*Cross-posted from The American Prospect
Justice Scalia’s opinion in District of Columbia v. Heller, invalidating the District of Columbia’s gun law, is significant on account of more than its bare holding conclusion that Americans have a personal right to carry a firearm. Scalia’s arguments and logic have implications for how an increasingly conservative Court treats cases. For careful readers, Heller has striking lessons about whose rights the Court protects, what “judicial modesty” in fact means, and the quality of respect the Court shows for democratic institutions. If Heller is a harbinger of decisions to come, it should sow deep concern.
To understand Heller's importance, it is worth setting it alongside another opinion that Justice Scalia wrote this term. In Boumediene v. Bush the Court invalidated Section 7 of the 2006 Military Commission Act, which denied Guantánamo detainees the right of habeas corpus.
In Boumediene, Justice Scalia, joined by Roberts, Thomas, and Alito, filed a fiery dissent criticizing the Court for putting Americans at risk, disrespecting Congress, and abandoning sound judicial methodology. The same four Justices, with Justice Kennedy, struck down the D.C. gun law in Heller.
The gun case and the Guantánamo litigation in fact have much in common. Both concern governmental efforts to deal with a risk of deadly violence. Both involve interpretations of the pre-1800 Constitution: the Suspension Clause of the 1789 document, and the Second Amendment of the 1791 Bill of Rights. And in both the Court had to decide a novel question about the scope of the right in question.
In each case, Justice Scalia’s opinion addresses similar questions. The two opinions, however, use strikingly different interpretative methods. They have a markedly different attitude toward democratic institutions. And they vary sharply in tone.
Consider first the two opinions’ methodologies. In the Guantánamo case, Scalia accuses his colleagues of having “blatantly misdescribe[d]” a key precedent and of having misread history. Yet in Heller, Justice Scalia simply discarded the key 1939 precedent of United States v. Miller, which rejected the individual rights theory of the Second Amendment in Heller. Worse, reminded by Justice Stevens of the literally “hundreds of judges” who had relied on Miller's holding, Scalia offered only a footnote mocking their “erroneous reliance.” Judicial precedent, in short, bites only when he wants it to.
The methodological heart of Heller, however, is Justice Scalia’s much vaunted theory of originalism: the idea that the Court reads the Constitution to mean precisely what its original audience, the ratifying citizens, would have understood it to mean. This has been a cornerstone of Justice Scalia’s tenure on the Court, and since the Meese era at the Justice Department, the rallying cry for conservatives seeking to rein in what they call judicial activism.
Yet Heller shows just how flawed (and activist) “originalism” in fact is. Having announced his originalist credentials, Justice Scalia then passes quickly over the ratification period in order to spend about a quarter of his opinion (15 of 67 pages) discussing the post-1800 understandings of the Second Amendment. As an “originalist” matter, this is at best putting the constitutional cart before the ratifying horse since it’s hardly clear what people in the 1890s thought tells us anything about understandings at the time of the Founding. But then, as historian Jack Rakove has pointed out, the ratification history that an originalist would look to is not as favorable as the post-1800 texts Justice Scalia relies upon.
The application of originalism in Heller is best summarized as the irascible using the inscrutable to seize the ineffable: Looking at the same history, two factions of the Court are able to spin accounts that justify diametrically opposed conclusions. Unlike real historians, neither side could admit that the history might be complex, that there might be ambiguity in the historical record, or that—shocker!—people might have disagreed about what a political enactment meant. And if history is inconclusive, this means “originalist” judges in fact do make substantive choices but then pretend to have their hands tied.
In contrast to Heller, Justice Kennedy’s majority opinion in Boumediene recognized this. Rather than pretending to rely on an opaque historical record, Kennedy had the decency to recognize the need for the Court to reach its own decision using its own reasoning. The resulting opinion, if badly reasoned and puzzling in some other ways, has the small virtue of honesty. It admits that the Court is making a meaningful choice about how the Constitution should be applied today rather than hiding behind history’s skirts.
Ironically, Heller, more than Boumediene, is a judicial intervention that will send shock waves through our judicial system and political economy.
The Boumediene decision will not result in a single detainee being released now. It means simply that each detainee will get a meaningful hearing, not the sham process of “Combatant Status Review Tribunals” that the administration hoped to use. Either way, litigation continues, while remedies remain distant.
By contrast, the immediate effect of Heller will be dramatic—and not just in the District, where residents lose one more ounce of home rule as well as being in new peril. A wave of complex litigation has already appeared. This litigation will exhaust federal court and governmental resources as already cash-strapped cities and states, as well as the federal government, try to beat back diverse challenges to gun laws.
If there is a constitutional right to carry a gun, laws criminalizing weapons possession of various kinds, such as the federal law barring those convicted of a domestic violence from possessing a firearm, will be challenged. Perhaps criminal defendants will also rely on Heller's celebration of the “natural” right of self-defense to argue that states must give that a more ample right of self-defense than presently available. And while Justice Scalia’s opinion, in a brief aside, tried to wave back new challenges, his reasoning was scanty and unconvincing—and, more importantly, not binding as a matter of precedent.
But the greatest practical effect of Heller will be to disable crime-ridden urban centers from dealing with the plague of guns. Already, Chicago’s gun law has been challenged; San Francisco’s is next.
The significance of this cannot be underplayed. As Harvard law professor William Stuntz has cogently argued in a recent article, the racial inequalities of our criminal justice system have arisen in large measure because urban communities have lost control over their own policing policies. Heller deepens that crisis, corroding some of the most important public safety achievements of America’s cities while shifting power away from ravaged urban communities to unelected lawyers and judges from the suburbs.
In his Boumediene dissent, Justice Scalia bemoaned the Court’s “faux deference” to Congress—a criticism Chief Justice Roberts amplifies in his separate dissent. According to Scalia and Roberts, the Court should bend and scrape to democratic legislatures—especially when they are looking out for the safety of the people.
It is thus a bitter irony that Heller so boldly ignores the hundreds of laws enacted to control guns, all democratic manifestations of people’s rightful fear of gun violence. Justice Scalia barely considers the litigation he is unleashing, let alone the lives that inevitably will be lost.
Finally, there is a vivid contrast between the opinions’ rhetoric. While Justice Scalia’s Heller opinion is largely a bland catalog of historical facts (except for one place in which he calls Justice Stevens’ arguments “grotesque”), his Boumediene dissent is fiery screed that begins by accusing the Court of a “bait and switch” that “will almost certainly cause more Americans to be killed,” and then continues in the same vein.
This is a remarkable accusation for a justice to make against his colleagues—all the more striking given that Justice Scalia’s Heller barely gives a nod to the fact that invalidating the D.C. gun ban will likely lead to more Americans being killed.
The contrast between Justice Scalia’s attitudes to risk in the two cases becomes even starker when you look at the evidence of risk in each case. In Heller, the District could point to hard evidence that people would die if the Court invalidated its gun law. In Boumediene, Justice Scalia had to resort to a minority report from a Senate committee, along with some stray news clippings, for the conclusion that 30 released detainees have “returned” to the battlefield. He did not pause to ask whether the figure of 30 returnees to the battlefield had any truth in it. (It doesn’t: Seton Hall professor Mark Denbeaux, in showing this, has called out Scalia for relying on, in effect, “urban legends.”
In tone, method, and due regard for democratic institutions, then, the Scalia opinions in Heller and Boumediene lie poles apart. But this distance is instructive in understanding the thrust of today’s ascendant conservative ideology in the courts. It is the distance between the constitutional rights of the disfavored and marginal on the one hand, and the constitutional claims of the politically privileged. (A distance reinforced by last week’s notable campaign finance decision protecting the right of the wealthy to drown out others’ election-related speech). It is a distance that betrays the thinness of conservative rhetoric about “judicial modesty” and criticism of “judicial activism.” It is the distance between a judge who honestly admits she must make politically fraught choices, and a judge who hides those choices under a bushel of history and then cries “wolf” when the other side wins.
Heller is warning of what the Court might become and a signal of how far it has come from the civil-rights era. And whatever the ultimate impact of its Second Amendment holding, that is a subtext that should not now be ignored in these early years of the Roberts Court.