The Second Amendment

by Michael Waldman

  Outside the court, camera crews swarmed, protesters cheered and jeered, and the plaintiffs stood for interviews. Dick Heller answered questions, grinning in front of a handheld sign. It read, once again misquoting Patrick Henry, “THE GREAT OBJECT, EVERY MAN BE ARMED.”

  ORIGINALISM AS LIVING CONSTITUTIONALISM

  Away from the Supreme Court steps, reactions fell along surprising lines. Politicians breathed relief. John McCain, the likely Republican nominee, applauded it; so did Barack Obama. Scalia himself later pointed proudly to Heller as the greatest “vindication of originalism. . . . When I first came on this Court, I was the only originalist. Counsel would not even allude to original meaning,” Scalia told legal journalist Marcia Coyle. “They would cite the last Supreme Court case.” Originalism once had been advanced as a way to avoid the “temptations of politics” on the Court. Now it was the basis for a 5 to 4 ruling that Velcroed snugly to the jurists’ political predilections—in service of a ruling in which judges negated the decision of a local government.

  The most thoughtful progressive scholars recognized that the Court was responding to a broad shift in attitudes about gun rights. For one thing, elections matter. The presidents who appointed the five justices in the majority all were themselves NRA members. In Heller, Yale’s Reva Siegel argued in a brilliant article, “originalism” is the best recent example of “living constitutionalism.” At moments, Scalia was quite frank about the source of the constitutional understanding. Heller let slip that even if “hundreds of judges” had relied on the Supreme Court’s Miller case, that “cannot nullify the reliance of millions of Americans . . . upon the true meaning of the right to keep and bear arms.” Another liberal academic, Cass Sunstein, noted that it can be appropriate for a court to recognize a right because it reflects a consensus. Consider this thought experiment: what would have happened if the Supreme Court ruled the other way—had it proclaimed there was no personal right to carry a gun? Certainly it would have prompted an uproar. It might well have spurred a constitutional amendment.

  While citizens are split on gun control, majorities shift and attitudes change, sometimes depending on how polling questions are asked. Siegel correctly identified Heller as the product of something more purposeful: the long campaign by the gun lobby to create a public climate that would make a Supreme Court ruling inevitable. Siegel and other observers are tracing and quantifying what Finley Peter Dunne’s “Mr. Dooley” observed a century ago when he noted, “No matter whether th’ Constitution follows th’ flag or not, the Supreme Coort follows th’ iliction returns.” This new school of liberal scholars is spelling out ways the Court responds to public opinion. Far from a principled reliance on the intent of the Framers in 1791, they suggest, the opinion’s originalism is little more than “living constitutionalism” with a Southern accent. There is an unnerving risk: that judges will feel emboldened by a vague sense of public opinion, or manipulated by pressure groups. When elected bodies such as the Washington, D.C., City Council enact laws, through normal processes rife with messy compromise, they ought to be given greater weight. Even though most members of Congress signed a brief urging the Court to strike down the District’s handgun law, those same lawmakers never got around to passing a law that would do exactly that, even though the federal government has ultimate power over the capital’s local laws.

  Liberals, in short, mostly responded to Heller with a practiced shrug: is it really a surprise that the Court would rule as it did, given its political alignment? For progressives, the opinion with all its pretensions was one more piece of evidence for a chastened, realistic assessment of the Court and its role in American politics.

  Meanwhile, some prominent conservatives have denounced Heller. For them, the case marked a return of loosey-goosey constitutionalism of the kind they, and Scalia, had spent a career eviscerating.

  J. Harvie Wilkinson III, a federal appeals court judge from Virginia, scorched Scalia’s opinion. Wilkinson was a former Reagan official, whom President George W. Bush had interviewed as a possible chief justice nominee. (Bush grilled him on his fitness regimen.) His impeccable standing among conservatives made his words sting. Heller, he said, was as great an act of judicial overreaching as Roe v. Wade.

  After decades of criticizing activist judges for this or that defalcation, conservatives have now committed many of the same sins. In Heller, the majority read an ambiguous constitutional provision as creating a substantive right that the Court had never acknowledged in more than two hundred years since the amendment’s enactment. The majority then used that same right to strike down a law passed by elected officials, acting, rightly or wrongly, to preserve the safety of the citizenry.

  Wilkinson was particularly aghast at the paragraph listing permissible gun restrictions. “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” (the medical methodology used by Justice Harry Blackmun in Roe).

  Richard Posner was even more perturbed. Posner is one of America’s leading public intellectuals. (He made the list, and put himself on it, but it’s true.) A rare polymath, he is a judge on the U.S. Court of Appeals for the Seventh Circuit, continues to teach at the University of Chicago, publishes a blog with a Nobel laureate economist, and churns out books on topics from the financial crash to law and literature. Posner pioneered the use of economics in law. He was anything but economical in his scorn for Heller. “It is questionable in both method and result, and it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology,” he wrote in The New Republic. Perhaps, he speculated, “turnabout is fair play” after liberal decisions. Posner mourned the fact that local governments would be blocked from enacting local policies because of the political sentiments of a majority of Americans. Even the opinion’s purported originalism left him cold. “The range of historical references in the majority opinion is breathtaking, but it is not evidence of disinterested historical inquiry. It is evidence of the ability of well-staffed courts to produce snow jobs.”

  Then things got really nasty. With a coauthor, Scalia published Reading Law, a 567-page treatise on how to interpret legal texts—his magnum opus arguing that the meaning of laws, and constitutions, does not change over time. Posner’s review: “incoherence.” “Heller probably is the best known and the most heavily criticized of Justice Scalia’s opinions. Reading Law is Scalia’s response to the criticism,” Posner wrote. “It is unconvincing.” He noted that whatever he might claim, Scalia “is doing legislative history” when he scours for “original meanings of eighteenth-century provisions.” Legislative history: them’s fightin’ words. Scalia stammered to an interviewer that Posner’s assertion is “simply, to put it bluntly, a lie.” It’s a good thing the two did not have guns.

  Another telling critique, at least implicit, came from another conservative judge, Frank Easterbrook, also on the Seventh Circuit. His seeming slap came in an unexpected place: in the foreword to Scalia’s book. “Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption understood those words. The older the text, the more distant that interpretive community is from our own. At some point the difference becomes so great that the meaning is no longer recoverable reliably,” Easterbrook wrote. When that happens, the courts should “declare that meaning has been lost, so that the living political community must choose.” He dryly cites Heller as a controversial example. Reviewing the volume, Posner noted it was hard to escape that the “living political community” in Heller, Richard Posner noted, “consisted of the elected officials, and the electorate, of the District of Columbia.”

  In effect, these three leading conservative jurists were calling out Scalia for having become what he, and they, had decried for years: a judicial activist who conjured spurious legal theories to justify Court interventions int
o the political process that just happened to advance their policy views and political aims.

  RIGHT TURN

  Heller was the first major case in which the Roberts Court upended years of precedent to move in a conservative direction. It was not the last.

  Two years later, in 2010, the same five justices issued Citizens United v. FEC. There the Court overturned the long-standing bar on corporations and unions spending unlimited sums to defeat or elect candidates. No nod to minimalism, here. It erased decades of Supreme Court precedent. It also nullified federal law dating back to 1907, when President Theodore Roosevelt fought for a law banning corporate election spending. (He had been caught in a campaign finance scandal, and he wanted to defend his honor. Without reform, he declared, “Sooner or later, there will be a riotous, wicked, murderous day of atonement.”) Neither party in Citizens United had asked for this result. The opinion rang with indignant tones. “The censorship we now confront is vast in its reach,” wrote Justice Anthony Kennedy. “The government has muffled the voices that best represent the most significant segments of the economy.” Justice Stevens dissented again. “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

  Two years after, the Court came within inches of striking down the Affordable Care Act, the health care law popularly (and unpopularly) known as Obamacare. In the end, Chief Justice Roberts joined the majority to hold the law constitutional under the “taxing power.” But the Heller majority justices found the statute’s requirement that individuals buy health insurance violated the Commerce Clause, which gives Congress power to regulate the economy. Originalists insisted the Supreme Court got it wrong in 1937 when it dropped its resistance to government regulation of business. Some called it the “Lost Constitution.” Had the Court struck down Obamacare on the grounds that it exceeded Congress’s power under the Commerce Clause, it would have set in motion forces that would have toppled statutes going back to the New Deal. Dozens of laws and hundreds of prior cases could have been at risk.

  Then in June 2013, in Shelby County v. Holder, the Court effectively overturned the key provision of the Voting Rights Act, perhaps the nation’s most effective civil rights law. Again, the five Heller justices ruled. Again, they undercut carefully crafted laws. The original 1965 statute came after beatings of civil rights marchers at the Edmund Pettus Bridge in Selma, Alabama, galvanized President Lyndon Johnson and Congress to act. It was reauthorized three times. In 2005, the Senate voted 98 to 0 to reauthorize it, and the Supreme Court upheld it, as it had repeatedly. At oral argument, Scalia declared that the Voting Rights Act perpetuated “racial entitlement.” “Even the name of it is wonderful: the Voting Rights Act,” he added. “Who is going to vote against that in the future?” In its ruling the Court effectively ended Section 5, which required the Justice Department or federal courts to approve in advance changes in voting laws in jurisdictions with a history of discrimination. The opinion drew on some imaginary originalism: it explained the law violated a constitutional rule of “equal sovereignty”—not among people, but among states. This phrase, with a murky provenance, only has ever previously applied to the terms on which states entered the Union. It poses severe challenges for other laws that are premised on the aftermath of slavery, sounding an echo of Southern complaints about Reconstruction. Faulkner would have understood: “The past is never dead. It’s not even past.”

  Not all these rulings relied on originalism. Rather, beyond their ideological bent, they seem suffused with contempt for Congress, or more broadly for elected governments.

  To be sure, Roberts displayed a canny sense when to press, and when to retreat. In spring 2009, the same five justices had made clear their itch to overturn the Voting Rights Act, but pulled back. Jeffrey Toobin reports that Roberts first sought a narrower ruling in Citizens United, then lost out to the emotional First Amendment soliloquy ultimately in Kennedy’s opinion. The Court sprang multiple leaks to reveal that Roberts first voted to kill the Affordable Care Act, then changed his vote. If so, his switch in time saved the nine from being a central campaign issue for years to come. Roberts cannot dictate results; his role is more akin to a legislative leader heading a rowdy and ideological caucus. But he seems always to have his eye on the gauge of public respect for the Court. Given the frequent dysfunction consuming the rest of the capital, it is a pleasure to watch an institution run well. But it is running hard to the right.

  Lines are not neatly drawn. The same week the Court gutted the Voting Rights Act, it also struck down the Defense of Marriage Act, also approved by an overwhelming majority of Congress in 1996. DOMA refused federal recognition for legal same sex marriages. There were crucial differences. The 2013 case was in fact the first time the Court weighed DOMA’s constitutionality. More, it came in a pair of opinions where the Court actually sidestepped the need to overturn the marriage laws of four out of five states to rule that equal protection required states to allow same sex marriages. The strongest justification for overturning DOMA—powerful if largely unspoken—was that the country had evolved, progressed. Our understanding of equality has changed over time. Seen in that light, the DOMA ruling served as the most recent application of long-standing constitutional principles. Bitterly dissenting, Scalia denounced the marriage equality ruling. “[We] have no power under the Constitution to invalidate this democratically adopted legislation,” he complained, an error that springs from a “diseased root: an exalted conception of the role of this institution in America.” Perhaps he was being droll.

  Scholars debate the intensity of the Roberts Court’s activism. Ruth Bader Ginsburg, in a rare public rebuke, called it “one of the most activist courts in history.” Some argue these justices are no more prone to strike down federal laws than their predecessors. That measures quantity, not quality. Not in decades has the Court overturned laws of such reach. And never over a century have the justices relied so frequently on assertions about original intent and meaning. Heller stood most explicitly. Prior court precedent was skimpy. That hardly explains the health care decision: it, too, focused intently on what the Framers meant by “commerce,” despite myriad relevant precedents. Citizens United, by contrast, could not rely on history—at the time of the founding, for profit corporations of the kind we have today did not exist. And Shelby County’s rationale appears to be “that was then, this is now.” What seemed to matter most, in each of these cases, was outcomes: the political coalition of the party that appointed the justices, with gun owners, business, and white Southern voters at its heart, proved more powerful than any interpretive methodology. Perhaps this ought not to surprise.

  This much is evident: after public backlash (and electoral shifts), for three decades left and right stalemated on the Court. No more. Today’s justices seem constrained only by their sense of what the political market will bear. Originalism and textualism have proven no more principled as methods of interpretation than any other.

  ON THE ROAD

  Students, neatly pressed; faculty; alumni; journalists: over seven hundred of them filled Princeton’s Neo-Gothic Richardson Auditorium the afternoon of December 11, 2012. Antonin Scalia looked out over the crowd. The Supreme Court justice, in his twenty-sixth year on the Court, had settled into his shtick: opinionated, jovial, garrulous, a hint of arrogance. It was a friendly audience, thrilled to be in the presence of a renowned jurist and not entirely unhappy with the contents of his talk, either. The James Madison Program sponsored the lecture. Its other public events the same academic year included “Left Turn: How Liberal Media Bias Distorts the American Mind” and a panel on “Benghazi: What Do We Know? What Don’t We Know? What Do We Need to Know?”

  Some applauded when a freshman asked the justice why he had compared homosexuality to bestiality and murder. Others applauded when Scalia pugnaciously replied, “I don’t apologize for the things I raised. I’m not comparing homosexuality to murder. I’m compari
ng the principle that a society may not adopt moral sanctions, moral views, against certain conduct. I’m comparing that with respect to murder and that with respect to homosexuality.”

  Scalia was in his element. His greatest passion came when he propounded his jurisprudential vision. “I have classes of little kids who come to the court, and they recite very proudly what they’ve been taught, ‘The Constitution is a living document.’ It isn’t a living document! It’s dead,” Scalia declared. “Dead, dead, dead!” The crowd laughed.