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).