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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.

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