In Scalia’s Defense

Some of the points that Erwin Chemerinsky raises (e.g., the conscientious objector clause in Madison’s original draft of the Second Amendment; his interpretation of U.S. v. Miller) are addressed in Justice Scalia’s majority opinion. I think that Scalia rebuts them effectively; if you don’t think so, nothing I can write will change your mind.

So in the interest advancing the discussion, rather than recapitulating the Scalia/Stevens opinions, let look at some new points that Chemerinsky makes.

“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.” Not true. As the majority opinion points out, Georgia’s handgun ban was declared an unconstitutional violation of the Second Amendment by the Georgia Supreme Court in 1846, in Nunn v. State. Also, the 1902 Idaho case of In re Brickey relied on the Second Amendment and the state constitution in voiding a law which banned gun carrying. You can argue that the cases were wrongly decided, but they did what they did on the explicit basis of the Second Amendment.

Besides, even if Chemerinsky were right, someone could have written in 1930, “Not one law has been declared unconstitutional on the basis of the Free Exercise clause.” (Just in case I’m wrong about Free Exercise, and have missed some state case from 1872, the same point could have been made in 1930 about most of the other freedoms in the First Amendment, and about many other constitutional freedoms.) A long period of judicial failure to enforce a right does not create a rule that future judges should fail to do their duty to protect an enumerated right.

My guess is that Chemerinsky is correct about incorporation via the privileges or immunities clause. I share Levy’s belief that the Court’s 19th century PI case were egregiously wrong. But to incorporate the Second Amendment via privileges or immunities would inescapably commit the Court to total incorporation of the Bill of Rights. (Maybe there’s some sophisticated counter-argument to this, but I haven’t heard of it yet.). So the Court would also have to incorporate the Third Amendment, which wouldn’t be a problem, since states don’t quarter soldiers in people’s homes during peacetime anyway. But PI incorporation would also mean that the grand jury right is applicable to the states; my guess is that most of the Court would not want to impose such a significant change on the criminal procedure of a large number of states.

It’s hard to know what to make of Chemerinsky’s claim that Scalia’s “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.”

Abortion is not mentioned in the text of the Constitution, nor is there a long historical tradition of legal abortion in the United States. (Abortion was illegal at common law when the Constitution was ratified.) So Scalia’s view that the Constitution does not restrict legislative choice about abortion one way or the other seems entirely consistent with his view that the Constitution does constrain legislative choices on matters which are in the constitutional text.

If Scalia’s Heller opinion is in some way inconsistent with some other prior opinion of Scalia, then perhaps that prior opinion by Scalia was wrong. The Heller opinion was a perfect example of Scalia applying the interpretive theory he says he believes in: textualism and originalism.

Chemerinsky counters that “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.” Alaska, Hawaii, and South Carolina have language identical to the Second Amendment in their state constitutions. The right is treated as a standard (not militia-only) individual right in Alaska and South Carolina, while Hawaii courts have thus far been agnostic. Many other state constitutions have other language which would seem (at least for some modern readers) to be militia-only, such as a right to arms for which “the common defense” is the only stated purpose. But the vast majority of state constitutional cases have interpreted these arms rights as encompassing a right to arms for a variety of lawful purposes, including self-defense in the home. (For details, see Kopel, What State Constitutions Teach About the Second Amendment, 29 N. Ky. L. Rev. 823 (2002).)

Chemerinsky’s militia-only reading of the Second Amendment is not linguistically impossible, but it is contrary to a long tradition in American law. The only counter-tradition is the Supreme Court’s failure to act against lower federal courts’ aggressive, politically minded misreading of United States v. Miller. (For details on this, see Brannon Denning, Can the Simple Cite be Trusted? 26 Cumb. L. Rev. 961 (1996).) Fortunately, the period of Supreme Court indifference to the Second Amendment has ended, as the period of Supreme Court indifference to the First Amendment ended several decades ago.

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.