actors are aligned on this: Neily cites libertarianism as his primary driver and sees originalism as a means (though notes the difficulty in separating out motives, especially when they are complementary). Any commitment to originalism as a value is therefore inconsistent across the sample and by no means present in the sample. In addition, all groups expound differing ideational goals attendant with originalism in their briefs’ self-descriptions. This implies that originalism has operational (strategic) utility, concomitant with any implicit commitment to it. It is therefore valid to identify originalism’s flexible adaptation to differing value sets as an instance of co-ordination, which necessarily limits values-sharing as an enabling mechanism for coalition. In sum, there are two key observations: i) originalism has utility and adapts to different values, and ii) it produces the outcome of cohesion.

Likewise, the Second Amendment, as a specific political issue, also ostensibly has instrumental utility for interest groups in the case. No group lists the Second Amendment as a priority area on their websites (accessed August 2021). Only Cato and IJ promote Heller as a victory on their previous cases lists, which is explicable due to their role as primary actors. Its omission on their fellow amici’s websites suggests the case holds little significance for them, a fact corroborated by groups’ (for example, ACRU) prolific amicus submission on multifarious issues (ACRU website). This supports Hollis-Brusky and Wilson’s view (2017) that groups (specifically, NCR PILFs) selectively engage in secular litigation beyond their natural remit to strategically advance their primary goals (such as religious rights, issues of social morality). Such participation instrumentally utilises the issue towards a teleological end. This inference is supported by the ‘Statement of Interests of Amicus Curiae’ briefs, which (across types) explicate ideational goals other than the Second Amendment. IJ, MSLF, and LLI (NCR) frame Heller via individualist, property rights and First Amendment issues respectively. The low cost of amicus submission can be reasonably assumed to incentivise legal activism outside priority areas. This increases the likelihood that participation in SCOTUS cases is undertaken for reasons other than commitment to a moral or ideological position, and may be for teleological purposes. As aforementioned, this does not preclude an earnest interest in the Second Amendment. Contextual evidence suggests, however, a degree of teleological interest in the Second Amendment in the manner of flexible discourse described above. Moreover, it indicates, once more, that its capacity to be flexible towards diverse values is a key mechanism that enables interest group coalition. This implies a further mechanism for cohesion: issue neutrality and flexibility.

We can test the limitations of shared values among discursively aligned groups in Heller by comparing it with a similar case involving the same actors, to which the next section is devoted.

5.4. Comparative case: Windsor

The case of Windsor provides an inductive comparison to perceive how far shared values are correlated to discursive alignment between types in Heller. Is discursive alignment in one case a predictor of values alignment, the undertaking of shared action in others, or alignment in other policy areas? This case finds that discursively aligned groups in Heller diverge here, reinforcing that shared values are not a compelling explanatory tool for their cohesion in Heller.

In the Supreme Court case of United States v Windsor (2013), four discursively aligned actors (from the most strongly aligned 7 of 13) from Heller submit amicus briefs for opposing sides: Cato and IJ (i); ACRU (iii) and FML (iv). The Question Presented asked whether DOMA (the Defense of Marriage Act 1 U.S.C §7, 1996) ‘violate[d] the Fifth Amendment’s guarantee of equal protection of the laws’ (SCOTUS majority opinion, Windsor, 2013) by preventing same-sex couples married under their states’ laws from collecting federal benefits. It was ruled unconstitutional in a 5–4 decision; a ruling later confirmed in Obergefell v Hodges (2015).

The essential finding of this case comparison is that originalist discourse does not in itself suggest values-sharing across issues, nor is it a precondition for discursive alignment. Parenthetically, this comparison reinforces the aforementioned finding that originalist discourse is not delimited to a single ideational type; it can be flexibly invoked by different actors. This comparison also indicates the importance of neutral issues that do not inflame points of ideational disagreement, as social policy is prone to, as evinced by the Windsor case and the incompatibility of the same actors who were aligned in Heller. Notwithstanding the inductive limitations of this qualitative comparison, it supports findings with respect to originalism’s flexibility and that latent ideational divergences persist despite groups’ cohesion in Heller.

5.4.1. Discursive alignment in Heller is despite ideational differences in other areas

The Windsor comparative case shows that groups aligned in Heller differ, and this falls along existing ideational differences. Cato and IJ favour equal rights while ACRU and FML support DOMA and traditional definitions of marriage. This division follows predetermined by values lines: libertarians (Cato, IJ) versus social conservatives (type iii) (ACRU) and Christian conservatives (type iv) (FML). As Levy’s interview suggested, a persisting source of division between groups who partner on the right is social liberalism versus authoritarianism. Notably, ACLU (ACRU’s liberal counterpart, which it was set up to oppose), submitted a brief in Windsor alongside Cato; Levy noted ACLU as an organisation across the conventional political divide with which Cato has partnered. Significantly, actors who are furthest apart in the typology (types i on one hand, and iii and iv on the other) diverge here. Differences in first principles are therefore a persistent division notwithstanding the groups’ discursive alignment in Heller. We can therefore surmise that the sample’s discursive cohesion arises in spite of values differences. This necessarily limits the explanatory force of values-sharing for interest group coalition in Heller, with implications regarding how coalitions generally emerge and maintain themselves.

Parenthetically, social policy’s capacity to inflame divisions suggests the Second Amendment is an ideationally neutral issue on the right, reconciling values sets that might otherwise diverge. Appropriate issue-selection is therefore a salient precondition for discursive cohesion.

A remaining question is whether Heller is an example of values alignment on a specific issue, the Second Amendment, rather than one disputing values-sharing as a mechanism in shared action. This is relevant to some extent; but a necessary distinction must be made between a shared objective (overturning the D.C. ban) and the value attached to this (for example, individual rights, religious freedom), which are demonstrably diverse in Heller. Different values may be compatible but they do not constitute shared values. The 13 groups in Heller demonstrably frame their originalist arguments in terms of different values.

5.4.2. Originalist discourse is employed flexibly across types

Originalist discourse is employed by FML, showing its utility beyond Heller. FML argues that the founders’ intentions and contemporary norms do not provide for homosexual marriage under the Fifth Amendment. This argument (which constitute the group’s two main arguments) take precedence even over Biblical argument (its third point). Word frequency analysis of FML’s brief shows the same originalist nodes from Heller: ‘madison’ has 17 counts (0.33%), ‘traditional’ 13 (0.25%), ‘english’ 9 (0.18%), ‘history’ 9 (0.18%). This constitutes a quintessentially originalist argument.²¹ Even ACRU, while not explicitly originalist, invokes historical provisions and social norms in its third argument (albeit around marriage practices and definitions historically, distinct from the Constitution). Significantly, originalist discourse is co-opted by FML towards an end opposed by their former amici partners in Heller five years earlier. Originalist discourse (or discursive cohesion more generally) is not a predictor of these partners’ value positions. Nor does alignment with originalism in Heller preclude divergence in Windsor.

Furthermore, Cato and IJ do not utilise originalism in Windsor, suggesting it may be used selectively depending on its efficacy in particular circumstances. Despite submitting arguably the most originalist brief of the 13 in Heller, Cato instead discusses the constitutional provisions of the Fifth Amendment and court precedents. This omission by Cato and IJ reinforces the inference made above that originalism is strategically utilised towards primary value sets; i.e. it does not necessarily constitute (but may for particular actors – for example, Levy) a compelling end in itself. Parenthetically, this divergence in discursive use (and lack of use) of originalism suggests it is not adopted in all constitutional law cases by the actors who use it in Heller.

5.4.3. Originalism’s flexibility

The disagreement in interpretations of the Fifth Amendment by four previously aligned actors further highlights the flexibility of originalism to be applied across groups whose principles may conflict in other areas. Incidentally, the case comparison suggests originalism may be under-theorised by right-wing actors regarding its practical applications.

5.4.4. The role of issue selection in diverse group cohesion

Finally, Windsor highlights the importance of neutral issues that do not inflame existing ideational divisions; specifically, in Heller, the Second Amendment’s neutrality on the right. This also implies that the Second Amendment is potentially anomalous in its capacity to cohere diverse parties. This concurs with literature such as Heinz et al. (2003), who found that social issues produce ideational dissonance between litigating partners.

6. Discourse as a mechanism for strategic coalitions

There is sufficient evidence of shared discourse towards differing constituent ideational goals (values) among the conservative interest groups in Heller. This paper offers two key contributions herein: i) discourse (specifically, originalism) is a mechanism enabling coalition between diverse parties, which ii) necessarily limits the role (or necessity) of shared values as a mechanism for coalitional cohesion. Values alignment does not necessarily attend discursive alignment. This is because discourse coheres potentially divergent first principles. A remaining question is the exact way in which discourse functions as a mechanism of co-ordination, as opposed to one of shared values. This section addresses that question and the role of discourse, the Second Amendment and the Constitution in the particularistic context of US conservatism and litigation, and its generalisable corollaries on the nature and mechanisms for strategic action and coalitions of convenience.

6.1. Conservative interest groups: strategy and diverse interests

Findings indicate that a majority of the conservative interest groups come together towards a shared objective by employing the same language and arguments, not by pursuing the same primary ideational goals. The role of shared values is therefore necessarily limited.²² The implications for interpretations of conservative coalition in this case are significant. It intimates that shared values are not the primary mechanism facilitating a common interpretation. The emergence of originalism in conservative legal circles (Teles 2008) enabled such a common rationale to arise. The literature attests to this. Teles shows that the Federalist Society was a locus for the dissemination of ‘“original intent jurisprudence”’ since the 1970s (2008, 145). The specificities of how it developed into shared discourse (the context and mechanisms of its transferral) requires separate study but this existing literature on originalism (while sparse, and mostly legal) provides some explanation.

We can therefore contribute a theorisation of originalism (which has hitherto been lacking) through the explanatory tool of ‘discourse’, though it does not limit the genuine commitment originalism actors may have to it more broadly. This insight can be applied as an interpretative framework for conservative co-operation generally. It is one potential explanatory framework for Phillips-Fein’s puzzle that addresses ‘the conservative coalition’ more broadly. (This concept refers to the alliance of dissonant schools within US conservatism generally, in a variety of contexts.) In so doing, it responds to and validates Phillips-Fein’s (2011) implicit premise that the ‘conservative coalition’ is not facilitated entirely or even mostly by shared values; a premise that has not been hitherto theoretically-framed and has not generated new analytical tools in answer. While a case study has limited scope for precise or universal extrapolation (and this case pertains to interest groups as a specific breed of right wing actor, whose behaviour may not be reproduced by others), it offers a theoretical response with broader applications to this implicit question in the conservative studies literature. This is the secondary contribution of this case study (in addition to that for conservative litigation and the CLM).

The cohesion arising from shared discourse is not necessarily the intended but rather the de facto outcome, but one that nonetheless sustains an informal arrangement that is ongoing. The cohesion is ostensibly an emergent phenomenon, due to its common utility for constituent interests. It suggests that collectivising effort for different ends is an efficient strategy employed by interest groups. A question for the literature on conservative litigation could be whether coalitions which share discourse are more efficacious than those which do not. Also pertaining to conservative litigation, the comparative of Windsor suggests that participation in shared action among conservative interest groups is on a case-by-case basis; i.e. coalition in one instance does not necessarily transfer to new cases, and is herein not indicative of deeper ideational agreement across policy areas.

6.2. Second amendment and conservative coalition

In addition to shared discourse circumventing the need for shared values, the political issue at play is an important factor for cohesion among diverse interest groups. In the instance of Heller, the Second Amendment is a neutral issue enabling cohesion on a shared outcome and discourse. This may be another case of emergence, in which the Second Amendment is a fortuitously mutually effective vehicle for differing groups’ ends. An inevitable implication of this is that values matter insofar as they can either keep dormant or inflame potential divergences between first principles where they arise (between types i and iv for example). Values therefore cannot be seen as irrelevant in whether and how coalitions form. However, this does not contradict this paper’s foundational premise that shared values matter only to a limited extent in comparison with discourse as a mechanism in Heller.

6.2.1. Instrumentalisation of the second amendment

This case constitutes an example of the Second Amendment’s apparent teleological utility on the right, notwithstanding any values-based commitment the actors may have to it. This case implies that strategic considerations at least partially underlie groups’ choice to participate. Hitherto this line of inquiry (regarding strategy in action) has been explored in CLM literature in relation to NCR litigation. Strategic selection of ‘high profile’ secular litigation by NCR PILFs is convincingly argued by Hollis-Brusky and Wilson (2017, 128)²³ and Blackwell (2015) explores the teleological approach (my phrasing) of NCR litigation on the Second Amendment specifically. Yet the political studies literature on instrumentalism in conservative litigation is scant, and that on the Second Amendment even smaller. This paper extends these insights and applies them to other types of conservative groups. It is evinced in the Heller case by all 13 groups’ lack of enthusiasm for the Second Amendment outside of the case and, indeed, the lead litigators’ (Levy and Neily) admitted lack of interest in the issue.

6.2.2. Second amendment: origins of a political issue?

The Second Amendment’s compatibility with differing first principles may be a causal variable enabling its rise as a ‘hot topic’ on the right, as divergent groups are predisposed to agree on this subject, unlike social issues such as equal marriage which unearth quiescent conflicts. Its popularity among some conservative constituencies and movements may have created an incentive for groups to participate in Second Amendment litigation (a variable requiring further research to affirm it); a factor which Hollis-Brusky and Wilson (2017) consider regarding NCR Supreme Court participation. The potential that Second Amendment activism may offer in terms of strategic realisation of goals and its capacity to bind coalitions may be a structural explanation for the issue’s historical prominence since the 1980s (Spitzer 2015). This requires, of course, more research. It addresses a question missing from the scant political studies coverage of the Second Amendment: whether values or co-ordination explain the emergence of ‘big issues’ in political blocs, electoral or otherwise. The particularistic insight that the Second Amendment is a neutral issue on the right may contribute to this wider question within US conservatism and more generally. It also contributes the theoretical observation that issue selection is a foundational mechanism enabling diverse coalitions, aligning with existing literature on this subject such as Heinz et al. (2003).

6.3. Constitutional interpretation

The instrumentalism of the Second Amendment and limited values-sharing has corresponding implications for the role of the Constitution in conservative litigation. The Constitution has an apparently cohesive effect on the right, enabling actors to affect the same rationales for their positions whilst accommodating diverse value sets. Once more, it is not possible to ascertain whether this is an intentional effect or de facto. However, it does indicate that its function (regardless of actors’ intention) is as a flexible discursive device.

Relatedly, the Constitution lacks an intersubjectively stable meaning and application on the right, reflecting the variation in values arguments that actors promulgate. This likewise can feed into an understanding of the mechanisms that cohere the right, as it constitutes shared content (mechanism) and not shared paradigms (ideational).

This presents the contentious question of whether the Constitution is a palimpsest on the right: i.e. a vehicle for a predetermined set of values and aims, which are contingent on contemporary political mores. While all briefs in a Supreme Court case are ultimately discussions of the Constitution’s provisions, the idea of faithfulness to the Constitution’s original or ‘intended’ norms and views (which are foundational to originalism) is a unique proposition with the question as to whether groups do prioritise this principle above other political agendas. Cato’s inconsistent use of this approach to the Constitution from Heller to Windsor suggests that this particular utilisation of constitutional discourse is context-dependent: i.e. selectively employed in instances where it is efficacious. This could paradoxically imply that, as opposed to a consistent conviction around constitutional interpretation, some groups’ use of the Constitution bends it to political exigencies. While more data is required to assess this, it is a relevant question implied by the results of this case study comparison.

In this case, it is undoubtedly true that the intellectual hegemony of originalism occurred in part due to the receptiveness of the court, and the long-term strategic discourse of the Conservative Legal Movement. It is worth noting that wider conditions can create the binding power of this discourse among interest groups. Constitutional interpretation is one example of hegemonic discourse leading to an even spread of similar thinking and argumentation, leading to effective coalitions that give the appearance of ‘ideological’ evenness but containing ideational heterogeneity.

6.4. Competing and attendant explanations

It is pertinent to briefly consider other explanations that may contradict or complement this paper’s interpretation of the cohesive effects of shared discourse as a mechanism for cohesion. In so doing, it necessarily limits the role of shared values and elaborates how shared discourse can circumvent the need for values alignment, in order to establish cohesion between diverse parties on the right. It submits that this reading has broader applications for our understanding both of conservative litigation and the CLM and ‘the’ conservative coalition (Phillips-Fein 2011) at large, which encompasses activists, voters and the Republican Party, as well as contributing to the theoretical question of which mechanisms enable coalition (see the literature group on interest group coalition and DCT).

The first alternative explanation is that originalism is a value set in itself. This has some weight and certainly applies to Levy. However, it is flatly contradicted by Neily (correspondence, August 2021).²⁴ While this is not a sufficient basis for judgement in itself, as the other 12 groups’ putative motivations are lacking (this being outside this paper’s scope), such disagreement between two primary actors in Heller is a notable indication that originalism i) does not necessarily constitute a value in itself for all actors (notwithstanding the implicit difficulties of defining what is a value or a device) and ii) was not necessarily promulgated as a primary value pursued in the case. Any value content actors ascribed to originalism does not dilute its force as a mechanism enabling cohesion. Both explanations can work complementarily.

Nor does it necessarily contradict this paper’s finding that shared values are limited between the groups. Any values the actors may share may be classified as incidental, and not sufficient to constitute ‘shared values’ as a mechanism for cohesion. This paper assesses the presence of shared values by whether groups i) are oriented towards a specific value set in their organisational activity generally and ii) profess interest in a particular value set (such as in their ‘Statements of Interest’). Briefs show sufficient divergence in these metrics, notwithstanding any overlap. This suggests that, though shared values are present to an extent between types and may be an additional factor enabling cohesion, it is a lesser factor compared with discourse as a mechanism, especially in bridging larger divergences in type and values (for example, between types i and iv) where shared values is a less convincing factor, not least because Cato and IJ (type i) do not reapply originalist discourse in Windsor. It is also less convincing in instances of weak originalism (3 to 4 groups). More data is required to confirm whether originalism is consistently applied by groups in the strongest-aligned category (6 to 7 groups) in other amicus briefs. Finally, individuals’ perspectives may be a factor influencing the nature of the amicus brief. Whether values can be maintained by entire groups across multiple amicus submissions, or whether groups can even possess value systems (see Hardin 1982) is a relevant debate here. (There is a related theoretical question of whether values can be located in any other unit than the individual (Parsons 2007). It is thus difficult to ascertain whether originalism constitutes a shared value, which necessarily constrains our ability to determine whether it is an important mechanism enabling cohesion between diverse actors.

A complementary explanation is also that there is a minimum required amount of values cohesion underlying interest group coalition. This is plausible and can complement this paper’s hypothesis around discourse.

Another factor that may cohere the actors is the proximity of their policy preferences (how closely their aggregated policy preferences align with one another). It is reasonable to infer that actors on the right find themselves on the same side recurrently. Levy and Neily report that Cato often partners with organisations on numerous cases, sometimes co-ordinating arguments. This explanation is belied by the apparent promiscuity in groups’ alignment with differing amici. Levy noted in his interview (2021) that Cato often partners with ACLU (a liberal opposition group), as well as NCR PILFs such as ACLJ and FML. That aside, this explanation may be an influential factor on group coalition. It is complementary to this paper’s explanation using discourse. Discursive cohesion may be more likely to occur among groups who frequently co-ordinate and adopt the same arguments. Ideational proximity is a distinct factor from shared values, though they could be correlated; policy preferences may signify shared ideational perspectives. This notwithstanding, it does not contradict the evidence of value difference in the amicus briefs. Proximity in policy preferences could be put into either the analytical model of co-ordination (comprising mechanism, and thus discourse) or that of shared values. It is closer to co-ordination for the stated reasons, though the two interact. Importantly, this explanation does not discount the cohering power of discourse in filling the gaps between differing first principles; a problem which ideational explanations cannot resolve. Inevitably, more research surveying whether the groups in question partner and/or co-ordinate around shared policy areas, and the extent to which this influences cohesion. This is, however, a different question to the role of discourse.

A final complementary explanation is groups’ pursuit of shared outcomes. This is a prerequisite for shared discourse. Pursuit of shared outcomes is a neutral factor that can couple with shared values or discourse (as explanatory frameworks). It can be read as another non-ideational factor that circumvents shared values as a precondition for coalition. That said, it can also be read as a signifier of a shared value, no matter how unrepresentative of the broader political contests that may exist between coalition partners (for example, ACLU and Cato in Windsor).

There are remaining areas in which this paper has limited scope to comment. The issue of motivation, which is outside this paper’s focus, remains an irresolvable part of the puzzle. For one, it is difficult to measure. Even personal recollections of motivation are subject to change over time. Levy and Neily’s recollections of their own and one another’s motivations contain inconsistencies, for example. Additionally, it is hard to determine whether groups tacitly used originalism purposefully as a mechanism; from Levy and Neily’s accounts, the process arose more organically. Moreover, data is not available to assess whether or how far specific co-ordination among the amici determined briefs’ content. These omissions, which presently limit our understanding of how discursive cohesion arose in this case, could be opportunities for future research in this area. That notwithstanding, this paper contributes clear evidence of discourse’s role as a mechanism of coalition that is strategic in nature and focused on the strategic use of discourse to its ends.

7. Conclusion

In this analysis, discourse is an explanatory mechanism for informal coalition-building and maintenance. Its capacity to sustain the objectives of diverse actors through a single narrative is a mechanism for this. Employment of similar language and rationales bridges groups’ rifts in values and, most significantly, sustains collective action in the nominal pursuit of one end, while sustaining multiple ones. This limits the role of shared values in this instance and suggests that it is not a critical precondition for cohesion; strategic discourses make up for these gaps. How sustainable a political coalition is, then, can be understood via the strength of informal coalitions using mutually advantageous causes, which act as repositories for differential actions while appearing to be one. Discourse must therefore be understood as a strategic tool in political action, with relevance for how blocs are maintained. Going further, this critically limits the extent to which ideational cohesion is the best heuristic through which to understand coalition. In electoral and non-electoral contexts, the ideational is considered by many frameworks (such as that of wedge issues) to be a complete explanation. What this work suggests it that factors such as discourse can (as much of the field has sought to argue) a strategic tool which, when deployed in a co-ordinated fashion, can maintain large blocs in lieu of ideational alignment. Strategically organised discourse plays an important role in the accommodation of self-motivated behaviour in coalition, as an explanation of how such blocs are maintained. The deeper theoretical question remains as to whether values and ideational frameworks at large are meaningful terms to apply to political movements, or whether these are simply concepts that mediate other forms of motivation.

Acknowledgments

I would like to thank my colleagues at Yale University during my fellowship in 2018, including Kenya Flash, Professor John Faragher, Professor Laura Barraclough, and Dr John Nann for their wise advice regarding the US legal system and the conceptual framework of this paper, and at University College London’s Department of Political Science, particularly Dr Thomas Gift, the work-in-progress seminar at the Centre for United States Politics (CUSP), and the Institute of the Americas for colleagues’ advice on an early draft of this article, including Professor Gareth Davies. I would also like to thank my colleagues at the American Politics Group as part of the UK’s Political Studies Association, for their feedback during a presentation of this paper at annual conference, and the committee who awarded an early version of this paper the Richard E. Neustadt Paper Prize (American Politics Group/Harvard University Press). I am grateful for their input.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Supplementary material

Supplemental data for this article can be accessed online at https://doi.org/10.1080/00323187.2024.2349109.

Correction Statement

This article has been republished with minor changes. These changes do not impact the academic content of the article.

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Notes on contributors

Josephine Harmon

Josephine Harmon is Assistant Professor of Political Science and Affiliated Faculty at Northeastern University. She has also been a Lecturer at New York University, Visiting Assistant in Research (research fellow) at Yale University, and Visiting Lecturer at The British Library, Arcadia University, Boston University and the US Embassy in London, and co-ordinated external lectures in pan-American politics at the Foreign, Commonwealth & Development Office (FCDO). She researched her doctorate in Political Science at University College London and Yale University. She sits on the Executive Board of the American Politics Group, the Conservative Studies Group and Politics, Rhetoric & Discourse group in the Political Studies Association (PSA). She specialises both in positive theory with empirical studies, and political thought and political theory, focusing on political behaviour, ideology and beliefs, institutions, group formation and systems theory, as well as the state of the left and EU supranationalism. Her latest work focuses on conformity and the relationship between social behaviour and ideology, with other works on Brexit, the state of the left and the future of Europe, on which she co-authored a think tank report. An early version of this article won the Richard E. Neustadt Paper Prize at the American Politics Group Annual Conference, sponsored by Harvard University Press.

Notes

1. See Hanegraaff and Pritoni (2019) on collective action as a means of maximising outcomes for interest groups.

2. Also referred to as ‘textualism’ and ‘interpretivism’ (Teles 2008, 145), originalism advocates for the Constitution to be implemented in line with the intentions and contemporary provisions of the original document.

3. Strategic incentives to forming coalitions have been discussed by Hanegraaff and Pritoni (2019).

4. This paper applies Discourse Coalition Theory (DCT) as a specific tool pertaining to coalitions. ‘Discourse’ was originally a Foucauldian term designating the production of knowledge that governs power relations. Notable definitions of discourse include the post-structuralist notion of discourse (Foucault, Deleuze, Derrida), as well as Laclau and Mouffe’s notion of discourse and socialist hegemony in contrast to the postmodern idea of meaning coming from subjective interpretations of language (a Saussurean idea). The term in political science is an approximation to ‘rhetoric’ but it can also refer to ideas in circulation. For its operationalisation in political theory with regard to political behaviour, see Laclau and Mouffe’s theory of discourse for socialist hegemony (Dabirimehr & Fatmi, 2014; Jacobs, 2018); Fairclough (1995, 2003), Fisher (1984) and Fairclough & Wodak (1997); and Howarth (2005) on applications of discourse theory. While theoretically distinct, rhetoric, narrative and discourse are necessarily sticky terms that overlap (see Frazer and Hutchings’ (2007) use of ‘argument’ and ‘rhetoric’), all of which engage with how language and ideas are causal and/or mechanisms for political action, and as such these subfields can be seen in dialogue with one another. For instance, discourse within Discursive Institutionalism refers to ideation – ideas as a unit – whereas I am focused here on discourse as a container mediating self-interest. These interpretations of discourse are not incompatible but they are distinct (See Elbaz-Luwisch 1997; Frazer and Hutchings 2007; Plummer 2019). See a survey of ‘Discourse’ as an analytical term in Rear; Rochefort and Donnelly (2013) on agenda setting and discourse; see also Hajer (1995, 2006), Hajer (2006), Hajer (1993) and Feindt & Oels (2005). For practical purposes, ‘Discourse’ refers to a public set of ideas, languages and arguments, which usually have normative or persuasive power.

It has since been operationalised in political science. Pautz (2011) applies a Gramscian definition of discourse to think tanks. Similar attempts to discuss rhetoric and communication includes Merry applies Narrative Policy Framework to the NRA (2018) (aforementioned) (which refers to storytelling (Merry 2018, 383) as a rhetorical strategy distinct from discourse, which constitutes a looser nexus of ideational nodes). Both denote linguistic uniformity as a political strategy. See also Stone (2012) on the negotiations between actors as a social process that constitutes the policy process.

5. Narrative Policy Framework (NPF) posits that storytelling allows actors to ‘sell’ a policy or political idea (persuasive function of narrative) (see Jones and McBeth 2014, 2015, 2010; McBeth, Jones, and Shanahan 2014, 2007; Shanahan, Jones, and McBeth 2011, 2013, 2014; Plummer 2019; Crow and Berggren 2014; Derrida et al., 1981; T. J. Kaplan 1993; Ospina and Dodge 2008; Roe 1994; for applications of NPF to gun politics, see; Merry 2016, 2018, 2020, 2022 on a study Donald Trump’s tweets; other applications include Lejano, Ingram, and Ingram 2013; O’Bryan, Dunlop, and Radaelli 2014; Radaelli 1999; Lacombe, 2019). As the name implies, this model refers to policy advocacy, as opposed to expansive, ‘soft’ discourses that can be applied flexibly (my novel theoretical contribution within Flexible Discourse Theory (FDT)). NPF is a valuable framework but it is distinct from DCT and my concept of flexible discourse (FDT). Part of this literature refers to how narrative, as well as ideas – which are in parts of the literature seen to be symbiotic and even mutually constitutive (Skocpol, 2014; Hall, 1993; Hall & Taylor, 1996; Schmidt 2008) – is operationalised as part of the institutionalist interpretation of how bureaucracies self-reproduce, in which ideas are constructed material used to reproduce institutional norms (see also Parsons 2003 on EU institutional narratives. However this literature sees power of ideas; here I am trying to focus on actor strategy of discourse, though not necessarily ideas, separating them (see as distinct from Carstensen 2011; Hall, 1993). Accordingly, I see discourse as being decoupled from the power of ideas (see the agent-structure problem). In this piece, I differ from the above scholars (even those who have acknowledged some degree of actor agency in ideational behaviour; see Carstensen 2011) by suggesting that ideas have tacitly strategic uses for actors, and this strategic use value undergirds common narratives in coalitions. Most saliently, the same narrative has coalitional value because it works to actors’ different ends, which I term flexible discourse. This is a distinct observation from the simple notion that common narratives maintain coalition; rather, ideas that can be flexibly used acquire popularity within a given coalition. In this particular article, I build upon the strategic use value of constitutional originalism, as a particular discourse, in relation to gun politics, which is new ground for both fields.

Fundamentally, NPF’s concept of narrative serves a governing function, as well as a persuasive and defensive function (Miller 2012; Ney 2014; Shanahan, Jones, and McBeth 2014; see related ideas by Skocpol and within APD (Fulbrook and Skocpol 1984; Siegel, 2014; Mahoney et al. 2019; Pierson and Skocpol 2002; see also Parsons 2003 and Discursive Institutionalism as defined by; Schmidt 2008). In essence, NPF focuses on how storytelling can be used towards advantage, often for the bureaucracy – both the persuasive purpose of narrative (see DI, Schmidt 2008 - one of three functions) in legitimating the regime but also in perpetuating it among bureaucratic members (Skocpol, 2014). This is fundamentally different from the fleet-of-foot notion of discourse I advance here, and in relation to DCT, where discourse is flexible towards strategy, here of interest groups in coalition. There is altogether less scholarly attention on this.

6. The concept of political values has been employed within the Advocacy Coalition Framework (Jenkins-Smith and Sabatier 1994, 2018; Pierce et al. 2017; Sabatier 1988; Weible and Sabatier 2006; Weible, Sabatier, and McQueen 2009). What this paper does, by contrast, is propose that interests are mediated by discourses that allow for alignment. I argue in this paper that values sharing is a limited explanatory mechanism of interest group cohesion in coalition and that, instead, instrumental discourses function as a binding agent.

7. During the case, Neily was staff at Institute for Justice and now is Senior Vice President for Legal Studies at Cato Institute (Clark Neily, Cato Institute). His role as co-counsel is prominently displayed on his profile at the Federalist Society (Clark Neily, Federalist Society).

Robert (Bob) Levy is Chairman Emeritus at Cato Institute and was: ‘[F]or 14 years, chairman of the board of directors at the Cato Institute. He joined Cato as senior fellow in constitutional studies in 1997 after 25 years in business. The Robert A. Levy Center for Constitutional Studies is named in his honour’ (Robert Levy, Cato Institute). His role in Heller is described on his Cato profile: ‘Levy served as co-counsel in District of Columbia v. Heller, the successful Supreme Court challenge to Washington, DC’s gun ban’ (Robert Levy, Cato Institute).

Both have been featured in and written about profiles of Heller, including after the Heller verdict (Cato Policy Report 2008) for the tenth anniversary which was marked in a special edition by Cato Institute (‘The Right to Keep and Bear Arms: 10 Years after Heller’, Cato, 2018). Both are members of the Federalist Society and prominent conservative lawyers.

8. ‘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’ (Legal Information Institute, Cornell Law 2002).

9. Neily stated that the Heritage Foundation held a meeting to co-ordinate action and arguments on Heller (interview with Neily, 2021).

10. 305 members of Congress in total signed the brief authored by Stephen Halbrook, in addition to Dick Cheney as President of the United States Senate, which is introduced as following: ‘Brief for Amici Curiae[;] 55 Members of the United States Senate, the President of the United States Senate, and 250 Members of the United States House of Representatives in Support of Respondent [Heller]’. The brief was led by Kay Bailey Hutchinson, ‘the leader member’. The Appendix includes the full list of names in support for the U.S. Senate and U.S. House of Representatives from pages 49 to 58. This shows the scale of conservative support that the case and issue of gun rights received. See the original amicus brief (https://www.scotusblog.com/wp-content/uploads/2008/02/07-290_amicus_congress.pdf [last accessed 24 February 2024]). For recent involvement of members of the U.S. House of Representatives in support of gun rights, see the amicus brief filed in New York State Rifle & Pistol Association v. Bruen (OT 2020) led by Representative Claudia Tenney and supported by ‘175 additional Members of the U.S. House of Representatives in support of petitioners [NYSRPA]’. See the amicus brief (https://www.supremecourt.gov/DocketPDF/20/20–843/184246/20210719150738433_20-843%20tsac%20Representative%20Claudia%20Tenney%20et%20al.pdf [accessed 24 February 2024]).

11. I exclude Claremont Institute, Association of American Physicians and Surgeons, Paragon Foundation, Independence Institute, Conservative Legal Defense and Education Fund, and Eagle Forum Education and Legal Defense Fund, as these conservative groups were minor participants in briefs with multiple amici. Their late billing in the list of groups indicates that they came into the amici brief late (interview with Robert McNamara, 2021), and are unlikely to have influenced its content. This methodological approach ensures that the data presented in this research is accurate and does not duplicate arguments unnecessarily.

12. Cost is not a barrier to amicus submission, often requiring an in-house or consulting lawyer to draft briefs. This may explain why amicus submission became a common political strategy for large and small groups alike. Many organisations have in-house lawyers or legally trained staff (for example, Cato, IJ). This also reduces costs of litigation as it avoids legal fees. Neily stated that Levy’s personal expenditure on Heller was no more than a few thousand dollars, due to savings on legal advice. This is partly a result of individuals’ commitment: Heller’s litigating team worked on the case without remuneration (Neily interview).

13. Though Neily insists that action in Heller was undertaken privately by three individuals, Cato and IJ’s briefs were submitted under their organisations’ names, not theirs as individuals. Cato and IJ later claimed Heller as a victory for their organisations (Cato Policy Report September/October 2018, 16, Nov/Dec; 2008, 14).

14. My interview protocol included a list of factual questions used to initiate the interviews. These questions focused on how and why they undertook the Heller case, as well as its poltiical significance to their respective organisations. My protocol throughout has been grounded and inductive; that is to say, I placed emphasis on leading conclusions from the data. I therefore designed the interviews to be semi-structured, allowing the conversation to develop based on the inputs of the interviewee. The trade-off in this approach is that interviewee-directed conversations may include biases on the part of the interviewee. I mitigated this by putting interviewees’ self-reports in alignment with the data. This triangulated method ensures rigour alongside the use of grounded, inductive epistemologies with interview methods.

15. Though Wilkson and Spivey argue it is a pyrrhic triumph for originalism (Spivey 2016, 106; Wilkinson 2009), they agree it is a triumph nonetheless.

16. Miller (1939) was the last previous Supreme Court case regarding the Second Amendment. It promulgated the ‘collective rights theory’, that the Second Amendment pertains to militias, not individuals.

17. Amicus briefs generally field three to four key arguments. See table of contents and ‘Summary of Argument’ in each brief.

18. While CFIF and IJ lack some dimensions in high frequencies, especially contextual origins (ii), they each engage with two nodes – CFIF with constitutional interpretation and teleology, and IJ with historicism and teleology – in frequencies above 10.

19. While SLF includes an originalist argument, it is minor and cannot be considered a full-throated adoption of the discourse. I therefore define it as an outlier from the aligned sub-group in the sample.

20. Measures of this are imperfect, since there are greater absolute numbers of interest groups (13) to gun groups (11). NVivo word frequency analysis gave total word count and percentage of document. I use total counts of keywords and comparative percentages to address this.

21. FML’s Windsor brief has different author (John A. Eisdmoe) to its Heller brief (Benjamin D. DuPré). Deployment of originalism in both may suggest it is an entrenched discourse within the organisation. More data is required to definitively confirm this.

22. Differing constituent interests do not necessarily conflict; rather they are not shared, even between types i and ii where there is considerable overlap. There are fissures at the far edges (i and iv) along ideational lines. Divergences or relative alignment in values depend on the specific interaction of constituent types; they are not the same across all types.

23. Hollis-Brusky and Wilson (2017) suggest that NCR PILFs [New Christian Right Public Interest Law Firms] are highly selective about which secular litigation they undertake and ‘despite their visible participation as amici curiae in some very high-profile Supreme Court decisions’, they ‘have not invested … significant … litigant resources’ except in advantageous cases which fit ‘their religiously defined mission focus’ (2017, 128).

24. Neily insists that originalism ‘was not a driving force’ in the case.