The Heller Paradox: A Response to Robert Levy

I appreciate the opportunity to participate in this discussion. It also gives me a chance to congratulate Bob Levy and his team publicly on their historic victory in District of Columbia v. Heller.

Heller as Judicial Activism

Levy’s discussion of judicial activism opens the door to a discussion of the merits of the majority opinion. I can’t resist walking through it. My view is that legal historians will regard the Heller decision as a prototypical misuse of judicial power to advance an ideological agenda. Not Bush v. Gore, but close.

Levy defines judicial activism as “rendering legal judgments based on the judge’s public policy preferences.” “Results-oriented jurisprudence, based on subjective value judgments,” he writes, “may be proper for a legislator, but not for a judge.” This is a dead-on description of Justice Scalia’s opinion, in which five justices rewrote the Second Amendment to enshrine their policy views about restrictive gun laws. Conservative law professor Douglas Kmiec agrees. In an extraordinary recent article disclosing his own family’s gun violence tragedy, Kmiec praises Justice Scalia’s “career of reminding his fellow judges how important it is not to read their own personal experiences or desires into the law,” but finds that principle dishonored in Scalia’s Heller opinion. “From their high bench on that morning,” he wrote, “it would not be the democratic choice that mattered, but theirs. Constitutional text, history, and precedent all set aside.”

The “results-oriented jurisprudence” of the majority is most evident in its treatment of the constitutional text. In Heller, Justice Scalia’s textualism is transparently inconsistent and manipulative. In opposition to the “militia purpose” view of the Second Amendment, he advances numerous examples of the usages of the phrases “keep arms” and “bear arms” to refer to a non-militia right. For example, he cites a 1734 text providing, “Yet a Person might keep Arms in his House, or on his Estate, on the Account of Hunting, Navigation, Travelling, and on the Score of Selling them in the way of Trade or Commerce, or such Arms as accrued to him by way of Inheritance.” How does he know this usage of “keep Arms” is unrelated to militia service? Because the context suggests that it refers to private activities alone. As to “bear arms,” he cites various state constitutional provisions that guarantee “every citizen a right to bear arms in defence of himself and the State.” We know “bear arms” includes a non-militia right in those provisions because of the context in which the phrase appears, particularly the phrase “defence of himself.” These examples demonstrate that context is critical to meaning.

When it comes to the Second Amendment, however, Scalia interprets “keep and bear Arms” by ripping the phrase out of context; that is, by artificially separating the phrase from its stated purpose of ensuring a “well regulated Militia … necessary to the security of a free State.” The issue is not whether “keep Arms” and “bear Arms” could have non-militia meanings in other contexts. The issue is the meaning of the phrase “keep and bear Arms” in the context of a provision declaring the importance of a “well regulated Militia … to the security of a free State.” The closest contemporary usage of “the right of the people to keep and bear arms” was in the Massachusetts Bill of Rights, which provided that “the people have a right to keep and bear arms for the common defense,” in a provision that also warned of the dangers of peacetime armies and urged civilian control of the military. How do we know that “keep and bear arms” in that provision did not refer to individual self-defense? Because its context says otherwise. In a similar way, the meaning of the same phrase in the Second Amendment is affected by the context supplied by the militia language. Only through highly selective reliance on context to derive meaning does Scalia arrive at his predetermined conclusion.

The majority disguises its unprincipled use of context through the sleight-of-hand of referring to the militia language as “prefatory” as opposed to the other “operative” language of the Amendment. It treats the militia language as if it were equivalent to “whereas” clauses in legislative language, but this is clearly wrong. The preamble to the Constitution may be analogous to legislative “whereas” clauses, in that it is not independently enforceable as a source of substantive powers or rights. But the first thirteen words of the Second Amendment are only less “operative” than the remainder because five justices of the Supreme Court have now decreed it to be so.

Justice Scalia’s tortured path thus “elevates above all other interests the right of responsible citizens to use arms in defense of hearth and home,” in a text in which this interest is entirely hidden and in which the “security of a free State,” not the security of “hearth and home” is the only expressed purpose of the guarantee. Grotesque. (To borrow a word from Justice Scalia).

Legal Implications

As indefensible as the majority’s opinion is in addressing the meaning of the Second Amendment, it nevertheless is likely to have a limited practical effect on gun laws less restrictive than a handgun ban. In this, the Heller decision should prove to be a sharp disappointment to the gun lobby and other Second Amendment extremists.

First, it is clear that there are not five votes on the Supreme Court for applying a “strict scrutiny” standard to gun laws. This was an important setback for Heller and a great victory for public safety.

Second, the majority took the highly unusual step of commenting on the constitutionality of numerous laws not at issue in the case, making it clear that a wide range of gun control laws remain “presumptively lawful.” These include (1) prohibitions on carrying concealed weapons (which the Court found were held lawful under early state Second Amendment analogues); (2) prohibitions on firearms possession by felons and the mentally ill; (3) laws forbidding firearms in “sensitive places” like schools and government buildings; (4) laws imposing “conditions and qualifications” on the commercial sale of arms (which could include background checks, waiting periods, licensing, etc.); (5) bans on “dangerous and unusual weapons” (which could include machine guns and assault weapons); and (6) laws regulating the storage of firearms to prevent accidents. Then, in a telling footnote, the Court adds that its list of “presumptively lawful regulatory measures… does not purport to be exhaustive.”

Although we will no doubt see an avalanche of Second Amendment claims (most by criminal defense lawyers on behalf of their clients seeking to avoid indictments and convictions for violations of gun laws), generally 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. Regardless of whether the Heller majority’s newly discovered right eventually is incorporated as a restraint on the states, its significance may well prove more symbol than substance.

Political Implications

Levy’s discussion of next steps on the political front focuses on the short-term questions for the District of Columbia and on the two Presidential candidates. He misses the true long-term political significance of Heller.

One of the gun lobby’s core arguments against reasonable gun laws is that every new restriction on guns is but a step down the “slippery slope” to gun confiscation and thus is a threat to ordinary gun owners. The “slippery slope” is key to the National Rifle Association’s strategy to make the gun issue a “cultural” or “wedge” issue politically. It frames gun control as an attack on a valued personal possession and, indeed, on a way of life symbolized by that possession.

In short, the gun lobby needs the debate to be about banning guns that are commonly used by law-abiding Americans. By erecting a constitutional barrier to a broad gun ban, the Heller ruling may have flattened the gun lobby’s “slippery slope,” making it harder for the NRA to use fear tactics to motivate gun owners to give their time, money and votes in opposing sensible gun laws and the candidates who support those laws. This is especially true since the majority of gun owners support reasonable gun control proposals on their merits. A recent poll shows that 83% of gun owners support closing the “gun show loophole” by extending Brady background checks to private sales at gun shows. Conversely, the ruling may make it easier for advocates of stronger gun laws to ensure that gun control is viewed as the public safety issue that it is, rather than as a divisive, cultural issue.

This is the Heller paradox. A conservative majority violated every concept of judicial restraint to create a new constitutional right that may have little practical impact on gun control laws, but may instead weaken the gun lobby’s power to block the sensible gun control proposals that will dominate the debate in the future. Viewing Heller from the perspective of the NRA’s leadership, an old expression comes to mind: “Be careful what you wish for. It could come true.”

Dennis A. Henigan is Vice President for Law and Policy at the Brady Center to Prevent Gun Violence.

Also from this issue

Lead Essay

  • 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.

  • 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.

  • 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.”

  • 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.