July 16, 2008
A post-Heller world?
Robert Levy examines what the future holds for Americans after the nation's highest court affirmed that Second Amendment actually protects the People and not the government.
In District of Columbia v. Heller, the final opinion of the Supreme Court’s 2007-08 term, Justice Antonin Scalia re-wrote Second Amendment jurisprudence. With a 5-4 majority, Scalia held unequivocally for Mr. Heller on two central questions:
First, the Second Amendment protects an individual right to possess a firearm, unconnected with militia service, and to use it in the home for self-defense.
Second, all three of the D.C. laws that Heller challenged are unconstitutional: (a) the outright ban on handguns acquired after 1976, (b) the ban on carrying pre-1976 handguns from room to room without a permit, which cannot be obtained, and (c) the requirement that rifles and shotguns in the home must be unloaded and either disassembled or trigger-locked.
Much of the majority opinion and the dissent by Justice John Paul Stevens focused on contrasting interpretations of constitutional text, structure, and history. Without revisiting those arguments, about which volumes have been written, I’d like to comment briefly on four issues that received less attention in the opinions, but which have significant implications for the future. (1) What gun regulations will now be permissible? (2) Will the Second Amendment be “incorporated” so that it can be invoked against state and local governments? (3) Did a purportedly conservative Supreme Court engage in judicial activism? And (4) what happens next on the political front?
What Gun Regulations Will Now Be Permissible?
Justice Scalia accepted that the Second Amendment, like the First, is not absolute. He noted, for example, that concealed carry prohibitions had been upheld, although he stopped short of stating that all such prohibitions would be sustained under Heller’s reinvigorated Second Amendment. Ditto for the constitutionality of licensing requirements, which Heller had not challenged.
Scalia went even further in stating that the Court did not “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” He added that he could also find “support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”
It’s likely, therefore, that Heller was well advised not to antagonize the centrist(s) on the Court by demanding de-regulation of weapons like machine guns. Heller’s success was due in part to the moderate, incremental relief that he sought. Subsequent cases will have to resolve what weapons and persons can be regulated and what restrictions are permissible. Those questions will depend, in large measure, on the standard of review that the Court chooses to apply — an issue not resolved in Heller, despite considerable attention to that subject in various amicus briefs, including one from Solicitor General Paul Clement for the Justice Department.
Clement suggested that the Court apply a form of “heightened” scrutiny in reviewing gun regulations. Specifically, he advised the Court to consider “the practical impact of the challenged restriction on the plaintiff’s ability to possess firearms for lawful purposes (which depends in turn on the nature and functional adequacy of available alternatives).” Although Clement acknowledged that the D.C. gun ban “may well fail such scrutiny,” he professed concern that the appellate court had mistakenly applied a different “per se” test, which would preclude “any ban on a category of ‘Arms’ that can be traced back to the Founding era.”
Heller responded that the D.C. gun ban is unconstitutional no matter what standard of review the Supreme Court were to apply. Accordingly, the Court did not have to address the standard-of-review question. On the other hand, if the Court decided to tackle that issue, then Heller urged that “strict,” not heightened, scrutiny be the standard. To justify a gun control regulation under strict scrutiny, government would have to demonstrate a compelling need for the law, and then show that any restrictions were narrowly tailored — no more invasive than necessary to achieve the government’s objectives. Traditionally, the Court has strictly scrutinized all government regulations that infringe on a “fundamental” right — one that is “implicit in the concept of ordered liberty” or “deeply rooted in the Nation’s history and traditions.” Virtually all of the Bill of Rights qualify, and the right to keep and bear arms — indisputably fundamental — is no exception.
Ultimately, the Court agreed with Heller that D.C.’s ban on all functional firearms in the home is unconstitutional “under any of the standards of scrutiny the Court has applied to enumerated constitutional rights.” But the Court did not choose a specific standard, and may hereafter apply something less than the strict scrutiny standard Heller had suggested.
On the other hand, the Court categorically rejected “rational basis” scrutiny, which has been a rubber-stamp for virtually all legislative enactments. And the Court also rejected Justice Stephen Breyer’s “interest-balancing” test, which is no more than a repeat of the process that legislatures undertake in crafting regulations.
Something higher is demanded, said Scalia, when an express constitutional right is at issue. At a minimum, it appears that the Court will adopt some version of intermediate or heightened scrutiny, as urged by the Justice Department.
Imagine that: An enumerated individual right, deserving of something more than rational-basis scrutiny (legalese for "the gummint gits to do whatever it wants"). Keep reading; Levy's take on the future of Second Amendment politics and jurisprudence seems on target.
Posted by Mike Lief at July 16, 2008 11:05 PM
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DANG . . . This is EXACTLY the speech I had written just in case anybody called on me.
Posted by: The Little Coach at July 17, 2008 03:31 PM
Below, from the Los Angeles Daily Journal, a different perspective from Erwin Chemerinsky.
Personally, my only problem with the Heller opinion, as I've noted previously, is not that it conferred a new right on the People; I'm willing to accept the possibility that it merely announced for the first time, a right that has in fact always been there. No, my problem with it is the permissible limits to "keep and bear arms" set forth by Scalia make clear that he had a political agenda and personal interests, not a principle, that he wanted to advance.
But what's up with conservative thinkers (?), in a post-Heller world? Why can't boot-licking toadies, like Robert Levy, bring themselves to admit that Scalia isn't any more principled than the more progressive justices, he just has a different agenda. He's an activist, plain and simple.
Anyhow, here's the column...
To Scalia, Judicial Restraint Means Opposing Rights He Doesn't Like
FORUM COLUMN
By Erwin Chemerinsky
Few cases in recent years have attracted as much media attention as the Supreme Court's decision interpreting the Second Amendment in District of Columbia v. Heller, 128 S.Ct. __ (June 26, 2008). By a 5-4 margin, the Supreme Court found that the Second Amendment protects an individual's right to possess firearms and thus invalidated a District of Columbia ordinance prohibiting possession of handguns and regulating long guns.
This is the first time in American history that the Supreme Court ever has held that the Second Amendment protects a person's right to have guns other than for service in the militia. It is the first time that the court ever has struck down any law as violating the Second Amendment. As a result, the case undoubtedly will lead to a tremendous amount of litigation, as there will be challenges to every federal, state or local law regulating firearms or their use in any way. It is hard to think of any case that opened the door to as much new litigation.
The court split exactly along ideological lines. Justice Antonin Scalia wrote the majority opinion, which was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito. Both Justice John Paul Stevens and Justice Stephen Breyer wrote dissenting opinions, which were joined by Justices David Souter and Ruth Bader Ginsburg.
Indeed, Scalia's majority opinion can be understood only through this ideological prism. Conservatives long have favored gun rights and Scalia took this position, even though it required him to abandon his traditional methods of constitutional interpretation. The case thus powerfully demonstrates that 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 supporting of gun rights all come not from a method of constitutional interpretation, but a conservative political agenda. Unless one believes that the framers' intent and the contemporary Republican platform are identical, Scalia's decisions cannot be seen as reflecting an originalist method of constitutional interpretation.
In fact, had Scalia been true to his own interpretive philosophy, rather than his conservative politics, he would have had to come to the opposite conclusion and found that the Second Amendment protects a right to possess firearms only for purposes of service in the militia. First, Scalia repeatedly has emphasized the importance of focusing on the text in interpreting legal documents. The Second Amendment states: "A well regulated Militia being necessary to a free state, the right of the people to keep and bear Arms, shall not be infringed."
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. 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.
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, Scalia has said that it is important to look to the original meaning at the time the provision was adopted. James Madison drafted the Second Amendment, as he did for 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.
Moreover, as Stevens pointed out in his dissent, there are strong reasons for believing that the framers were especially concerned about protecting state militias. The founding generation was deeply distrustful of a large standing army and saw the solution in well-armed state militias. Scalia ignores that the phrase "keep and bear arms" had a specific meaning at the time; it was about having weapons for purposes of military service.
Third, 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, 307 U.S. 174 (1939), the Supreme Court expressly declared that the Second Amendment was limited to safeguarding possessing of firearms for militia service. The court upheld a federal law prohibiting possessing 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. The court said: "With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view. ... The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators."
Fourth, in opinion after opinion, Scalia has professed the need to defer to elected officials and railed against judicial activism of justices substituting their own views for those adopting by legislatures. The District of Columbia law invalidated by the court had been on the books for 32 years. It was the product of a popularly elected legislature.
In fact, even if the Second Amendment is interpreted to protect an individual's right to have guns other than for militia service, judicial deference would lead to the court upholding regulation of firearms so long as the government was acting reasonably. Scalia, in his majority opinion, gave great weight to the practice in the states. But he pointedly ignores that all of the 42 states that have state constitutional provisions protecting an individual's right to have guns have interpreted them to allow regulation so long as it is reasonable.
As Breyer argued in his dissent, the District of Columbia law surely meets that test. The District of Columbia law seeks to further the legitimate (and compelling) goal of decreasing gun violence and increasing public safety. Many studies have shown that the law has been successful in this regard. Even though these studies are disputed, they unquestionably are sufficient to meet a reasonableness test of review.
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 all of the conservative rhetoric about judicial restraint is a ruse that is used to oppose rights they don't like. When it serves their political agenda, conservatives, such as Scalia, are very much the activists.
Erwin Chemerinsky is dean and distinguished professor of law at the University of California, Irvine School of Law.
Posted by: Bull Butz at July 18, 2008 07:41 AM