Is Heller the Conservative Roe?

Adam Liptak, the N.Y. Times' Supreme Court reporter, had an article in yesterday's paper about conservative criticism of District of Columbia v. Heller, the gun rights case from the Court's last term:

Two prominent federal appeals court judges say that Justice Antonin Scalia’s majority opinion in the case, District of Columbia v. Heller, is illegitimate, activist, poorly reasoned and fueled by politics rather than principle. The 5-to-4 decision in Heller struck down parts of a District of Columbia gun control law.

The judges used what in conservative legal circles are the ultimate fighting words: They said the gun ruling was a right-wing version of Roe v. Wade, the 1973 decision that identified a constitutional right to abortion. Justice Scalia has said that Roe had no basis in the Constitution and amounted to a judicial imposition of a value judgment that should have been left to state legislatures.

This is an intriguing idea and I'm sure it will eventually sell a few books for enterprising jurists and lawyers (hey!), especially once the first round of post-Heller circuit splits are established, but I don't think it's very persuasive. The claim that Heller is the conservative Roe is sensationalism. The mere utterance is intended to draw your attention and distract you with shock value. It does not withstand scrutiny.

J. Harvie Wilkinson III, of the Fourth Circuit, writes "The Roe and Heller courts are guilty of the same sins" and identifies what he believes are their four common shortcomings:

an absence of a commitment to textualism; a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation; a failure to respect legislative judgments; and a rejection of the principles of federalism.

But these shortcomings (if we allow for the moment that they are actual shortcomings) apply not only to Heller and Roe but to an almost uncountable number of Supreme Court cases. Consider: the "principles of federalism", whatever they are, are going to be rejected any time a federal constitutional right is found to forbid state action. That is true as a matter of intent. For example, the Fifteenth Amendment was supposed to prevent the states from unduly interfering in voting rights for black Americans.

Of course, when it comes to Roe's expansion of the Fourteenth Amendment, at least the Amendment textually applies to curtail the states ("No State shall..."). It may have been an imposition on the principles of federalism, but there was a method to the madness. Wilkinson's criticism of Heller ignores a key part of Justice Scalia's opinion: it didn't apply to the states. Justice Scalia specifically and intentionally (first update) drew back from extending the holding to the states. Wilkinson acknowledges this, but still attacks Heller for the Court's ominous plan to incorporate the Second Amendment against the states. His concern is premature.

Moreover, to the extent that either case (or any of the hundreds of Supreme Court cases) abandon federalism, the issue is always a matter of degree. One of the central points of contention between conservatives and liberals is over just how much power the federal government was intended to have. But there are few even among conservatives who believe that that the federal arrangement was intended to leave state power undiminished.

Wilkinson's second and third complaints are contradictory. He writes that the Heller and Roe holdings would require fine-tuning through litigation, but that they reveal a failure to respect legislative judgments. I think Wilkinson actually means that it reveals a failure to respect prior legislative judgments. But, of course, that's true of every court case which overturns laws.

The "fine-tuning" that Wilkinson anticipates will come about as various legislatures and local bodies make laws, that is, new "legislative judgments", which may run up against Heller. These laws are going to have their day in court and sometimes the legislatures are going to get it right. The Court has set a boundary that the federal government (and maybe in the future the state governments) may not cross. But that leaves plenty of room for local variance. The alternative is even worse to contemplate and is completely foreign to our judicial system: the Court could, rather than give the legislatures the chance to craft conforming law, simply listed the types of laws that would be allowed. Of course, that would be an even greater imposition on legislative judgments.

To return briefly to the N.Y. Times article, regarding the idea of local variance:

Judge Wilkinson saved particular scorn for a brief passage in Justice Scalia’s opinion that seemed to endorse a variety of restrictions on gun ownership. “Nothing in our opinion,” Justice Scalia wrote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by 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.”

Whatever else may be said about the Second Amendment, Judge Wilkinson wrote, those presumptions have no basis in the Constitution. “The Constitution’s text,” he wrote, “has as little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy.”

This last bit is true, but that ship sailed long ago. The First Amendment prohibits Congress from abridging the freedom of speech. Period. No exceptions, right Judge Wilkinson? The amendment says nothing about regulating commercial speech or obscenity. It furthermore has little to say about shouting "fire!" in a crowded theater. The point of allowing such flexibility is so we don't have to amend the Constitution every time we want to make laws. Such a brittle founding document would have been abandoned long ago as unworkable.

Again, the question is only over how much flex we want the Constitution to have. The Court's answer has been to develop an often complex system of judicial analysis and the most recent trend (including in Heller and Lawrence v. Texas, for example) is for the Court to decline to even state what standard it is applying when overturning laws (second update).

Wilkinson has also helpfully pointed us to an example of local control left undisturbed by the Court's decision. Heller only forbade the outright ban on handguns. Regulation which falls short of an outright ban is still possible for those localities under federal control which want it. The same will likely be true if and when the Second Amendment is incorporated into the Fourteenth.

In short, what Wilkinson has done is show that Heller, like Roe, has a lot in common with many Supreme Court cases. His sensationalist claim ignores the obvious differences between the two cases, not least that the Second Amendment is indisputably concerned with firearms, but that the Fourteenth Amendment never mentions privacy, much less abortion, once. Roe curtailed state power, while Heller is directed at federal power within the District of Columbia. Finally, he is so eager to complain about both decisions that he recklessly labels what are often beneficial features of the Constitution and our courts as common shortcomings.

I intended to discuss Judge Richard Posner's article criticizing Heller too, but this has run a bit long. If there is interest, I may write something about it tomorrow. I'm even more doubtful about Posner's take on this, not least because of his unfair and unworthy caricature of Justice Scalia's so-called originalism.

Incidentally, Adam Liptak has been doing a great job at the Times since he took over from Linda Greenhouse. But he always seems to get at least one key concept wrong in each column and yesterday's is no exception. Adam wrote that the "[t]he more liberal justices said the amendment protected only a collective right tied to state militias, thus allowing most gun control laws. The more conservative justices found an individual right and struck down parts of a District of Columbia gun control law." This is incorrect. Every single opinion, the majority and both dissents, held that there was an individual right to keep and bear arms; the collective rights theory, which dominated for so long is well and truly dead. The justices were divided only on the question of whether and how that individual right is limited. That more than any of the rest of this nonsense is the coup of Heller.

Thanks to DrewM.

posted by Gabriel Malor at 03:14 AM

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