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Justice Scalia, the Second Amendment, and Judicial Conservatives

Following Justice Scalia’s famous opinion in District of Columbia v. Heller, conservative and liberal judges generally agree on the scope of the Second Amendment right.

February 19, 2016

Cross-posted on Case Text

Gun advoc­ates and polit­ical conser­vat­ives soun­ded the alarm within hours of Justice Antonin Scali­a’s passing last Saturday, warn­ing that we are “one justice away from a Supreme Court that would harm our Second Amend­ment Rights.” To prevent that outcome, we have been told by some, the next justice should be a “prin­cipled judi­cial conser­vat­ive.”

But therein lies a funda­mental contra­dic­tion. Put simply, many respec­ted conser­vat­ive judges have not broadly construed the Second Amend­ment. Rather, those judges have done the oppos­ite, critiquing an expans­ive view of the Second Amend­ment right as incon­sist­ent with judi­cial conser­vat­ism and refus­ing to strike down popularly-enacted fire­arm restric­tions.

Gun advoc­ates’ fear about Justice Scali­a’s replace­ment derives from the fact that Scalia penned the most gun-friendly opin­ion in the Supreme Court’s 200-plus-year history. In that case, District of Columbia v. Heller, the Supreme Court struck down Wash­ing­ton, D.C.’s ban on the posses­sion of oper­able hand­guns in the home and held, for the first time, that self-defense is “cent­ral” to an indi­vidu­al’s Second Amend­ment right. Previ­ously, most courts had under­stood the func­tion­ing of a “well-regu­lated mili­tia” (which appears in the Amend­ment), not “self-defense” (which does not), to under­lie the right to “keep and bear arms.”

Heller was a rare triumph for Justice Scali­a’s brand of consti­tu­tional origin­al­ism, but it was not popu­lar among many well-regarded conser­vat­ive judges.

In fact, conser­vat­ive jurists were quick to criti­cize Heller as lack­ing two supposed hall­marks of judi­cial conser­vat­ism: an unbiased review of the evid­ence about the mean­ing of the Second Amend­ment and, given ambi­gu­ity about that mean­ing, judi­cial restraint. Justice Scali­a’s opin­ion, these judi­cial conser­vat­ives argued, deployed an unbal­anced histor­ical analysis, reached a ques­tion­able conclu­sion about a consti­tu­tional right, and failed to defer to the judg­ments of elec­ted offi­cials.

J. Harvie Wilkin­son III, a conser­vat­ive Fourth Circuit judge, likened Heller to Roe v. Wade, and sugges­ted that Heller was a “new” form of judi­cial activ­ism based in “origin­al­ism.” Conser­vat­ive Seventh Circuit Judge Richard Posner agreed in equally stark terms, writ­ing that Heller reflec­ted not conser­vat­ism, but rather “free­wheel­ing discre­tion strongly flavored with ideo­logy.”

To be sure, not all conser­vat­ives agree with this critique from the right and, in any event, Heller is now on the books and the rule of law requires lower courts to abide by it.

But the perceived judi­cial activ­ism under­ly­ing Heller is relev­ant to how lower court judges, espe­cially many judi­cial conser­vat­ives, analyze chal­lenges to gun laws less extreme than the hand­gun ban at issue in Heller. In those cases, judges must decide whether to extend Heller’s core hold­ing — which, in its narrow­est form, is that the Second Amend­ment protects the right of law-abid­ing citizens to possess a hand­gun in the home for self-defense — in order to strike down fire­arm restric­tions in other circum­stances. In making that decision, lower court judges are guided by caution­ary language in Heller itself that the Second Amend­ment is “not unlim­ited” and that the opin­ion should not “cast doubt on long­stand­ing prohib­i­tions,” which are “presumptively lawful.”

In this context, with few excep­tions, lower-court judges — liberal and conser­vat­ive alike — have been cautious in rely­ing on Heller to strike down gun laws.

The reas­on­ing supplied by judges uphold­ing gun laws is varied, but gener­ally invokes Heller’s caution­ary language and reflects tenets of conser­vat­ism: defer­ence to elec­ted offi­cials in the absence of a clear consti­tu­tional mandate and a healthy appre­ci­ation for possible public safety consequences of judi­cial over­reach. As Judge Wilkin­son said in one post-Heller opin­ion, “[t]o the degree that we push the right beyond what the Supreme Court in Heller declared to be its origin, we circum­scribe the scope of popu­lar governance, move the action into court, and encour­age litig­a­tion in contexts we cannot fore­see.”

In the end, Justice Scali­a’s legacy on the Second Amend­ment — in partic­u­lar, his artic­u­la­tion of an indi­vidual right to keep and bear arms —  is likely to stand, and gun advoc­ates’ fears are greatly exag­ger­ated. At a minimum, it would be a mistake to presume that a judi­cial conser­vat­ive would imple­ment the Heller right differ­ently than any other qual­i­fied judge. Judi­cial conser­vat­ism, as we have seen, simply does not imply a maxim­al­ist view of the Second Amend­ment.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.

(Photo: Think­stock)