The Heller Decision: Conservative Activism and its Aftermath

From 1791, when the Bill of Rights was adopted, until June 26, 2008, not one law — –federal, state, or local — was found to violate the Second Amendment. District of Columbia v. Heller opens the door to countless challenges to laws that regulate firearms. The case also powerfully shows that it is the ideology of the Justices and not their philosophy of constitutional interpretation that determines the outcome of cases. Conservatives generally favor gun rights and the five most conservative Justices followed their politics to this conclusion.

Mr. Levy raises exactly the right four questions about the decision, though I would come to different conclusions as to several of them.

First, what gun regulations will now be permissible? From a practical perspective, this is the key question. Justice Scalia’’s majority opinion does a tremendous disservice to lower court judges across the country because it fails to give them any guidance as to the level of scrutiny to be applied. There is only one sentence concerning the level of scrutiny, where Justice Scalia says that under any standard of review the District of Columbia law would be invalid. This is simply not true. As Justice Breyer shows in his dissent, the law surely would be upheld under a rational basis test or reasonableness test. The District of Columbia has a legitimate, –indeed a compelling, interest –in preventing gun violence. In light of studies showing the law has been successful, the law is at least reasonable. Even though those studies are disputed, they are certainly enough to meet rational basis review.

Using Justice Scalia’’s methodology, there is a strong argument that it should be a reasonableness test. As Professor Adam Winkler explained in a thorough article in the Michigan Law Review, 42 states have provisions in their state constitutions protecting an individual’’s right to have guns. In every one of them, regulations of firearms are allowed so long as they are reasonable.

But Justice Scalia’’s opinion must be understood as using some undefined form of heightened scrutiny. His failure to specify the standard of review is an open invitation to challenge every gun law. The outcome of this litigation often will turn on the level of scrutiny applied.

Second, will the Second Amendment be incorporated? Mr. Levy, of course, is correct that this still needs to be resolved. But now that five Justices have found an individual right to have guns in the Second Amendment, I would think that incorporation will follow.

I don’’t agree, though, that this is likely to come under the privileges or immunities clause. There is only one Supreme Court case (that has not been overruled) that has used the privileges or immunities clause to strike down a law: Saenz v. Roe in 1999, which involved the right to travel. There is no need for the Court to use the privileges or immunities clause to apply the Second Amendment to the states. It can find the Second Amendment to be incorporated in the due process clause, just as it has done with the other provisions of the Bill of Rights.

Third, did a purportedly conservative Supreme Court engage in judicial activism? Mr. Levy is right in explaining the need to get past the rhetoric of judicial activism and restraint. Both liberals and conservatives, at times, want to overturn the decisions of popularly elected legislatures; the disagreement is over when to do so, and simplistic rhetoric provides no answers. But I think he is wrong in his statement that “if “activism” means rendering legal judgments based on the public policy preferences of judge’s, then it should be roundly condemned.”

There is often no way for Justices to decide constitutional cases without using their own views and ideology as a basis. Strong arguments can be made for either view of the Second Amendment. Not surprisingly, the conclusions of the Justices reflect their ideology. Justices cannot decide what is a compelling, or an important, or a legitimate government interest except by making value choices.

District of Columbia v. Heller profoundly illustrates how constitutional decisionmaking will often inevitably be a product of the Justices’’ views. Conservatives long have favored gun rights and Justice Scalia took this position, even though it required him to abandon the conclusions that should have followed from his traditional methods of constitutional interpretation. The case thus powerfully demonstrates that Justice Scalia’’s constitutional rulings, despite his professions to the contrary, ultimately are animated by his conservative politics.

His opposition to abortion rights, his hostility to all forms of race-conscious remedies, his desire to allow school prayer and aid to parochial schools, and his support of gun rights all come from a conservative political agenda, not a method of constitutional interpretation. Unless one believes that the framers’’ intent and the contemporary Republican platform are identical, it is clear that Justice Scalia’’s constitutional decisions are a product of his policy preferences.

In fact, had Justice Scalia been true to his own interpretive philosophy, rather than his conservative politics, he would have had to come to the opposite conclusion and find that the Second Amendment protects a right to possess firearms only for purposes of service in the militia. First, Justice Scalia repeatedly has emphasized the importance of focusing on the text in interpreting legal documents. Justice Scalia could find an individual right to have guns only by effectively ignoring the first half of the Second Amendment. Yet a cardinal rule of interpretation is that every clause of a provision must be given meaning. Justice Scalia interprets the Second Amendment as if it said, ““The right of the people to keep and bear arms shall not be infringed.”” But that’’s not what the provision says. The only way to give meaning to both clauses is to conclude that the Second Amendment protects a right to have firearms only for purposes of militia service.

Justice Scalia says that the first half of the Second Amendment is the prefatory clause and the second half is the operative clause, and that a prefatory clause never can negate an operative clause. But that is circular. Both halves of the Second Amendment are “operative.” The first half negates the second only if one starts with the conclusion that the Second Amendment protects a right to possess weapons apart from militia service.

Second, if there is ambiguity in the text, Justice Scalia has said that it is important to look to its original meaning at the time the provision was adopted. James Madison drafted the Second Amendment, as he did all of the provisions of the Bill of Rights. His initial draft of the Second Amendment included a provision providing an exemption from militia service to those who were conscientious objectors. It provided: ““The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”” The inclusion of this clause in the Second Amendment strongly suggests that the provision was about militia service.

Third, Justice Scalia can come to his conclusion only by abandoning stare decisis. Every prior Supreme Court decision interpreting the Second Amendment, and every federal court of appeals decision until a few years ago, rejected the view that the Second Amendment protects an individual’’s right to have guns other than for militia service.

In United States v. Miller, the Supreme Court expressly declared that the Second Amendment was limited to safeguarding possession of firearms for militia service. The Court upheld a federal law prohibiting possession of sawed-off shotguns by explaining that they were not weapons used in militia service at the time the Bill of Rights was ratified. The Court was clear that it believed that the Second Amendment was about protecting a right to have firearms for militia service.

But despite all of this, the conservatives on the Supreme Court found the District of Columbia law unconstitutional and opened the door to Second Amendment challenges to countless other statutes and ordinances. In doing so, they showed that the conservative rhetoric about judicial restraint is a guise that is used to oppose rights they don’’t like. When it serves their political agenda, conservatives, such as Justice Scalia, are very much the activists.

Fourth, what happens next on the political front? I don’’t believe that the Second Amendment will matter much in the 2008 presidential election. With the economy in deep trouble in so many different ways — recession, foreclosures, escalating prices for food and fuel — gun rights just aren’’t going to matter much to the swing voters who will decide this election.

Erwin Chemerinsky is Dean and Distinguished Professor of Law at the University of California, Irvine School of Law.

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.”

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