Friday, June 27, 2008

Supreme Court: Right on the Gun Right

There’s so much of significance in District of Columbia v. Heller.

There's the Court’s decision about the meaning of the 2d Amendment: it’s a right of individuals. The Court’s more specific ruling: the D.C. gun law banning handguns violates that right. The Court’s division: another 5 – 4 vote. The make up of the 5 – 4 split: the conservatives on one side, the liberals on the other. The difference between the majority and dissent: Justice Anthony Kennedy’s vote. The Kennedy phenomenon: his vote has been the swing in the hottest-button cases like Heller, like Kennedy v. Louisiana [no death penalty for child rape; see the June 25 posting in New York Court Watcher], like Boumediene [habeas corpus for alien detainees; see the June 14 posting]. The remaining eight justices were simply true to their respective ideological bents: Roberts, Scalia, Thomas and Alito voted like political conservatives in each of the three cases, while Stevens, Souter, Breyer and Ginsburg voted like political liberals.

But perhaps the most fascinating aspect of Heller is how it confirms, yet again, the nonsense about liberal activism and conservative restraint. And the nonsense about interpretive methodology as the characteristic that distinguishes the justices.

Here in Heller it was the conservatives who were activist. And it was the conservatives who eschewed strict interpretation, textualism, or any other narrow way of reading a constitutional right. They did what they usually condemn the liberals for doing—i.e., broadly interpret a constitutional right—and in doing so, the conservatives seem to have gotten it right.

Let's be clear. It was the five justice conservative majority, speaking through Justice Scalia—the Court’s harshest critic of judicial activism—who invalidated a duly enacted law. It was they who overruled the wishes of the people as expressed through their representatives. They who did so even though the 5 - 4 invalidated law was hardly “unconstitutional beyond a reasonable doubt” (the restraintists’ refrain). They who construed the gun right expansively. Who extended its protection at the expense of the authority of the “democratic branches” (again, the restraintists’ refrain). Who extended the application of the 2d Amendment to the District of Columbia and implicitly to the states as well without an explanation grounded in text, or in original meaning, or in some other constitutional provision, or in some theory, or in anything else. Who disregarded the fairly clear implication of long-settled precedent (the 1939 decision in U.S. v. Miller) that the gun right was tied to a state’s militia. Who disregarded the very language of the 2d Amendment which certainly suggests that tie. And who, just like those god-awful result-oriented liberal activists do with the rights that they prefer, applied a broad principle which they found to underlie the right to bear arms—i.e., the right to protect self and home and hearth.

[Disclosure: I emphatically do not oppose judicial activism, nor do I particularly favor judicial restraint. Rather, my view is that courts should be judicially active in the defense of rights and liberties and in the enforcement of equal justice. I believe it an abdication of the most crucial judicial responsibility when the courts are stingy, timid or otherwise hesitant in giving full effect to the Bill of Rights, the Fourteenth Amendment, state constitutional rights, and other guarantees that insure a free society. I have expressed these views frequently in speech and in writings. See e.g., Judicial Activism, Judges’ Speech, and Merit Selection: Conventional Wisdom and Nonsense, and Changing Roles: The Supreme Court and the State High Courts in Safeguarding Rights, both of which are available on my SSRN author page:]

Notwithstanding that the self-proclaimed judicial restraintists on the Court behaved like the liberal judicial activists they condemn—doing so, of course, in the service of their own politically conservative position on the 2d Amendment—their conclusion is not the stretch they would surely have accused the liberals of making. Indeed, it seems entirely sound. At the least, it seems the better of the two competing views on the right to bear arms.

The “states rights” view emphasizes the prefatory language of the 2d Amendment. That's the view, rejected by the majority, that the right to bear arms is inextricably linked to the right of state citizens to help defend the "security of [their] free state," by participating in a “militia” organized and “well regulated” by that state. The “individual right” view, endorsed by the majority, emphasizes the Amendment’s main clause: the “right of the people to keep and bear arms.” This view has considerable historical support, and it conforms to the apparently prevailing notion of the colonists and the Founders. It is reflected in the ancient view embraced by the colonists and the Founders, as well as by early legal authorities, that the freedom of individuals to keep and bear arms is an essential protection against tyranny, and that it is part of an individual’s natural right of self-preservation and defense.

This individual right view of the 2d Amendment is spelled out at length in Scalia’s majority opinion. Over the last few decades, it has been researched and argued by others in a large and still growing body of scholarship. Perhaps no one is more responsible in recent years for opening the eyes of constitutional scholars in this regard than Sanford Levinson. His 1989 article in the Yale Law Journal, The Embarrassing Second Amendment, was a call to liberals to acknowledge the right to bear arms as an integral part of the Bill of Rights, no less so than the rights that liberals and civil libertarians typically defend with gusto.

Levinson’s title says it all. The existence of the right to bear arms in the Bill of Rights, conspicuously up front as the 2d Amendment, is somewhat awkward for most liberals. It seems an anachronism that can and should be interpreted away.

And now, in Heller, the conservative justices have used the liberal justices’ own activist, loose-construction, rights-expanding interpretive tools to make that gun right stronger than ever.