The Heller Majority: Wrong and Unprincipled

On the issue of whether Heller represents conservative legal activism, I’d like to go back to an intriguing argument made by Bob Levy several days ago. Levy argues that the law professors who favor gun control, but reject the “militia purpose” view of the Second Amendment, effectively insulate Justice Scalia’s majority opinion from the charge of judicial activism. Levy’s unstated premise seems to be that since there are liberal law professors who agree with Justice Scalia’s view of the Second Amendment, Scalia’s opinion in Heller must be as principled as the views of the liberal law professors.

How does this follow? As Dean Chemerinsky points out, Scalia’s opinion enforced his own political views; if Levy accurately has characterized them, the views of the liberal law professors about the Second Amendment seem at odds with their own political views. Of course, the fact that Scalia’s ruling is consistent with his personal ideology is not sufficient to support the charge of judicial activism. The other necessary element is that his Heller opinion is indefensible in terms of any neutral principle of constitutional interpretation. In my judgment, this is also true of the views of the liberal law professors. The views espoused by Tribe, Levinson, and Amar on the Second Amendment are clearly wrong as a matter of text and history. (It is particularly notable that their interpretation of the Amendment has been subject to a withering attack by professional historians like Jack Rakove of Stanford, Saul Cornell of Ohio State, and many others.) Indeed, it is telling that the law professors failed to convince a single member of the liberal minority on the Supreme Court on the meaning of the Second Amendment. Scalia is wrong and unprincipled. The liberal law professors are just wrong.

There is no better illustration of the abandonment of neutral principles by the Heller majority, and Bob Levy, than their cavalier disregard of what the Supreme Court has termed “the first principle of constitutional interpretation” — that the Constitution must be read to give effect to every word and that interpretations that render portions of its text “mere surplusage” must be avoided. Neither Justice Scalia, nor Bob Levy, can deny that their interpretation renders the first thirteen words of the Amendment of no effect. The Second Amendment would guarantee a right to have guns in the home for self-defense whether those words were included or not. In place of the “no surplusage” principle, which dates to Marbury v. Madison, we now have a new principle, for which Justice Scalia offers no precedent, that the words of a constitutional provision must have merely a “logical connection” with one another. It is particularly galling that the Constitutional text rendered “surplusage” by the Supreme Court is the militia language of the Second Amendment since, as the historians have documented, that language underwent several material changes during the deliberations of the First Congress, including moving its placement in the amendment itself. If the militia language were merely “explanatory, not operative,” as maintained by Levy, why was it the subject of such careful editing? The Framers apparently attached far greater importance to it than do Levy and the Heller majority. Nor do Levy and the Heller majority offer any account of why the Framers would place “explanatory, not operative” language in the Second Amendment, but not in any other provision of the Bill of Rights.

On the issue of standard of review, Bob Levy recognizes that “different rights have different purposes and run up against different sets of government and private interests.” This is why the analogy between the First Amendment’s freedom of expression and our new Second Amendment right to private gun ownership must fail.

It is surely true, as he says, that the right to publish a booklet on bomb making has implications for public safety. But surely he would not maintain that this right is constitutionally analogous to the right to possess a bomb. I am not here claiming that Heller created a right to possess bombs, but rather showing that the right to possess lethal weaponry involves a different set of government and private interests than the right to express oneself about lethal weaponry.

For purposes of this discussion of Heller, the appropriate question is whether there is a constitutionally significant distinction between the “right of D.C. residents to keep a handgun in their home,” as Levy puts it, and the First Amendment right to talk about keeping a handgun in the home. I would hope that the answer is obvious, but perhaps not if you are unwilling to recognize the well-established additional risks of more guns in more homes — both for the homes themselves and for the general community.

To mention a few of the risks associated with exercising our newfound constitutional right to have a handgun in the home: (1) accidents with guns are more lethal than accidents with other weapons like knives; (2) a gun in the home is associated with a higher risk of suicide, especially among adolescents with no apparent psychiatric disorder; (3) incidents of domestic abuse involving firearms are far more likely to result in death than such incidents not involving firearms; and (4) because guns are in such high demand from the criminal element, large numbers of guns are stolen from residences, thus fueling the illegal market in guns.

One study of all fatal and nonfatal gunshot injuries involving guns kept in the home during a specific time period in Memphis, Seattle, and Galveston showed that for every time such a gun was used in a self-defense or legally justifiable shooting, there were four unintentional shootings, seven criminal assaults or homicides, and eleven attempted or completed suicides. Moreover, handguns are disproportionately involved in gun fatalities in the home. Surely it cannot be maintained that the government’s interest in regulating the right to handguns in the home is no different than its interest in regulating the right to speak about handguns in the home.

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.