Looking Ahead to Heller‘s New Paradigm

Because the caption for our online exchange is After Heller: The New American Debate about Guns, I will resist the temptation to join Dennis Henigan in revisiting the old American debate, pre-Heller, on the question whether the right to keep and bear arms can be exercised only in the context of militia service. Anyone interested in the old debate can review the excellent briefs by both parties, not to mention 67 friend-of-the-court briefs — all of which are posted at www.dcguncase.com, which has developed into a leading repository of scholarship on the Second Amendment. Most important, however, the old debate is over because the Supreme Court has said it’s over. After taking seven decades to state unequivocally that Second Amendment rights are personal and private, the Court is unlikely to rehash that question any time soon. Unless and until the Court says otherwise, the rest of us are bound by Heller. As Justice Robert Jackson famously described his colleagues on the Court: “We are not final because we are infallible, but we are infallible only because we are final.”

On other matters, Henigan will get little mileage from his accusation that Justice Scalia engaged in “results-oriented jurisprudence, based on subjective value judgments.” For proof of that proposition, Henigan offers a critique of Heller by conservative law professor Doug Kmiec, who writes that Scalia ignored “constitutional text, history, and precedent.” Yet for every apostate on the right — is there any other, besides Kmiec? — there are multiple apostates on the left. Laurence Tribe, Akhil Amar, Alan Dershowitz, and Sanford Levinson, among others, all conclude that militia service was a sufficient but not necessary condition to the exercise of Second Amendment rights. The weight of scholarly opinion — across the ideological spectrum — is decidedly with Scalia.

If the test of principled jurisprudence is whether a judge’s ideological opponents have examined the same documents and reached the same conclusions, then Scalia passes that test hands down. And if the test for “judicial activism” is whether a judge’s ideological allies have examined the same documents and reached different conclusions, then Justice Stevens and his co-dissenters in Heller deserve that pejorative label. Numerous pro-gun-control scholars endorse an individualist interpretation of the Second Amendment, as expressed in Scalia’s majority opinion. Few if any anti-gun-control scholars endorse the collectivist views expressed in Stephens’s dissent. While both the majority opinion and the dissent are purportedly based on an originalist analysis of the Constitution, only the dissent exemplifies judicial activism in service of a public policy agenda. Stephens, not Scalia, is the justice unable to claim solid backing, even from his fellow liberals in the academy.

Henigan also asserts, “there are not five votes on the Supreme Court for applying a ‘strict scrutiny’ standard” of judicial review. He characterizes that as “an important setback for Heller.” Actually, neither Henigan nor I have inside knowledge that one or more of the five justices in the majority resisted strict scrutiny. Instead, we know only that the issue did not have to be resolved because D.C.’s ban was unconstitutional “under any of the standards of scrutiny the Court has applied to enumerated constitutional rights.” At some point, the Court may settle on a specific standard. If so, the standard will not be “rational basis,” as favored by the D.C. government, Professor Chemerinsky, and Henigan’s associates at the Brady Center. Nor will the standard be Justice Breyer’s “interest-balancing” test, which is presumably what the legislature applied when passing the law. Far from being a “setback” for Heller, the Court’s categorical rejection of those deferential standards is a significant victory.

In fact, Scalia’s citation in footnote 27 to United States v. Carolene Products is illuminating. Carolene was the 1938 case that effectively bifurcated our rights: The Court now rigorously protects some rights, such as those codified in the Bill of Rights, while rubber-stamping the regulation of second-tier rights, such as those related to contract, property, and commerce. By positioning the right to keep and bear arms squarely within the camp of specific, enumerated rights, and linking the Second Amendment to “the freedom of speech, the guarantee against double jeopardy, [and] the right to counsel,” Scalia sent an unmistakable signal that gun control regulations will be rigorously reviewed — perhaps even strictly scrutinized. That skeleton will have to be fleshed out in later litigation, but it’s fair to say that the gun controller’s standard-of-review glass is mostly empty, no matter how Henigan wants to spin it.

And speaking of spin, Henigan’s assessment of the “long-term political significance of Heller” is quite extraordinary. He calls it the “Heller paradox,” and it goes essentially like this: (1) the NRA and others in the “gun lobby” argued that each new gun regulation was a step down the slippery slope toward confiscation; (2) fear of the slippery slope by ordinary gun owners made gun control a “wedge” or “cultural” issue; (3) Heller, by erecting a constitutional barrier to a broad gun ban, has taken confiscation off the table; therefore (4) the NRA and its allies can no longer invoke the slippery slope argument; and (5) without that wedge issue, ordinary gun owners will be more receptive to sensible regulations. Add it all up: Heller will prove to be an important milestone favoring reasonable approaches such as those promoted by the Brady Center.

A few observations: First, the so-called Heller paradox depends on demonizing the gun lobby. That bogeyman may be rhetorically useful for Henigan, but it wasn’t the gun lobby that filed the lawsuit, picked the right time, provided the lawyers, identified the issues, selected the plaintiffs, chose the venue, decided on the legal strategy, wrote the briefs, argued in court, and won the case. The NRA can speak for itself, but our goals were not grounded on wedge issues or a cultural base. First and foremost, our interest was to ensure that the D.C. government complied with the text, purpose, structure, and history of the Second Amendment. For us, Heller was about the Constitution; guns merely provided context.

Second, if there are extreme elements within the gun lobby, trying to exploit the cultural aspects of gun control, that criticism is no less valid when applied to gun controllers themselves. According to Glenn Ivey, state’s attorney for Prince George’s County, a D.C. suburb: “Democrats and others were frequently unwilling to recognize any right to gun ownership and motivated their constituents, especially those in urban areas with high crime rates, by claiming that the NRA would flood our streets with weapons that would wreak havoc.” One tactic was to arouse urban residents with dire predictions of streets running with blood, awash with military-style weapons. Ivey continues: “To some, it seemed that no civilian should ever own a gun and that the government should ban gun ownership or impose as many restrictions as possible on it. It didn’t matter that an owner had never committed a crime or demonstrated mental or emotional instability.” That’s the way it was, and still is, in Washington, D.C.

Third, the slippery slope argument was justified, not illusory. Consider this widely quoted proclamation from Pete Shields, founding chair of the Brady Center: “The first problem is to slow down the number of handguns being produced and sold… . The second problem is to get handguns registered. The final problem is to make possession … totally illegal.” Sounds like confiscation to me. If confiscation is now off the table, and the slippery slope argument is no longer valid, that’s good riddance on both counts.

Fourth, if Henigan is correct in predicting that sensible regulations will be the by-product of Heller, I for one applaud that development. But sensible is not what we have in New York or Chicago or San Francisco or many other major cities. And sensible is not what the Brady Center has supported — arguing in its amicus brief that legislatures like the D.C. city council should have virtual carte blanche, unimpeded by judicial review, to ban all functional firearms. Thankfully, Heller has taken a major step to restore sensibility in Washington, D.C. Soon, with incorporation, Heller will have nationwide implications. That’s a big win for common sense. More important, it’s a big win for the Constitution.

Also from This Issue

Lead Essay

  • District of Columbia v. Heller: What’s Next? by Robert A. Levy

    Robert A. Levy, Cato Institute senior fellow in constitutional studies, was co-counsel to Mr. Heller in District of Columbia v. Heller, last month’s controversial Supreme Court case in which Washington, D.C.’s ban on gun ownership was ruled unconstitutional on the basis of a Second Amendment individual right to possess firearms. But what does Heller really imply for the future of gun rights and gun control in America? In this month’s lead essay, Levy asks and gives his answers to the questions on the minds of gun lovers and gun controllers alike. What gun regulations will now be permissible? Will the Second Amendment be “incorporated”? Did the court engage in “judicial activism”? And what’s next for the on-the-ground politics of gun control in Washington, D.C. and beyond? Levy’s tightly reasoned essay marks the beginning of the new American debate about guns after Heller.

  • The Heller Paradox: A Response to Robert Levy by Dennis A. Henigan

    In his vigorous reply to Levy’s lead essay, Dennis A. Henigan, Vice President for Law and Policy at the Brady Center to Prevent Gun Violence, argues that Heller was “a prototypical misuse of judicial power to advance an ideological agenda” based on Justice Scalia’s “transparently inconsistent and manipulative” reading of historical texts. Nevertheless, Henigan argues that “the Heller decision should prove to be a sharp disappointment to the gun lobby and other Second Amendment extremists” because “the lower courts are likely to interpret Heller as giving a constitutional green light to virtually every gun control law short of a handgun ban.” Moreover, Henigan argues, by decisively forbidding outright bans, Heller has defused the argument that gun control regulation sets us on a slippery slope to a society in which private citizens are not allowed to own guns. And therein lies the Heller paradox. By making Second Amendment rights clearer, the Court has made gun control easier.

  • The Right to Bear Arms and “Sensible” Gun Laws by David Kopel

    In his reply, Second Amendment scholar David Kopel argues that the Constitution’s mention of “the” right to bear arms implies the right pre-existed the government, and that the point of the Second Amendment was to rule out its infringement. That pre-existing right, Kopel maintains, was “the right of having arms for personal defense,” and there is little evidence for a pre-existing militia right. Kopel agrees with Dennis Henigan that “the Heller decision … will probably not affect most gun laws in the United States, even assuming incorporation in the 14th Amendment,” but differs on the nature of “sensible” gun control, and offers a useful and informed discussion of current regulations. Regarding Washington, D.C.’s newly minted regulations, Kopel predicts that “the new law will be declared void by the D.C. Circuit Court of Appeals, and that the Supreme Court will deny cert.”

  • The Heller Decision: Conservative Activism and its Aftermath by Erwin Chemerinsky

    In his reply to Robert Levy’s lead essay, constitutional scholar Erwin Chemerinsky argues that Scalia’s majority opinion in Heller was based on a shoddy application of Scalia’s own judicial principles and “powerfully demonstrates that Justice Scalia’s constitutional rulings … ultimately are animated by his conservative politics.” According to Chemerinsky, by ignoring a long history of precedent and throwing into question “countless other statutes and ordinances,” the decision “showed that conservative rhetoric about judicial restraint is a guise that is used to oppose rights [the conservatives on the Supreme Court] don’t like.” Chemerinsky further criticizes the court for failing to clarify the level of scrutiny to be applied to gun regulation, and suggests that it should be the “reasonableness” test. Heller will be incorporated, Chemerinsky predicts, but will unlikely affect the coming elections.

The Conversation