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 Mr. 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.

Will the Second Amendment Be “Incorporated”?

Imminently, the Court will have to decide whether Second Amendment rights can be enforced against state governments. Washington, D.C. is not a state; it is a federal enclave within which Congress exercises plenary legislative power. Until 1868, when the Fourteenth Amendment was ratified, the Bill of Rights applied only to the federal government, not to states or to municipalities legislating under delegated state authority. But in a series of post-Civil-War cases, the Supreme Court held that the Fourteenth Amendment was intended to “incorporate” most of the Bill of Rights in order to hold state governments accountable for violations. Interestingly, the Court has never ruled that the Second Amendment has been incorporated. If gun control regulations are to be challenged in places such as Chicago and San Francisco, that question must be answered.

In contemplating incorporation of the Second Amendment, the Court might also reexamine the means by which incorporation of other rights has been effected. One choice, rebuffed by the Court, would have been to use the Privileges or Immunities Clause of the Fourteenth Amendment (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens”). That Clause, some argue, was intended by the Framers to secure natural rights of property and liberty against state transgressions. But it was stripped of any meaningful substance in the infamous Slaughter-House Cases (1873), in which the Court concluded that privileges or immunities were those of national citizenship — rights that would not have existed but for the existence of the federal government — such as access to seaports, navigable waters, the seat of government, and the federal courts.

After Slaughter-House, the Court enforced substantive rights against the states through two other clauses of the Fourteenth Amendment: Equal Protection and Due Process. Both clauses apply to “any person,” whereas the Privileges or Immunities Clause applies to “citizens.” Further, the Equal Protection Clause does not, by its terms, mandate specific rights. Instead, it requires only that the laws be equally applied to all persons. And the Due Process Clause, as its name implies, is better adapted to enforcing procedural rather than substantive rights. Yet it has been misused to establish an array of substantive rights nowhere grounded in the Bill of Rights, our common law heritage, or natural law tradition. At the same time, economic liberties — such as those related to contract, property, and the right to pursue an honest living without unreasonable government interference — have been given short shrift under the evolving doctrine of substantive due process.

Justice Scalia and his conservative allies might be open to revisiting substantive due process and the Privileges or Immunities Clause. Indeed, he devoted 8 pages of his 64-page opinion to analyzing post-Civil War legislation and commentators, even as he conceded that discussions taking place 75 years after ratification of the Second Amendment “do not provide as much insight into its original meaning as earlier sources.” Nonetheless, by affirming a post-Civil War understanding that the Second Amendment and related civil rights statutes gave freed blacks the right to keep and bear arms for self-defense, Scalia intimates that the amendment has been incorporated. Officially, however, he states that incorporation is “a question not presented by this case.” That said, the Court will definitely have an opportunity to rule on incorporation as Second Amendment challenges in Chicago, San Francisco, and elsewhere percolate through the federal system.

In United States v. Cruikshank (1875) and Presser v. Illinois (1886), the Court stated squarely that the Second Amendment is a limitation on the power of Congress, not state and local legislative bodies. Yet both of those cases arose prior to the Court’s incorporation doctrine, which took form beginning in 1897. As Scalia put it, Cruikshank “did not engage in the sort of Fourteenth Amendment inquiry required by our later cases.” In fact, Cruikshank also held that the First Amendment did not apply against the states — a notion that is obviously antiquated. It may be, as Ninth Circuit appellate judge Stephen Reinhardt has written, that Cruikshank and Presser “are now thoroughly discredited.” Even so, stated the Second Circuit in Bach v. Pataki (2005), Presser still controls; if it is no longer good law, the Supreme Court, not the lower courts, must reverse.

Until then, federal courts in Illinois and California will be constrained by Presser. That means Second Amendment challenges will almost certainly be rejected until the Supremes consider incorporation. In the end, the Second Amendment — a fundamental right, expressly enumerated, “implicit in the concept of ordered liberty,” and “deeply rooted in the Nation’s history and traditions” — will no doubt be incorporated. Perhaps the more interesting question is whether the vehicle for incorporation will continue to be the Due Process Clause, or will the Court side with Harvard Professor Laurence Tribe, who wrote in his treatise on American Constitutional Law that Second Amendment rights “may well … be among the privileges or immunities of United States citizens protected by § 1 of the Fourteenth Amendment against state or local government action.”

Did a Purportedly Conservative Supreme Court Engage in Judicial Activism?

I turn next to two issues that arise in context of the Heller opinion, but transcend the Second Amendment: first, judicial activism versus restraint; second, implications for the political branches.

In dissent, Justice John Paul Stevens quarreled primarily with Justice Scalia’s interpretation of historical events; but Stevens also implied that Scalia had abandoned true judicial conservatism by dragging the Court into the “political thicket” of gun control. “Judicial restraint would be far wiser,” wrote Stevens, than mediating a political process that is “working exactly as it should.” That’s quite an astonishing statement coming from Justice Stevens — the same Justice who had no such reservations just one day earlier when he voted to invalidate Louisiana’s death penalty for child rape and substitute an outright ban on capital punishment for any crime that isn’t fatal to its victim.

Demands for judicial restraint by the Court come more often from the political right. As I have written elsewhere (in a recent book co-authored with William Mellor): Some conservatives, reacting to the perceived excesses of the Warren Court and the ability of liberal interest groups to advance their agendas through the courts, insist that courts indiscriminately defer to the decisions of Congress and state legislatures. Yet blanket judicial deference effectively removes the courts from the meticulously crafted system of checks and balances that was designed by the Framers to prevent abuse of power. Over the years, the result of judicial abdication has been to expand government, at all levels, at the expense of individual rights.

When the legislative or executive branch exceeds its legitimate enumerated powers, the courts have the authority, indeed the duty, to declare that exercise of power unconstitutional. Deference in the face of excesses by the political branches, coupled with an allegiance to precedent, means that conservatives are rarely willing to overrule prior cases, leaving entrenched the very foundations of the regulatory and redistributive states they rail against. In practice, judicial restraint has mutated into judicial passivism, with a predictable result: more government power and fewer constitutionally protected individual rights.

Both liberals and conservatives take comfort in their often unfounded belief that legislatures will respond to the will of the public and make informed policy decisions that can be changed as public sentiment dictates. Though appealing in principle, that trust in the democratic process ignores the realities of governmental institutions. Through gerrymandering and other means, elected representatives are increasingly insulated from their constituents. Meanwhile, many policies are set and enforced by unelected, unaccountable agencies and commissions. What’s more, politically powerful special interests concentrate their resources to glean benefits from government — transferring the burden to other taxpayers, who do not perceive the cumulative cost of multiple schemes, each of which has a seemingly inconsequential price tag.

Are we to conclude, therefore, that judicial activism — that is, the type of judicial intervention routinely condemned by liberals and conservatives alike — is actually a good thing?

Yes, if activism means engagement — applying the law and the Constitution to scrutinize the acts of the executive and legislative branches. Judges have a responsibility to invalidate all laws that do not conform to the Constitution. Courts would be derelict if they endorsed unconstitutional acts merely because our elected representatives passed them. In that respect, overturning the D.C. gun ban was a clear example of principled judicial engagement.

But if activism means rendering legal judgments based on the judge’s public policy preferences, it should be roundly condemned. Results-oriented jurisprudence, based on subjective value judgments, may be proper for a legislator, but not for a judge. His role is to apply the law, not impose his policy preferences.

The trick, of course, is to distinguish proper from improper judicial intervention. That task is complicated by laws that are often unclear — either because the legislature has not done its job, or has intentionally left gaps for the courts to fill; or because the meaning of the law depends on the meaning of the Constitution, which can also be unclear. Members of the Court must, therefore, have a theory of the Constitution — in particular, a respect for limited government and individual rights. Those were the principles that the Framers applied in crafting the Constitution. The Heller opinion, true to that framework, upheld a right based solidly on the text, purpose, structure, and history of our founding documents.

What Happens Next on the Political Front?

Even as more litigation unfolds, courts are not the only venue for action in the wake of Heller. Congress also has a role to play in enabling D.C. residents to obtain a handgun for home possession. Because of the 1976 ban, there are no stores within the city where a handgun can be obtained. And federal law effectively forecloses handgun purchases by out-of-state residents. Therefore, someone who lives in D.C. cannot acquire a handgun either inside or outside the city. That’s a problem that Congress can address: Allow interstate handgun purchases as long as they follow the law in both the buyer’s state and the seller’s state.

Further, Congress should enact legislation to alter how D.C. processes gun registrations. Currently, the city does not follow the national instant criminal check system, or NICS. Would-be registrants have to jump through extra hoops: multiple pictures, fingerprints, and on and on. The process can take months. Congress should require D.C. officials to accept the NICS system followed by 49 of 50 states.

Near-term, the D.C. city council will have to alter the city’s gun control regime to comply with the Court’s directions. Until now, the D.C. government has taken the position, as expressed in the city’s court filings, that “Practical considerations, not arcane legal theories and historical excursions, should determine the … constitutionality of statutes like those at issue here.” Thankfully, the Supreme Court has reminded city officials that the Constitution is more than a guidebook to be cast aside whenever it is inconvenient. If the city attempts to circumvent the Court’s opinion, then Congress, under Article I, section 8, of the Constitution can and should exercise its plenary power over all legislative matters in the nation’s capital. Home rule, arising out of authority delegated by Congress to the D.C. government, is not a license to violate the Constitution.

There are, of course, national political implications as well. One of the two presidential candidates seems to appreciate the importance of gun owners’ rights. The other candidate appears less supportive. In his May 16 speech to the National Rifle Association, Sen. John McCain (R-AZ) claimed solid Second Amendment credentials, despite occasional disagreements with the NRA. Although he reaffirmed support for background checks and closing the “gun show loophole” — both of which are anathema to more fervent advocates of gun owners’ rights — McCain proudly noted, “For more than two decades, I’ve opposed efforts to ban guns, ban ammunition, [and] ban magazines.” Moreover, McCain signed a friend-of-the-court brief submitted on Heller’s behalf by a majority of both houses of Congress.

Sen. Barack Obama (D-IL) did not sign the brief. In fact, he reportedly stated, prior to issuance of the Heller opinion, that he backs the D.C. gun ban and opposes all laws allowing concealed carry. According to a 1996 statement, not subsequently repudiated, Obama would also ban the manufacture, sale, and possession of handguns. And more recently, he has accused Americans of clinging to their guns because they are bitter about the economy. Only recently, post-Heller, has Obama expressed somewhat tentative support for the Supreme Court’s interpretation of the Second Amendment.

Those contrasting positions are revealing. Voters now have an opportunity to assess both candidates’ positions and determine whether, as president, they would put the weight of the federal government behind measures that build on the Supreme Court’s decision in Heller — securing the right to keep and bear arms for self defense.

—

Robert A. Levy is senior fellow in constitutional studies at the Cato Institute, co-counsel to Mr. Heller, and co-author of The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom (Penguin/Sentinel, May 2008).

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.

Justice Stevens’s dissent, like Dennis Henigan’s essay in support of the dissent, does as well as possible with the materials available in support of his position. But the Stevens-Henigan denial of the Standard Model of the Second Amendment founders on the word “the.”

If you read the Scalia majority and the Stevens dissent in parallel, Justice Stevens keeps a serious intellectual contest going for a while. The majority and dissent argue about the rules of construction for preambles: to what extent, if any, does a preamble (in this case, about the importance of the militia) limit the operative clause (the right of the people)? Both the majority and the dissent cite various authorities on statutory construction from around the Founding Era.

The two sides argue about the meaning of “bear arms.” Each side can cite many examples of the term being used in its preferred way — to mean only bearing arms in military service (Stevens) or to mean bearing arms in a variety of ways, including personal defense and hunting (Scalia). Even if the reader believes, as I do, that Scalia wins the argument on points, the fight is hardly a knock-out.

But for the neutral reader, the fight over original meaning has to come to an end when the opinions analyze “the” right to keep and bear arms. The D.C. Circuit opinion pointed out that the phrasing indisputably shows that the right was a pre-existing one. That is, the right to keep and bear arms already existed before the Second Amendment was written. The Second Amendment merely imposed a legal requirement that the right not be infringed by the federal government. The 1875 Supreme Court decision in Cruikshank said the same thing, as both the majority and dissent agree.

So what was “the” right that pre-existed the Constitution? The majority opinion provides an obvious answer. It was the right of having arms for personal defense, as guaranteed by the 1689 English Declaration of Right, and as expounded by Blackstone: “the natural right of resistance and self-preservation,” which was effectuated by “the right of having and using arms for self-preservation and defence.”

If the majority is right on this point, then the Stevens dissent is plainly wrong; the Second Amendment was intended to protect a personal right to arms for self-defense. So Stevens spends a good deal of effort claiming that the 1689 English Declaration of Right and the 1789 Bill of Rights were intended to address different problems. His main support for the argument is that the state ratification debates were replete with anti-Federalist objections about the potential for abuse of the militia powers which are granted to Congress in Article I.

But Stevens’s theory requires that we ignore an obvious source of original meaning: James Madison himself. Madison’s notes for his speech introducing the Bill of Rights into the U.S. House of Representatives indicate that his arms rights amendment was based on the English arms right, and that it was intended to remedy two key defects in the English right. The first was that the English right applied only to Protestants. (Who constituted about 98% of the population.) Second, because any act of Parliament can be negated by a later Parliament, the 1689 Parliament’s adoption of the Declaration of Right would constrain the monarch, but not effectively constrain future Parliaments. According to Madison, “They [the proposed Bill of Rights] relate 1st. to private rights — … fallacy on both sides — espec[iall]y as to English Decln. of Rts — 1. mere act of parl[iamen]t. 2. no freedom of press — Conscience … attainders — arms to Protest[an]ts.”[1]

Suppose that Madison’s notes had been destroyed, and we had no knowledge of them. Would Stevens’s theory still be plausible?

Not really. If the pre-existing right is not the traditional Anglo-American right to have arms for personal defense, then what is “the” pre-existing right? Stevens claims that the pre-existing right was a right to serve in the militia while armed. Yet, as the majority points out, Stevens cannot cite a shred of evidence in support of his assertion of a pre-existing militia right.

Alone among the twenty amicus briefs filed in support of the handgun ban, Dennis Henigan’s well-written brief for the Brady Center recognized the critical importance of “the.” The brief addressed the problem by pointing out that the state militia system long predated the Constitution. Indeed, according to Henigan, it could be traced all the way back to King Henry II’s 1181 Assize of Arms. (The Assize required all free men to have particular types of weapons, depending on their social rank.) The brief should have followed the militia roots even further, back to King Alfred the Great’s (871-901) system of the Saxon fyrd. (Jefferson and other American Founders lauded the rough liberty of the Saxons, and disdained the rigid aristocracy imposed by the Normans.)

But whether one is talking about Massachusetts militia laws from 1775, or their English ancestors, those militia laws never speak of a “right” of serving armed in the militia. Militia service, like paying taxes, was always recognized as a duty. In the Whig tradition, it was an especially honorable one, but a duty nonetheless.

So there was no pre-constitutional militia “right.” There being none, the only possible antecedent for “the” right to keep and bear arms is the explicit English right to personal arms for self-defense, and its antecedent in natural law. That issue settled, Stevens’s claim that Second Amendment was originally intended to be a militia-only right collapses.

I think that Henigan is right that most current gun laws will be constitutional under Heller, even if the Supreme Court incorporates the Second Amendment into the Fourteenth Amendment, which would make the right to arms enforceable against state and local governments. This is a somewhat more sober view than the Brady Campaign’s frantic warning last year: “Sensible gun laws of every kind are put at risk by the ‘individual rights’ theory of the Parker decision.”

What gun laws are “sensible” under Heller? We know that bans on “dangerous and unusual weapons,” that is, “weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns” are valid. We know that “prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose” of “the inherent right of self-defense” is not.

Henigan is very likely right that the 1986 federal ban on new machine guns for people who are not government employees would be upheld by the current Court. Bans on so-called “assault weapons” are more doubtful, because those guns (like all other guns except machine guns) fire only one bullet each time the trigger is pulled. At the least, there may be constitutional problems with defining an illegal “assault weapon” based on the presence of trivial cosmetic features like bayonet lugs.

It is implausible to claim that air guns (which fire BBs or tiny pellets) are “dangerous and unusual” or “not typically possessed by law-abiding citizens for lawful purposes.” Thus, New York City’s complete ban on air guns, and New Jersey’s definition of some air guns as “assault weapons” may be constitutionally problematic. So too for D.C.’s ban on all self-loading guns. These guns (e.g., the Colt .45 pistol, or the .22-caliber rifles from Winchester or Ruger) constitute over half of all handguns sold in the U.S., and a very large fraction of rifles and shotguns.

The most commonly sold rifles in the United States today are self-loading AR-15 variants, made by a wide variety of companies. These guns are not machine guns, but they are black, and they do look like machine guns. These “sport-utility guns” are widely used in formal target competition. As best-selling guns, they are far from “unusual,” and their very prevalence is evidence that they are “typically possessed by law-abiding citizens for lawful purposes.” At the least, the constitutionality of bans on such guns is questionable under Heller.

Regarding gun storage laws, Heller struck down an ordinance that made it impossible for citizens to use a gun in the home for lawful self-defense. What about laws that merely make such usage extremely difficult? Oral argument may be instructive:

Justice Scalia: What would that [a self-defense exception to the D.C. ordinance required guns in the home be locked and disassembled at all times] — that you can, if you have time, when you hear somebody crawling in your — your bedroom window, you can run to your gun, unlock it, load it and then fire? Is that going to be the exception?

Solicitor General Clement: If that’s going to be the exception, it could clearly be inadequate….

During Walter Dellinger’s rebuttal argument for the District, Chief Justice Roberts provoked laughter from his colleagues by questioning the idea of unlocking a gun when a home invasion is in progress: “So then you turn on the lamp, you pick up your reading glasses…”

With the current Court, there would probably not be a constitutional problem with a locking law (similar to that in many states) which applied to homes where children were present, and which did not apply when the gun was under the person’s direct control (e.g., when the owner was in bed, and the gun was on top of a nightstand).

In contrast, D.C.’s new gun storage law forbids functional firearms except in response to an “immediate” threat. My prediction is that the new law will be declared void by the D.C. Circuit Court of Appeals, and that the Supreme Court will deny cert.

Notes

[1] James Madison, “Notes for Speech in Congress Supporting Amendments” (June 8, 1789), in 12 The Papers of James Madison 193-94 (Charles F. Hobson et. al. eds., 1979).

—

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. District of Columbia v. Heller opens the door to countless challenges to laws that regulate firearms. The case also powerfully shows that it is the ideology of the Justices and not their philosophy of constitutional interpretation that determines the outcome of cases. Conservatives generally favor gun rights and the five most conservative Justices followed their politics to this conclusion.

Mr. Levy raises exactly the right four questions about the decision, though I would come to different conclusions as to several of them.

First, what gun regulations will now be permissible? From a practical perspective, this is the key question. Justice Scalia’’s majority opinion does a tremendous disservice to lower court judges across the country because it fails to give them any guidance as to the level of scrutiny to be applied. There is only one sentence concerning the level of scrutiny, where Justice Scalia says that under any standard of review the District of Columbia law would be invalid. This is simply not true. As Justice Breyer shows in his dissent, the law surely would be upheld under a rational basis test or reasonableness test. The District of Columbia has a legitimate, –indeed a compelling, interest –in preventing gun violence. In light of studies showing the law has been successful, the law is at least reasonable. Even though those studies are disputed, they are certainly enough to meet rational basis review.

Using Justice Scalia’’s methodology, there is a strong argument that it should be a reasonableness test. As Professor Adam Winkler explained in a thorough article in the Michigan Law Review, 42 states have provisions in their state constitutions protecting an individual’’s right to have guns. In every one of them, regulations of firearms are allowed so long as they are reasonable.

But Justice Scalia’’s opinion must be understood as using some undefined form of heightened scrutiny. His failure to specify the standard of review is an open invitation to challenge every gun law. The outcome of this litigation often will turn on the level of scrutiny applied.

Second, will the Second Amendment be incorporated? Mr. Levy, of course, is correct that this still needs to be resolved. But now that five Justices have found an individual right to have guns in the Second Amendment, I would think that incorporation will follow.

I don’’t agree, though, that this is likely to come under the privileges or immunities clause. There is only one Supreme Court case (that has not been overruled) that has used the privileges or immunities clause to strike down a law: Saenz v. Roe in 1999, which involved the right to travel. There is no need for the Court to use the privileges or immunities clause to apply the Second Amendment to the states. It can find the Second Amendment to be incorporated in the due process clause, just as it has done with the other provisions of the Bill of Rights.

Third, did a purportedly conservative Supreme Court engage in judicial activism? Mr. Levy is right in explaining the need to get past the rhetoric of judicial activism and restraint. Both liberals and conservatives, at times, want to overturn the decisions of popularly elected legislatures; the disagreement is over when to do so, and simplistic rhetoric provides no answers. But I think he is wrong in his statement that “if “activism” means rendering legal judgments based on the public policy preferences of judge’s, then it should be roundly condemned.”

There is often no way for Justices to decide constitutional cases without using their own views and ideology as a basis. Strong arguments can be made for either view of the Second Amendment. Not surprisingly, the conclusions of the Justices reflect their ideology. Justices cannot decide what is a compelling, or an important, or a legitimate government interest except by making value choices.

District of Columbia v. Heller profoundly illustrates how constitutional decisionmaking will often inevitably be a product of the Justices’’ views. Conservatives long have favored gun rights and Justice Scalia took this position, even though it required him to abandon the conclusions that should have followed from his traditional methods of constitutional interpretation. The case thus powerfully demonstrates that Justice 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 support of gun rights all come from a conservative political agenda, not a method of constitutional interpretation. Unless one believes that the framers’’ intent and the contemporary Republican platform are identical, it is clear that Justice Scalia’’s constitutional decisions are a product of his policy preferences.

In fact, had Justice Scalia been true to his own interpretive philosophy, rather than his conservative politics, he would have had to come to the opposite conclusion and find that the Second Amendment protects a right to possess firearms only for purposes of service in the militia. First, Justice Scalia repeatedly has emphasized the importance of focusing on the text in interpreting legal documents. Justice 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. Justice 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.

Justice 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, Justice Scalia has said that it is important to look to its original meaning at the time the provision was adopted. James Madison drafted the Second Amendment, as he did 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.

Third, Justice 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, the Supreme Court expressly declared that the Second Amendment was limited to safeguarding possession of firearms for militia service. The Court upheld a federal law prohibiting possession of 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.

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 the conservative rhetoric about judicial restraint is a guise that is used to oppose rights they don’’t like. When it serves their political agenda, conservatives, such as Justice Scalia, are very much the activists.

Fourth, what happens next on the political front? I don’’t believe that the Second Amendment will matter much in the 2008 presidential election. With the economy in deep trouble in so many different ways — recession, foreclosures, escalating prices for food and fuel — gun rights just aren’’t going to matter much to the swing voters who will decide this election.

—

Erwin Chemerinsky is Dean and Distinguished Professor of Law at the University of California, Irvine School of Law.

Because the caption for our online exchange is After Heller: The New American Debate about Guns, I will resist the temptation to join Dennis Henigan in revisiting the old American debate, pre-Heller, on the question whether the right to keep and bear arms can be exercised only in the context of militia service. Anyone interested in the old debate can review the excellent briefs by both parties, not to mention 67 friend-of-the-court briefs — all of which are posted at www.dcguncase.com, which has developed into a leading repository of scholarship on the Second Amendment. Most important, however, the old debate is over because the Supreme Court has said it’s over. After taking seven decades to state unequivocally that Second Amendment rights are personal and private, the Court is unlikely to rehash that question any time soon. Unless and until the Court says otherwise, the rest of us are bound by Heller. As Justice Robert Jackson famously described his colleagues on the Court: “We are not final because we are infallible, but we are infallible only because we are final.”

On other matters, Henigan will get little mileage from his accusation that Justice Scalia engaged in “results-oriented jurisprudence, based on subjective value judgments.” For proof of that proposition, Henigan offers a critique of Heller by conservative law professor Doug Kmiec, who writes that Scalia ignored “constitutional text, history, and precedent.” Yet for every apostate on the right — is there any other, besides Kmiec? — there are multiple apostates on the left. Laurence Tribe, Akhil Amar, Alan Dershowitz, and Sanford Levinson, among others, all conclude that militia service was a sufficient but not necessary condition to the exercise of Second Amendment rights. The weight of scholarly opinion — across the ideological spectrum — is decidedly with Scalia.

If the test of principled jurisprudence is whether a judge’s ideological opponents have examined the same documents and reached the same conclusions, then Scalia passes that test hands down. And if the test for “judicial activism” is whether a judge’s ideological allies have examined the same documents and reached different conclusions, then Justice Stevens and his co-dissenters in Heller deserve that pejorative label. Numerous pro-gun-control scholars endorse an individualist interpretation of the Second Amendment, as expressed in Scalia’s majority opinion. Few if any anti-gun-control scholars endorse the collectivist views expressed in Stephens’s dissent. While both the majority opinion and the dissent are purportedly based on an originalist analysis of the Constitution, only the dissent exemplifies judicial activism in service of a public policy agenda. Stephens, not Scalia, is the justice unable to claim solid backing, even from his fellow liberals in the academy.

Henigan also asserts, “there are not five votes on the Supreme Court for applying a ‘strict scrutiny’ standard” of judicial review. He characterizes that as “an important setback for Heller.” Actually, neither Henigan nor I have inside knowledge that one or more of the five justices in the majority resisted strict scrutiny. Instead, we know only that the issue did not have to be resolved because D.C.’s ban was unconstitutional “under any of the standards of scrutiny the Court has applied to enumerated constitutional rights.” At some point, the Court may settle on a specific standard. If so, the standard will not be “rational basis,” as favored by the D.C. government, Professor Chemerinsky, and Henigan’s associates at the Brady Center. Nor will the standard be Justice Breyer’s “interest-balancing” test, which is presumably what the legislature applied when passing the law. Far from being a “setback” for Heller, the Court’s categorical rejection of those deferential standards is a significant victory.

In fact, Scalia’s citation in footnote 27 to United States v. Carolene Products is illuminating. Carolene was the 1938 case that effectively bifurcated our rights: The Court now rigorously protects some rights, such as those codified in the Bill of Rights, while rubber-stamping the regulation of second-tier rights, such as those related to contract, property, and commerce. By positioning the right to keep and bear arms squarely within the camp of specific, enumerated rights, and linking the Second Amendment to “the freedom of speech, the guarantee against double jeopardy, [and] the right to counsel,” Scalia sent an unmistakable signal that gun control regulations will be rigorously reviewed — perhaps even strictly scrutinized. That skeleton will have to be fleshed out in later litigation, but it’s fair to say that the gun controller’s standard-of-review glass is mostly empty, no matter how Henigan wants to spin it.

And speaking of spin, Henigan’s assessment of the “long-term political significance of Heller” is quite extraordinary. He calls it the “Heller paradox,” and it goes essentially like this: (1) the NRA and others in the “gun lobby” argued that each new gun regulation was a step down the slippery slope toward confiscation; (2) fear of the slippery slope by ordinary gun owners made gun control a “wedge” or “cultural” issue; (3) Heller, by erecting a constitutional barrier to a broad gun ban, has taken confiscation off the table; therefore (4) the NRA and its allies can no longer invoke the slippery slope argument; and (5) without that wedge issue, ordinary gun owners will be more receptive to sensible regulations. Add it all up: Heller will prove to be an important milestone favoring reasonable approaches such as those promoted by the Brady Center.

A few observations: First, the so-called Heller paradox depends on demonizing the gun lobby. That bogeyman may be rhetorically useful for Henigan, but it wasn’t the gun lobby that filed the lawsuit, picked the right time, provided the lawyers, identified the issues, selected the plaintiffs, chose the venue, decided on the legal strategy, wrote the briefs, argued in court, and won the case. The NRA can speak for itself, but our goals were not grounded on wedge issues or a cultural base. First and foremost, our interest was to ensure that the D.C. government complied with the text, purpose, structure, and history of the Second Amendment. For us, Heller was about the Constitution; guns merely provided context.

Second, if there are extreme elements within the gun lobby, trying to exploit the cultural aspects of gun control, that criticism is no less valid when applied to gun controllers themselves. According to Glenn Ivey, state’s attorney for Prince George’s County, a D.C. suburb: “Democrats and others were frequently unwilling to recognize any right to gun ownership and motivated their constituents, especially those in urban areas with high crime rates, by claiming that the NRA would flood our streets with weapons that would wreak havoc.” One tactic was to arouse urban residents with dire predictions of streets running with blood, awash with military-style weapons. Ivey continues: “To some, it seemed that no civilian should ever own a gun and that the government should ban gun ownership or impose as many restrictions as possible on it. It didn’t matter that an owner had never committed a crime or demonstrated mental or emotional instability.” That’s the way it was, and still is, in Washington, D.C.

Third, the slippery slope argument was justified, not illusory. Consider this widely quoted proclamation from Pete Shields, founding chair of the Brady Center: “The first problem is to slow down the number of handguns being produced and sold… . The second problem is to get handguns registered. The final problem is to make possession … totally illegal.” Sounds like confiscation to me. If confiscation is now off the table, and the slippery slope argument is no longer valid, that’s good riddance on both counts.

Fourth, if Henigan is correct in predicting that sensible regulations will be the by-product of Heller, I for one applaud that development. But sensible is not what we have in New York or Chicago or San Francisco or many other major cities. And sensible is not what the Brady Center has supported — arguing in its amicus brief that legislatures like the D.C. city council should have virtual carte blanche, unimpeded by judicial review, to ban all functional firearms. Thankfully, Heller has taken a major step to restore sensibility in Washington, D.C. Soon, with incorporation, Heller will have nationwide implications. That’s a big win for common sense. More important, it’s a big win for the Constitution.

I look forward to responding to Bob Levy in a subsequent posting. For now, I’ll address David Kopel’s claim that the knockout blow against the “militia purpose” view of the Second Amendment is the appearance of the article “the,” as in, “the right of the people to keep and bear Arms.”

Instead of responding to the evidence, presented in my essay, of Justice Scalia’s manipulative and inconsistent textualism, Kopel claims the “fight over original meaning has to come to an end” over the use, in the Second Amendment, of the article “the,” instead of “a” in the phrase “the right of the people to keep and bear Arms.” The use of “the,” according to Kopel, establishes that the right was preexisting and, since no militia-related right could be preexisting, the right must be to arms for individual self-defense. In effect, he is arguing that the word “the” trumps the importance of the entire phrase “A well regulated Militia, being necessary to the security of a free State.”

James Lindgren, in a posting on the Volokh Conspiracy, has helpfully pointed out that Kopel’s essay is unfaithful to his own argument, since he uses “a” to refer to what he believes to be a preexisting right. Kopel writes: “If the majority is right on this point, then the Stevens dissent is plainly wrong; the Second Amendment was intended to protect a personal right to arms for self-defense.” Aside from his own inconsistency, Kopel’s argument falls for two additional reasons.

First, state constitutional “right to bear arms” provisions predating, and post-dating, the Second Amendment, which Scalia (and presumably Kopel) believe to recognize an individual right apart from militia service, refer to “a right to bear arms.” For example, the Pennsylvania Declaration of Rights, which predated the Second Amendment, provided, “That the people have a right to bear arms for the defence of themselves and the state … .” The Indiana Constitution, adopted in 1816, also used the phrase “a right to bear arms” in the same context. I assume that Kopel would assert that these provisions guaranteed preexisting rights as well. If so, they demonstrate that nothing whatever turns on the use of the article “the” in the Second Amendment. Other examples can be found in the majority opinion, at footnote 8. They show that the Framers of various state “right to bear arms” provisions were quite indifferent as between “the right” and “a right.”

Second, Kopel’s assumption that there was no militia-related right preexisting the Second Amendment is demonstrably wrong. Consider the Massachusetts Constitution of 1780, quoted in my essay, but ignored by Kopel: “The people have a right to keep and bear arms for the common defence … .” Or the North Carolina Declaration of Rights of 1776: “That the people have a right to bear arms, for the defence of the State … .” I suppose Kopel could respond by claiming that these provisions, in defiance of their text, really concerned “defense of hearth and home,” but then they would stand as simply additional examples showing that the distinction between “the” and “a” in the Second Amendment means nothing.

It is hardly surprising that the majority opinion in Heller wisely avoided making Kopel’s “argument about articles.”

Dennis Henigan’s theory that Heller paves the way for new gun controls, by eliminating fears of the slippery slope, might be possible in the long run, but is probably not correct in the short run.

First of all, Heller was a 5-4 decision. Even if a Supreme Court a few years from now did not formally over-rule Heller, the Court could constrict Heller so tightly that it could become the last case which even meaningfully applied the Second Amendment. A future Court could also greatly reduce Heller’s scope by refusing to make it enforceable against state and local governments. There is every reason to believe that an Obama Court, at the urging of an Obama DOJ, would do so. In 1996 Obama endorsed handgun prohibition; in 2007, his campaign said that Obama supported the D.C. handgun ban. Obama has proposed outlawing all self-loading guns, banning all gun stores within five miles of a school or park (i.e., almost everywhere except roadless wilderness), and national legislation to override the handgun licensing laws of the 48 states which allow citizens to carry concealed handguns for lawful protection. Post-Heller, he claims to be against the D.C. handgun ban, and says he has always supported the Second Amendment individual right. Assuming that his claim about the Second Amendment is sincere, his version of the Second Amendment does not stand in the way of banning most guns.

Second, nothing in Heller stops the United Nations’ current global campaign against firearms ownership. The international gun prohibition lobby IANSA (International Action Network on Small Arms) is the “the organization officially designated by the UN Department of Disarmament Affairs (DDA) to coordinate civil society involvement to the UN small arms process.” The UN’s official representative of civil society favors handgun prohibition, prohibition of any rifle that can shoot 100 meters (e.g., almost all of them), prohibiting gun ownership for self-defense, and drastic reductions in levels of gun ownership. IANSA and the UN are currently working on an Arms Trade Treaty to eliminate gun sales to countries which violate human rights — which by the UN and IANSA definition means the United States; the UN and IANSA have already declared that laws like those in the U.S., which allow a woman to shoot a rapist, are a violation of the human rights of the rapist. The Brady Campaign, incidentally, is a member organization of IANSA.

We know that there are often four Justices — and sometimes five — who will use unratified treaties (like CEDAW, the Convention on the Elimination of all forms of Discrimination Against Women), or treaties which are not even applicable to the United States (like the African Convention on the Rights of the Child), as guidance in interpreting the U.S. Constitution. After two terms of President Obama, there could be several more such Justices.

As Henigan points out, Douglas Kmiec, who would likely be one of President Obama’s top Supreme Court advisors, has bitterly criticized Justice Scalia’s opinion in Heller. Kmiec chastises the Catholic Scalia for disregarding a 1978 statement [see p. 26 of the linked article] by the United States Conference of Catholic Bishops in favor of a handgun ban.

Did the June decision in Heller reduce the immediate risk of the slippery slope? Yes. Will that protection survive an Obama presidency in which the U.S. delegation at the United Nations (as in the Clinton years) enthusiastically supports the global prohibition campaign, and in which a President Obama, advised by Douglas Kmiec, appoints Justices who believe in the Obama/Kmiec vision of the Second Amendment — and in using international “norms” to constrict American rights? Constitutional rights advocates who think that the slippery slope problem has been resolved once and for all would be naïve.

The District of Columbia Court of Appeals said that the word “the” in “the right to keep and bear arms” shows that the Second Amendment protected a pre-existing right. All nine Justices agreed. The majority opinion makes exactly this point. (“The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” 128 S.Ct at 2797-98.) The Stevens dissent agrees. (“And the Court’s emphatic reliance on the claim ‘that the Second Amendment … codified a pre-existing right,’ ante, at 19, is of course beside the point because the right to keep and bear arms for service in a state militia was also a pre-existing right.” Id. at 2831.) All nine Justices also agree that there was a pre-existing common law right to personal gun ownership. The dispute between the majority and the dissent is whether there was also a pre-existing militia right, which could have been the antecedent for “the” right to keep and bear arms.

Is is possible to use the word “a” to refer to a pre-existing right? Yes, but such a use does not, in itself, show that the writer considers the right to be pre-existing. So when the writers of the 1816 Indiana Constitution used the phrase “a right to keep and bear arms,” or when I use the same phrase, the reader cannot tell from that phrase and that phrase alone that right is pre-existing. The Indiana drafters very likely did consider the right to be pre-existing, but to prove that point, you have to look at sources beyond the actual constitutional text.

Henigan cites to two state constitutions which he says show that there was a pre-existing militia right: First, the 1776 North Carolina Declaration of Rights “That the people have a right to bear arms, for the defence of the State…”, and the 1780 Massachusetts Constitution: “The people have a right to keep and bear arms for the common defence…”

To state the obvious, both of these provisions refer to “a” right to arms. You can’t tell from the text alone whether these provisions refer to a pre-existing right.

Dennis is right that I do see these provisions as including gun ownership for “defense of hearth and home.” See, e.g., State v. Newsom, 27 N.C. (5 Ired.) 250, 251 (1844)(provision protects right to arms for personal defense, but does not protect gun ownership by free blacks, who were supposedly not part of the social compact). But whatever the scope of the Massachusetts and North Carolina provisions protecting “a right” to arms, the text of those provisions does not prove that the right is pre-existing. It might be, but you can’t prove it was pre-existing just by looking at the text.

So in short, we have a wealth of common law and English sources showing that there is a pre-existing natural right to have arms for personal defense. We have zero sources from before 1789 showing a pre-existing right to be in the militia, or to have arms only for use in the militia. If there were such sources, Justice Stevens could have cited one in support of his bare assertion about a pre-existent militia right.

Because all nine Justices agree that the Second Amendment’s particular language points to a pre-existing right, the failure of Justice Stevens, and his supporters, to point to a source proving a pre-existing militia-only right is a fatal flaw in his theory of the Second Amendment as a militia-only right.

Bob Levy is uninterested in the “old debate” about the meaning of the Second Amendment because Heller decided the issue, while David Kopel thinks Heller hangs on a fragile 5-4 thread that could be severed by the Obama Administration conspiring with the United Nations to use unratified treaties to undermine Second Amendment rights. I sense some tension between the two perspectives.

Levy doesn’t seem to contest the essence of the “Heller Paradox” as I described it in my opening essay. The Paradox does not, as he suggests, depend on “demonizing the gun lobby,” though to do so requires only a recitation of its extremist positions, like its recent campaigns to deprive corporations of their right to keep guns off company property and to force colleges to allow guns on campus. My point has to do with the impact of Heller on the NRA’s longtime efforts to use the fear of gun confiscation to block reasonable gun laws in the future. A core gun lobby argument has been that regulatory proposals like background checks, licensing, registration and others should be defeated because they are but steps down a slippery slope to the destruction of civilian gun ownership. The slippery slope argument loses much of its force if there is now a Constitutional barrier to a general gun ban. Over the long term, this could be bad for the NRA and good for gun control advocates.

Indeed, this likely effect may explain why the NRA did not lead the legal effort against the D.C. law. Were it not for Bob Levy, there is no reason to believe a constitutional challenge to D.C.’s law would have been filed. Levy’s suit embarrassed the NRA into filing its own tag-along action, which was quickly dismissed for lack of standing. The NRA clearly preferred to press Congress to repeal the D.C. handgun ban, perhaps because it foresaw the unintended consequences of a Second Amendment victory. Any ruling that could diminish the NRA’s core strategy of keeping gun owners in a perpetual state of fear and anxiety about gun confiscation could be quite damaging to the organization’s interests.

A few days after the Heller decision, Chuck Michel, a West Coast lawyer who has long represented the NRA and other pro-gun interests, was involved in a panel discussion with Brady Campaign President Paul Helmke on public radio in Los Angeles. When he was asked about Heller’s effect on licensing and registration proposals, Michel argued that the problem with licensing and registration was that they “led to confiscation” and that there are “a lot of people in the gun control movement who are really gun … banners” who are “in favor of civilian disarmament.” As to Heller, he observed “[t]hese folks are never going to get their way now as a result of this [Heller] opinion, so I think licensing and registration is …going to be… tougher to criticize.”

Moments later, Michel realized the implications of what he had said, and he remembered the NRA talking points. “Well, let me just first clarify,” he said, “so I don’t get overly criticized by the members of the NRA that may be listening, you can’t license a civil right.” He then began to dissemble about different kinds of licensing that may be constitutional while others are not. But the damage had been done. Michel had committed the classic political “gaffe,” as famously defined by columnist Michael Kinsley. He had told the truth by accident.

I noted that Levy’s statement that “the slippery slope argument was justified,” uses the past tense. He resorts to the old NRA warhorse of using Pete Shields’ quote from thirty-two years ago in an interview he gave before he took the leadership of the Brady Campaign’s predecessor organization, expressing a viewpoint that has never been the policy of the organization. (Levy points to Brady’s amicus brief in the Heller case as recent evidence that the group favors a handgun ban, but our brief is entirely consistent with our view that legislators should not be constitutionally barred from enacting the gun control laws they think necessary to protect their constituents, even laws Brady does not favor as a policy matter.) The obsessive search for evidence that the Brady group’s real agenda is to ban all guns was always irrelevant (as well as inherently futile), but it certainly seems even more irrelevant after Heller. If a general gun ban is unconstitutional, then it matters even less what some gun controllers “really want,” because even if they want it, they can’t achieve it.

That is not to say that the gun lobby won’t continue to use fear tactics to rally its core supporters. Virtually all of Kopel’s last posting in this exchange is devoted to stoking the flames of fear. If Obama doesn’t get your guns, then the UN will. This is the kind of talk that will continue to be a staple of NRA propaganda in the post-Heller era. It may take some time, but Heller is likely to gradually reduce the ranks of gun owners who will take such appeals seriously. This should refocus the gun control debate on the pros and cons of specific policy proposals to reduce access to guns by dangerous people. This reframing of the issue is what the NRA desperately wants to avoid.

Levy thinks the Heller majority sent “an unmistakable signal that gun control regulations will be rigorously reviewed.” There is no such signal in Justice Scalia’s opinion. He could have written — as some may have expected — that finding gun ownership a personal right creates a new presumption that gun control regulations are unconstitutional, shifting the burden to the government to demonstrate their adherence to constitutional standards. The Heller majority, instead, provides a catalogue of gun regulations that clearly affect the right (e.g. “conditions and qualifications” on the sale of firearms), yet finds them “presumptively lawful.” The majority opinion, in commenting on the plethora of previous rulings by courts upholding gun laws, makes this notable statement: “In any event, it should not be thought that the cases decided by these judges would necessarily have come out differently under a proper interpretation of the right.”

There appear to be some justices in the majority who understand that, even if gun possession for self-defense in the home is a personal right, it is distinguishable in kind from other rights guaranteed by the Constitution. A constitutional right to possess a lethal product has immediate and direct implications for the health and safety of others in the community that distinguish it from, for instance, the First Amendment right to express oneself about such lethal products (or other topics).

Based on this obvious distinction alone, there is a strong argument for greater judicial deference to legislative judgments affecting the right to keep and bear arms, than to such judgments affecting other rights. This is no doubt why, as demonstrated by Professor Adam Winkler of UCLA Law School, state courts, in applying broadly worded state “right to bear arms” provisions, have universally rejected strict scrutiny or any heightened level of review in favor of a highly deferential “reasonableness” test that has been met by virtually every gun control law challenged in the state courts.

Before the Heller ruling was issued, there was considerable reason to worry that a new individual right to be armed for non-militia purposes would be a potent weapon against gun control laws across-the-board. To believe that Heller created such a weapon now appears largely wishful thinking by gun control opponents. From the viewpoint of the gun control community, although Heller certainly will create greater constitutional uncertainty about gun control laws than existed before, the legal risks are likely to be outweighed in the long term by the political benefits of reducing the power of the slippery slope argument.

Dennis Henigan’s criticism of Bob Levy leaves a little to be desired in terms of accuracy. Levy had quoted Nelson “Pete” Shields’s explanation of his plan for gradual handgun prohibition. Here’s the full quote:

“The first problem is to slow down the number of handguns being produced and sold in this country. The second problem is to get handguns registered. The final problem is to make possession of all handguns and all handgun ammunition–except for the military, police, licensed security guards, licensed sporting clubs, and licensed gun collectors–totally illegal.” (Richard Harris, “A Reporter at Large: Handguns,” New Yorker, July 26, 1976, p. 58.)

Henigan says that Levy “resorts to the old NRA warhorse of using Pete Shields’s quote from thirty-two years ago in an interview he gave before he took the leadership of the Brady Campaign’s predecessor organization, expressing a viewpoint that has never been the policy of the organization.”

According to the New Yorker’s summary of the article, “Writer talks to the N.C.C.H.’s [National Council to Control Handguns] present director, Nelson T. Shields III.” (emphasis added.) According to the Brady Campaign’s current website, Shields began working for the NCCH in 1975. Whether or not he was the director, he was clearly expressing the NCCH’s position.

In the June 1, 1987, Washington Monthly, Josh Sugarmann explained: “Founded in 1974 as the National Council to Control Handguns, HCI originally called a ban on private handgun possession the ‘most effective’ solution to reducing violent crime rapidly and was at one time a member of NCBH [National Coalition to Ban Handguns].” Sugarmann went on to castigate Handgun Control, Inc. (the group’s second name, adopted to replace “National Council to Control Handguns” and preceding the current name, “Brady Campaign to Prevent Gun Violence”) for abandoning handgun prohibition because of polling data.

So Henigan is right to say that his organization does not currently propose handgun prohibition, and has not done so for a long time. But he is wrong to say that his group never did.

In any case, Levy’s point about the current efforts of handgun prohibitionists is supportable by reference to overt handgun ban groups such as Josh Sugarmann’s Violence Policy Center, the Coalition to Stop Gun Violence (formerly named the National Coalition to Ban Handguns), and the International Action Network on Small Arms (of which the Brady Campaign is a current member).

Henigan is also correct that Bob Levy and I disagree about the certainty of Heller’s long-term staying power. I hope Bob is right, but two terms of President Obama could replace two or more of the Justices in Heller’s 5-4 majority. Not that Heller would necessarily be overruled — just construed so narrowly (and not incorporated against the states) as to pose no limit to state and local gun bans, and as to allow even federal bans if written a little more carefully than the D.C. ban.

Dennis’s claim about Chuck Michel’s alleged “gaffe” is overstated. As Michel stated, accurately, many of the current advocates of licensing and registration see these measures as steps towards confiscation — as did Pete Shields in 1976. The Brady Campaign itself supported a New York City law which used old registration lists to confiscate rifles and shotguns which had been dubbed “assault weapons” and retroactively criminalized.

Michel also said that Heller (presuming it remains strong, and is incorporated) would reduce fears that licensing and registration would lead to confiscation. He also said that some licensing systems might still be unconstitutional. (A good example would be the one in New York City, where the police often ignore the statutory requirement to make decisions on handgun licenses within six months of the application.) And he said that he was personally against licensing because “you can’t license a civil right.”

You may agree or disagree with Michel’s viewpoint, but he honestly said what he thinks, and it’s somewhat mean-spirited to claim that Michel was dissembling, or that expressing his own, internally consistent viewpoint, is a “gaffe.”

In Henigan’s view, “demonizing the gun lobby” merely requires reciting its “extremist positions.” He points to NRA support for bills to prevent corporations from firing employees who have a legal hunting rifle or a licensed handgun in the trunk of their car when it is parked in the company parking lot. I guess the difference between extremism and “sensible” gun laws is in the eye of the beholder, since some people might consider it “extremist” for the Brady Campaign to be a supporting member of an international lobby (IANSA) that wants a global ban on gun ownership for self-defense, a ban on all handguns, a ban on any rifle that can fire 100 meters (i.e., virtually all of them), claims there is no right to self-defense, that it’s an international law violation for governments to allow women to shoot rapists, and wants an international treaty that would have outlawed supplying arms to the French Resistance, the Warsaw ghetto fighters, or the American Revolutionaries.

In a previous post, Dennis criticized me for not “responding to the evidence, presented in my essay, of Justice Scalia’s manipulative and inconsistent textualism.” OK.

Much of the post does not merit a response because it does not advance the discussion, as it amounts to a précis of the arguments made by Justice Stevens in his dissent, which are addressed by Justice Scalia. Read the Scalia and Stevens opinions for yourself, and decide who has the better argument.

Both Scalia and Stevens agree that there are times when the context of “bear arms” shows that it means “carry guns while serving in the militia,” and other times when the context shows a broader meaning, as in “carrying guns while hunting.” Stevens and Henigan favor an interpretive rule by which “bear arms” must mean “militia-only” unless there is a specific invocation of non-militia use. As I said previously, both sides make a respectable argument for their position.

Henigan claims,

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.

The problem with Dennis’s theory is that it is contrary to how Massachusetts courts read the language.

In Commonwealth v. Blanding (1825) Massachusetts’s Chief Justice Parker explained,

The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.

The explanation only makes sense if individuals have a general right to firearms for all purposes, rather than the right to have firearms solely for militia service.

In the 1896 case of Commonwealth v. Murphy, the Massachusetts Supreme Judicial Court upheld a ban on unlicensed mass armed parades in public; the defendant claimed that the ban violated the state’s right to arms.

The court disagreed, and explained that “The protection of a similar constitutional provision has often been sought by persons charged with carrying concealed weapons, and it has been almost universally held that the legislature may regulate and limit the mode of carrying arms.” The Court then supplied a string cite to cases from Tennessee, Texas, Alabama, Arkansas, Indiana, and Missouri (plus one contrary case from Kentucky). The “similar constitutional provision” in every one of these cases was a state right to arms clause which indisputably protected the right of everyone (not just militiamen) to have firearms in their home for self-defense and other purposes.

In 1976, the Massachusetts court rejected a criminal’s challenge to the state law restricting the possession of sawed-off shotguns. The court declared that the state constitutional arms right was only for militiamen, and that it no longer existed for any practical purpose, since the National Guard now had its own guns. The decision did acknowledge the earlier view might have been different:

that there is nothing to suggest that, even in early times, due regulation of possession or carrying of firearms, short of some sweeping prohibition, would have been thought to be an improper curtailment of individual liberty or to undercut the militia system.

Justice Breyer, too, recognized that the original view of the Massachusetts Constitution appears to have been a general (not militia-only) right to arms:

Samuel Adams, who lived in Boston, advocated a constitutional amend­ment that would have precluded the Constitution from ever being “construed” to “prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” 6 Documentary History of the Ratification of the Constitution 1453 (J. Kaminski & G. Saladino eds. 2000). Samuel Adams doubtless knew that the Massachusetts Constitution contained somewhat similar protection.

Language nearly identical to the Massachusetts provision (“common defence,” with no explicit mention of any other purpose) appears in the state constitutions of Arkansas, Florida, South Carolina, and Tennessee — and has been interpreted in all those states to include the right of individuals who are not in the militia to have guns in their home for personal defense. (A contrary 1986 decision Maine was quickly overturned by the voters with a 1987 constitutional amendment.)

One justification for recognizing individual home protection as guaranteed by the “common defense” language is that families which protect themselves by thwarting or deterring violent criminals are contributing to the common defense of society.

Henigan may argue that the 1976 Massachusetts court and the 1986 Maine court got it right, and all the other courts were wrong. But the very fact that so many courts — and especially the courts closest in time to ratification of the state constitutions — disagree with Henigan’s interpretation shows the error of his claim that the Massachusetts right, and therefore the Second Amendment, have a clear “context” which proves that they were never intended to protect the right to possess arms for home defense.

I fear that Dennis Henigan has somehow mixed up his blogs.  This blog — Cato Unbound — is an exchange between Henigan, Kopel, Chemerinsky, and Levy.  The blog on which Henigan has most recently posted is an exchange between Henigan and the NRA — somewhat complicated by the fact that the NRA is not a participant.  Fully one-half of Henigan’s latest post is a critique of the NRA, its positions, and its tactics — everything from its advocacy of slippery slope arguments to its fight against corporations that want to keep guns off their private property.  In a proper forum, I’m sure the NRA would counter Henigan’s critique.  But this is not that forum; and I am not the NRA’s representative.  Indeed, as Henigan well knows, I join him in opposing NRA claims that corporations are bound by the Second Amendment to allow guns in their parking lots. 

That said, I can’t resist a brief comment on “the NRA’s core strategy,” according to Henigan, “of keeping gun owners in a perpetual state of fear and anxiety about gun confiscation.”  If true, that would surely be a bizarre and ineffective strategy.  After all, 44 states secure an individual right to keep and bear arms under their own statutes or constitutional provisions.  Forty-eight states allow concealed carry with varying degrees of administrative discretion.  Confiscation isn’t even on the radar screen, except perhaps in a small handful of municipalities and counties legislating under delegated state power.  Whatever plans Pete Shields may have had for confiscation in his early days at the Brady Center, those plans lost all momentum with the enactment of permissive state laws, long before the Heller decision.  Gun control is a losing issue for would-be confiscators.  That’s why even liberals, like Obama, find it necessary to embrace — or perhaps pretend to embrace — an individualist view of the Second Amendment.     

Dennis Henigan is a smart lawyer who knows a great deal about gun laws and the Second Amendment. But one subject on which he is not an expert is the internal deliberations of the National Rifle Association. Reading Henigan to learn the secret motives of the NRA is akin to reading Richard Dawkins to learn insider secrets of the Vatican.

In an impressive display of spin, Henigan argues that the NRA did not want the Supreme Court to rule in favor of an individual right to own handguns for self-defense, because the NRA was afraid that such a ruling would undermine its efforts to frighten people about gun confiscation:

Indeed, this likely effect may explain why the NRA did not lead the legal effort against the D.C. law. Were it not for Bob Levy, there is no reason to believe a constitutional challenge to D.C.’s law would have been filed. Levy’s suit embarrassed the NRA into filing its own tag-along action, which was quickly dismissed for lack of standing. The NRA clearly preferred to press Congress to repeal the D.C. handgun ban, perhaps because it foresaw the unintended consequences of a Second Amendment victory. Any ruling that could diminish the NRA’s core strategy of keeping gun owners in a perpetual state of fear and anxiety about gun confiscation could be quite damaging to the organization’s interests.

A much simpler theory is what the NRA said in public, and was widely reported by the media: It felt confident about winning a case before the D.C. Circuit Court of Appeals, but unsure about what the Supreme Court would do. (Remember, the case was filed before Samuel Alito replaced Sandra Day O’Connor.)

And if there was going to be a Supreme Court case, the NRA obviously preferred the case be led by its longtime favorite lawyer Stephen Halbrook (who has a 4-0 record in the Supreme Court), rather than by the Levy-Gura-Neilly team, who had never handled a gun case before. (As it turned out, Gura and the others performed magnificently, with a superb brief, and a fine performance at oral argument.)

The NRA’s competitive case, by the way, was Seegars v. Ashcroft, filed by Halbrook on April 4, 2003. According to Henigan, the case “was quickly dismissed.” District Judge Reggie Walton ruled in favor of the defendant’s motion to dismiss on January 14, 2004; eight months can accurately be called “quickly” in geological time.

And by the way, the NRA tried to get that case to the Supreme Court. The NRA filed a cert. petition challenging the decision on standing, and asking the Supreme Court to grant cert. in order to uphold the Second Amendment: “This Court should grant this petition to vindicate the rights of the Petitioners and the thousands of other D.C. residents who seek nothing more than the ability to exercise their constitutionally guaranteed individual right to keep and bear arms.” Seegars v. Ashcroft, 297 F. Supp. 2d 201 (D. D.C. 2004), rev’d. in part & aff’d in part, 396 F.3d 1248 (D.C. Cir. 2005), reh. denied, 413 F.3d 1 (D.C. Cir. 2005), cert. denied, 126 S.Ct. 1187 (2006).

The other hole in Henigan’s theory is that the NRA had previously tried to bring the Second Amendment to the Supreme Court — as Henigan himself explains in his own book. In 1986, Congress banned the possession of machine guns manufactured after May 19, 1986 (18 U.S. Code §922(o)). The NRA sued, and won the case in the federal District Court in the northern district of Georgia. The District Court said that machine gun ban might raise constitutional problems under the Second Amendment. So the District Court construed the statute to avoid the constitutional question.

The ban had an exception which allowed:

a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof;

The District Court construed the exception to mean that any machine gun sale or possession which complied with the federal tax and registration provisions of the 1934 National Firearms Act counted as “under the authority of, the United States.”

The government appealed the case to the 11^th Circuit, and argued that “under the authority, of the United States” meant that federal employees (or foreigners with a federal export license) could have machine guns, not that everyone could.

The 11^th Circuit opinion began by explaining that “On January 6, 1989, the district court ruled that the Act allowed private persons, who comply with the National Firearms Act’s application and registration requirements, to make and possess machine guns.” The 11^th Circuit adopted the government’s position (federal employees only). The Circuit Court declined to address the Second Amendment argument.

Henigan’s book omits the part of the story about the District Court decision. The book begins its description of the case with the 11^th Circuit, and then Henigan accurately describes the next stage of the litigation:

Mr. Farmer was represented by lawyers [led by Stephen Halbrook] for the National Rifle Association, who then filed a petition for certiorari to the U.S. Supreme Court in that case. Incredibly, that petition argued again that the guns entitled to the greatest constitutional protection under the Second Amendment are military-style guns because they are militia weapons.

[Dennis Henigan et al., Guns and the Constitution: The Myth of Second Amendment Protection for Firearms in America (Northampton, Mass.: Aletheia Press, 1995), discussing Farmer v. Higgins, 907 F.2d 1041 (11th Cir. 1990), cert. denied, 498 U.S. 1047 (1991).]

There were plenty of other cases where the NRA tried to get the Second Amendment before the Supreme Court. In 1981, the Chicago suburb of Morton Grove banned handguns. After the Seventh Circuit upheld the ban, cert. petitions were filed with the Supreme Court in three parallel cases. The NRA supported the cert. petitions for two of the litigants. Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863; Reichert v. Village of Morton Grove, 464 U.S. 863, and Stengl v. Village of Morton Grove, 464 U.S. 863 (1983).

The Morton Grove ban, incidentally, is being repealed, as the city government does not want to defend the ban post­-Heller. Of the five Chicago suburbs with handgun bans, only Oak Park’s remains. Presumably, Chicago and Oak Park will fight all the way to the Supreme Court to defend their increasingly isolated bans.

A 1990 Supreme Court case involved federal powers over the state militia — in particular, the sending of the Minnesota National Guard to Central America, contrary to the wishes of the state governor. Perpich v. U.S. Department of Defense, 496 U.S. 334 (1990). The NRA’s Firearms Civil Rights Legal Defense Fund filed an amicus brief in the case, which explained that the militia means the armed populace and the Second Amendment protects individual rights.

And in 2003, the NRA filed an amicus brief in support of a cert. petition (although, realistically, the chances of cert. being granted were close to nil) for Silveira v. Lockyer, a challenge to California’s “assault weapon” law. The amicus brief’s Table of Contents states:

REASONS FOR GRANTING THE WRIT

I. Petitioners Have Article III Standing To Challenge The Assault Weapons Control Act

II. The Second Amendment’s Guarantee Of An Individual Right To Keep And Bear Arms Applies To State Action

III. The Second Amendment Guarantees An Individual Liberty Both To “Keep” and to “Bear” Arms

You can (and lots of gun activists do) argue about the NRA’s litigation strategy. But the claim that the NRA tried to keep the Second Amendment out of the Supreme Court because the NRA was afraid of winning is not a claim that deserves to be taken seriously.

Cloaking himself and the Brady Center in the mantle of “reasonableness,” Dennis Henigan disclaims the statement of Brady co-founder Pete Shields and asserts that it “has never been” and is not now the policy of his organization to “make possession of all handguns … totally illegal.” Perhaps so. Perhaps, as Henigan says, Brady supports even laws, like the D.C. gun ban, that the organization “does not favor as a policy matter,” because “legislators should not be constitutionally barred from enacting the gun control laws they think necessary.”

If that’s the view of the Brady Center, I respectfully disagree. A principal purpose of our Constitution is to restrain the excesses of the political branches and secure key rights against temporal majorities. But let’s not quibble. Let’s accept Henigan’s statement that, from a policy perspective, Brady opposes the D.C. gun ban. Is it too much to ask for a citation to one corroborating article, one radio or TV appearance, one web posting, or one quoted statement by any responsible Brady official that says, in essence, “We think D.C. should repeal its gun ban, even though it is constitutional, because it is bad public policy”?

Now that D.C. officials, trying to circumvent the Heller decision, have proposed new rules that still ban all handguns except revolvers, still require all weapons in the home to be kept in a dysfunctional state, and still make D.C. residents endure a months-long process to register a weapon, can we count on the Brady Center, in a show of reasonableness, to publicly oppose those rules on policy grounds? Will the Brady Center support a temporary suspension for D.C. residents of the federal ban on interstate handgun sales because, otherwise, until D.C. licenses dealerships, residents cannot obtain a handgun either in or out of the city — a situation that is self-evidently unreasonable.

On a separate matter, Henigan writes that any view of Heller as “a potent weapon against gun control laws across-the-board … now appears largely wishful thinking by gun control opponents.” That statement — which might have been crafted by the most talented of the political spin-meisters — is part of Henigan’s attempt to recast Heller as a hidden defeat for gun rights advocates. Two comments to set the record straight: First, no responsible gun rights advocate imagined that Heller would be, or could be, a means of attacking gun control laws “across-the-board.” Heller challenged three provisions of the D.C. code — the most extreme provisions — and sought no relief beyond a declaration that those three provisions were unconstitutional. In that respect, the Supreme Court granted Heller 100% of the relief that he requested. Not bad for a hidden defeat.

Second, before Heller, federal appeals courts covering 47 out of 50 states had ruled that litigants have no redress under the Second Amendment if their right to keep and bear arms is violated by state law. Now, after Heller — and after incorporation, which is imminent — litigants in every state will have redress under the Second Amendment if their right to keep and bear arms is violated by state law. That means Chicago’s gun ban will fall; many of San Francisco’s laws will fall; parts of New York’s regulations will fall. If that’s a defeat for gun rights advocates, we’ll take it.

When it comes to the Second Amendment, Dennis Henigan believes in “greater judicial deference to legislative judgments.” Why? Because the right to keep and bear arms “has immediate and direct implications for the health and safety of others.” Hmm. What about publication of a manual for hit men, or a booklet on bomb-making, or the indoctrination of young Muslims in privately funded madrassas? Each of those is protected by the First Amendment, and yet each has far greater implications for public safety than the right of D.C. residents to keep a handgun in their home.

Citing UCLA law professor Adam Winkler, Henigan declares that “state courts … have universally rejected strict scrutiny or any heightened level of review in favor of a highly deferential ‘reasonableness’ test that has been met by virtually every gun control law challenged in the state courts.”

First, that statement is inaccurate. Through 2003, state courts voided laws infringing on the right to keep and bear firearms on at least 20 occasions. (See the amicus brief [pdf] filed in Heller by the American Legislative Exchange Council, note 2.) Quite a few of the overturned laws entailed carry restrictions, which are clearly less invasive than the prohibitions on mere possession that are at issue in places like D.C., Chicago, and San Francisco.

Second, there’s no inherent incompatibility between “reasonableness” and heightened scrutiny. Courts can rigorously review gun restrictions for reasonableness without being highly deferential to the legislature. Here’s how the Goldwater Institute [pdf] described the interaction: “As with the First Amendment’s free speech right, the Second Amendment’s personal right is subject to a range of reasonable restrictions even though strict scrutiny applies to the core of the protected conduct.” (Amicus brief in Heller, p. 14.) The brief goes on to recommend strict scrutiny, but “subject to well-understood historical exceptions and reasonable restrictions on time, place, and manner — just as is the case with other constitutionally enumerated rights.” (Ibid., pp. 14-15.)

Henigan conflates the prescription of a standard of review with the application of a test to determine if that standard has been met. He’s not alone in that confusion. Many others, myself included, find that tiered levels of scrutiny and multiple tests are mystifying and, even worse, often reflective of judges’ personal preference for some rights over others. On the other hand, as UCLA law professor Eugene Volokh has argued, different rights have different purposes and run up against different sets of government and private interests. The same verbal formulation might not yield a suitable standard for all rights. The key point, however, is this: Courts must be vigorously engaged in protecting us from legislative and executive impulses that violate constitutionally secured rights. And judges must have a proper respect for the document they are charged with enforcing — focused on expansive individual liberties and a tightly constrained government of limited and enumerated powers.

Let me be the first to welcome Dean Chemerinsky to the fray.  Perhaps he will draw some fire while I reload (so to speak).

Bob Levy thinks a gun lobby strategy of using the “slippery slope” argument to keep gun owners in a perpetual state of anxiety about gun confiscation would be “bizarre and ineffective,” while David Kopel (a frequent contributor to the NRA’s First Freedom magazine) does his bizarre best to reflect that strategy by now claiming that the Brady Campaign is a fellow-traveler with those who want “a global ban on gun ownership for self-defense.”  I agree with Bob’s characterization of the strategy, particularly after Heller, but as Kopel’s postings show, it is what it is.

Neither of these writers has yet provided a reason to doubt my thesis that Heller is a paradox.  By giving gun control opponents the Supreme Court interpretation of the Second Amendment they wanted, the ruling may have made it easier to pass reasonable gun restrictions.  The paradox for gun control advocates like me is that the likely favorable effects of Heller on the gun control debate result from a ruling that is constitutionally indefensible.  At the risk of stepping back into the “old debate,” I return to the Heller majority opinion and to the argument that since the right guaranteed by the Second Amendment was “preexisting,” it can’t exclusively relate to the militia.

The argument is wrong if there exist examples, predating the Second Amendment, expressing a right of the people to be armed that relate entirely to military affairs and not to private self-defense.  One such example is the Massachusetts Constitution of 1780, but Kopel, and the Heller majority claim that its “right to keep and bear arms” provision guaranteed a right to gun ownership for “defense of hearth and home.”  Let me quote the entire provision, Article 17 of the Massachusetts Declaration of Rights:

The people have a right to keep and to bear arms for the common defence.  And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

Of course, the entire context in which the people’s “right to keep and to bear arms” appears in this provision demonstrates that the right refers only to service in the militia.  That the Heller majority would claim that this provision concerns private self-defense is proof of my original point, i.e. that the Court reached its predetermined conclusion only by ripping key phrases out of context.

The Heller Court’s assertion (echoed by Kopel), that the Massachusetts courts read this provision as relating to private self-defense, is a transparent distortion of the case law.  The controlling precedent here is Commonwealth v. Davis, 343 N.E.2d 847 (1976), in which the Supreme Judicial Court predictably held that Article 17 (the text of which has never changed since 1789) is directed at “service in a broadly based, organized militia,” not “to guaranteeing individual ownership or possession of weapons.”  In the upside-down world of the pro-gun constitutional theorist, however, this holding, the most recent ruling of the highest court in the jurisdiction on the issue, is less controlling than rulings of a century before.  Thus, the Heller majority and Kopel cite cases from 1825 and 1896 which, it turns out, suggest only that the Article 17 right does not protect those who may abuse firearms and that the legislature has the police power to ban public drilling with guns as a private military organization.

Recall that Kopel’s original argument was that because the right to keep and bear arms was “preexisting” it could not be exclusively militia-related, because there was no such preexisting right.  The Massachusetts provision alone defeats Kopel’s argument.

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 19^th 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.

“Just when I thought I was out, they pull me back in.”  With due apologies to Al Pacino, that’s my reaction when Dennis Henigan and Erwin Chemerinsky persist in rehashing the question whether Second Amendment rights can be exercised only in the context of militia service — a question that has been laid to rest, probably for our lifetime, by the U.S. Supreme Court.

Reluctantly, therefore, I address a couple of Chemerinsky’s arguments.  First, he contends that the Court in Miller “expressly declared that the Second Amendment was limited to safeguarding possession of firearms for militia service.”  (Emphasis added.)  Untrue.  The McReynolds opinion, whatever its other infirmities, was crystal clear in focusing on the weapon, not the person.  Not a single mention was made of Miller’s militia status or service.  The firearm — a sawed off shotgun — was not self-evidently of a type that promoted a well-regulated militia.  But Miller’s use of the weapon — transporting it across state lines — was for private, not militia purposes.

Indeed, if the opinion had hinged on Miller’s militia status, the Court would never have inquired about the utility of a sawed-off shotgun.  McReynolds would have held that Mr. Miller — obviously not engaged in militia service — had no ground to claim Second Amendment protection.  Instead, McReynolds remanded the case for a new trial, presumably to include evidence about the military’s use of sawed-off shotguns.  If Miller could show that his weapon was protected, then his use of the weapon for both militia and non-militia purposes would have been protected as well.

Second, Chemerinsky claims that “both halves of the Second Amendment are ‘operative’ ” and that Justice Scalia treated the Amendment as if the militia clause didn’t exist.  Again, not true.  The militia clause certainly has meaning, as recognized by Scalia, but the clause is explanatory, not operative.

Imagine a modernized version of the ratification debates:  Federalists and anti-federalists express their strongly held views over radio, tv, and in Internet blogs.  Both groups understand that free speech is a natural right of citizens, passed down as part of our common law heritage.  The federalists, however, have concerns about blogs.  The potential for blog abuse is substantial, and the federalists want the new national government to impose meaningful restrictions.  But the anti-federalists resist, and their votes are key to ratifying the Constitution.

As part of a compromise, the federalists promise a Bill of Rights that will include a provision mollifying anti-federalist reservations about national government control over blogs.  The provision would be added to an amendment ensuring free speech.  Here’s the resultant language, as adopted:  “A well-managed blog, being necessary to sustain a free society, the right of the people to express their views on any subject shall not be infringed.”

Chemerinsky and Henigan would have us believe that free speech would thus have been constitutionally protected — but only when expressed on Internet blogs; not radio, tv, or other media.  The flaw in that interpretation can be traced to Chemerinsky’s insistence that the prefatory clause is “operative.”  It is not.  Instead, it sets out one reason, among others, for the existence of a right to free speech.  Analogously, the militia clause sets out one reason, among others, for the right to keep and bear arms.

In reality, the militia clause was a means to encourage ratification by the anti-federalists, who were fearful of both standing armies and an armed subset of the militia, which might have been equivalent to a standing army. By guaranteeing that all individuals, not just those in militia service, would have the right to keep and bear arms, the federalists assuaged that fear.

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.

Dennis Henigan begins his latest post by claiming that I endorse this non-sequitur: “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.” Not quite, Dennis. Yes, there are many such liberal professors. Yes, Scalia’s views are principled. But I do not presume that the second proposition necessarily follows from the first. The logical relationship goes like this: Because Henigan evidently believes that Tribe, Amar, Levinson, et al., are principled, and because they and Justice Scalia have reached the same conclusion about the militia clause, Henigan is incorrect in asserting that the only way for Scalia to reach that conclusion is to be unprincipled.

Next, in an attempt to reinforce his view that the militia clause is operative rather than explanatory, Henigan misstates Chief Justice Marshall’s admonition about surplusage. Marshall did not endorse a “no surplusage” principle, as Henigan contends. In Marbury v. Madison, Marshall observed, “It cannot be presumed that any clause in the constitution is intended to be without effect.” (Emphasis added.) Of course, I do not presume that the militia clause is without effect. In my prior post, I analyzed the purpose and history of the clause to show that it was designed to ameliorate anti-federalist concerns about a standing army. That is very far from being “without effect,” which means inconsequential. Indeed, the militia clause was instrumental in securing anti-federalist support for ratification.

A similar prefatory clause — also explanatory — attaches to the copyright power in Article I, section 8, of the Constitution. That power exists, in part, “To promote the Progress of Science and useful Arts.” Does Henigan imagine that the copyright power does not extend to books that condemn useful arts and expressly advocate retarding the progress of science? Why, then, would the right to keep and bear arms be restricted to militia service? If the militia clause were limiting, surely the copyright-purpose clause would be as well.

Switching to empirical arguments, Henigan maintains that more guns cause higher rates of suicide, crime, and accidents. Naturally, the studies he relies upon should have, but did not, restrict their databases to incidents involving legal guns; because it is simply bizarre to proclaim that violence involving already illegal weapons would have been reduced if only the guns had been more illegal.

Equally compelling, in 2004 when the National Academy of Sciences reviewed 253 journal articles, 99 books, and 43 government publications evaluating 80 gun-control measures, the researchers concluded that “existing research studies … do not credibly demonstrate a causal relationship between the ownership of firearms and the causes or prevention of criminal violence or suicide.” A year earlier, the Centers for Disease Control and Prevention reported on an independent evaluation of firearms and ammunition bans, restrictions on acquisition, waiting periods, registration, licensing, child access prevention laws, and zero-tolerance laws. CDC concluded there is “insufficient evidence to determine the effectiveness of any of the firearms laws or combinations of laws reviewed on violent outcomes.”

Still, insists Henigan, for every time a gun is used in the home for self-defense, there are multiple times when a gun in the home leads to accidents, crimes, or suicides. Even if true, the point is irrelevant — bordering on silly. The benefit of a gun in the home is not to shoot bad guys. That rarely happens. The real benefit is the deterrent effect on commission of crimes. Peer-reviewed studies indicate that guns are used defensively — almost always brandished, not fired — five times more often than they are involved in violent crimes. More important, Henigan totally ignores countless instances of violent acts not undertaken because the potential victims might be able to defend themselves with suitable firearms.

With this final posting, I’d like to revisit two issues that I raised in my initial essay: incorporation and judicial activism. Both issues have implications for future litigation — consistent with the caption for this blog, “After Heller: The New American Debate.”

I use as my takeoff point two comments by Erwin Chemerinsky, who has been conspicuous by his absence from this debate, even though he agreed to participate and knew in advance what was expected of participants. In his sole posting, Chemerinsky argues: “There is no need for the Court to use the privileges or immunities clause to apply the Second Amendment to the states. It can find the Second Amendment to be incorporated in the due process clause, just as it has done with the other provisions of the Bill of Rights.” That’s correct; and it may turn out to be an accurate forecast of how the Court’s Second Amendment incorporation jurisprudence will unfold. But it’s important to understand what’s at stake.

The privileges or immunities clause of the Fourteenth Amendment provides a textual foundation for incorporating those rights — both enumerated and unenumerated — deemed to be among the privileges or immunities of citizenship. Properly understood, that phrase encompasses so-called negative rights that can be exercised by free people without imposing positive obligations on others — such as the right to pursue happiness, start a business, and contract for one’s labor. Not included among the privileges or immunities of citizenship are positive rights or entitlements, such as welfare or a minimum wage, the enforcement of which affirmatively obligates non-consenting parties.

By contrast, the due process clause has been used to incorporate those provisions of the Bill of Rights deemed to be “fundamental to the American scheme of justice.” Perhaps most important among the omitted rights under the due process clause have been economic liberties — e.g., rights to property, to contract, and to engage in entrepreneurial activities shielded from arbitrary or excessive regulation by the states. Since the New Deal, regulations of those rights have been rubber-stamped by the courts. That could change if the vehicle for incorporation were the privileges or immunities clause. Obviously, this is not the forum to thrash out all the arguments and counter-arguments for due process vs. privileges or immunities. But that choice does matter; and the Court’s handling of Second Amendment incorporation might hearten those of us who believe that the bifurcation of our rights into fundamental and non-fundamental categories is incompatible with the text, structure, purpose, and history of the Constitution.

Finally, Chemerinsky asserts, “There is often no way for Justices to decide constitutional cases without using their own views and ideology as a basis.” I disagree. Justices whose decisions are anchored in the text of the Constitution have an objective basis for their views. To be sure, the text is not always clear, but it does provide a starting point, which can be supplemented by examination of constitutional structure, purpose, and history. On the other hand, those justices who subscribe to an anchorless “living Constitution” theory are disposed to use “their own views and ideology as a basis” for their decisions.

Justice Breyer described the living Constitution as one “designed to provide a framework for government across the centuries, a framework that is flexible enough to meet modern needs.” Our constitutional system, says Breyer, requires “structural flexibility sufficient to adapt substantive laws and institutions to rapidly changing social, economic and technological conditions.” But the Framers provided an amendment process for structural flexibility. If the Constitution needs to be updated, it should be accomplished by amendment, not by pretending that the written document doesn’t exist or doesn’t mean what it says. Indeed, what is the purpose of a written document if we act as though it’s just a piece of paper?

If government powers can be expanded with impunity, regardless of the constitutional text, then rights can be contracted with impunity. My Cato colleague Roger Pilon puts it this way: “A ‘living constitution’ that maximizes political discretion can be worse than no constitution at all. It preserves the facade of constitutional legitimacy while unleashing the political forces that a constitution is meant to restrain.” Indeed, one major reason for the broken judicial confirmation process is the Court’s gradual shift from reliance on the text to reliance on a living Constitution. When the text of our written Constitution is trumped by evolving societal needs, then the judicial function is just politics by another name. No wonder Congress and activist groups are so concerned about a nominee’s views on key public policy issues; those views could ultimately become law, notwithstanding explicit constitutional provisions to the contrary.