Bench Memos

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A Mild Dissent


Recently I have been touting the “Kennedy Rule” as a shorthand understanding of the Supreme Court’s behavior: that if the Court votes 5-4 to invalidate any law or public policy as unconstitutional, and Justice Anthony Kennedy was one of the five, the case was wrongly decided.  One or two incredulous readers (from left and right) have wondered if this rule, or its predecessor the O’Connor Rule (stated the same), would mean that I’d condemn this or that notable “conservative” overturning of a law, of which there have been several in recent years.  Yes, I would, in all the cases named to me so far.  The justices commonly described as “conservative” are perfectly capable of their own form of judicial activism.  It happens less often, but it happens.

I think it happened again yesterday, in D.C. v. Heller.  In my opinion, the Kennedy Rule still holds true.  The Kennedy Corollary–that the opinion in the case will be incoherent if written by Kennedy himself–does not apply here, since the majority opinion is by Antonin Scalia.  And because it is by Scalia, the opinion bears some careful study before one can speak with utter confidence.  But now that I’ve been through all three opinions with some care on a first reading, I can say that my initial very strong impression is that Justice John Paul Stevens has better linguistic analysis, more relevant history, and sounder constitutional logic in his dissent than Scalia has in his opinion for the Court.  Justice Stephen Breyer’s opinion is not for the most part very useful or instructive, although he does ask some good questions toward the end about what the majority’s holding will mean in practice for a variety of different kinds of gun control laws.

I say this without any policy axe to grind at all.  I oppose gun control root and branch (unless one means by gun control “hit what you’re aiming at”), and I think D.C.’s handgun ban was stupid, unjust, and quite possibly responsible in part for the city’s crime rate.  But Scalia’s opinion I simply find unpersuasive.  Yesterday, I think, Stevens was the better textualist and the better originalist.  “But this guy is usually a judicial activist, he’s a defender of abortion rights, and probably likes gun control to boot” may all be true, but irrelevant, if he’s right on the merits of the Constitution.  And this time I think he is.

One thing said by Justice Stevens is undeniable–that the Court’s ruling “will surely give rise to a far more active judicial role in making vitally important national policy decisions than was envisioned at any time in the 18th, 19th, or 20th centuries.”  Yes, it’s Stevens saying it, but if he’s right, he’s right.  Once again, thanks to a five-justice majority (that includes Justice Kennedy), we are in for a future that entails increased government by judiciary.  That the terms of gun ownership are now subject to the impulses of any five members of the U.S. Supreme Court is not, for me, a pleasing prospect.  The matter was better left in the hands of democratically elected institutions.

I know this view sets me apart from Ed Whelan, NRO’s editors, and others I respect.  So I just can’t wait for all the mail telling me I’m crazy.  And right now I don’t have time for elaborate argument on the matter, and will content myself with saying that Stevens’s opinion should be read with care and an open mind.

But I will say that some of the reactions on the side that favored the outcome have rivalled the hysterical upset on the losing side.  The Wall Street Journal’s editors, for instance, tell us that “the Second Amendment came within a single vote of becoming a dead Constitutional letter.”  But even if Justice Stevens had won the game of “capture Justice Kennedy,” and assuming (which I don’t) that Stevens is wrong about what the Second Amendment really means, this doesn’t follow at all.  When the Supreme Court fails in its duty to invalidate a law that should be invalidated, it is up to the rest of us to defend what the Court will not.  On the matter of gun ownership, with the exception of a few extreme states and localities, “the rest of us” have a history of two centuries of doing pretty well without any back-up from judge-made constitutional law.  It wasn’t the Supreme Court that said I could walk into my local Wal-Mart here in Virginia and buy ammo with cash and no ID.  And I doubt very much that that would have changed if Heller had gone the other way.

My favorite silly statement of the day, though, came from George Will, who said that the Heller case showed that the Second Amendment “is, for weighty reasons, second only to the First.”  Uh, sure, George, if you say so.  This is akin to that old profundity that “the First Amendment is first for a reason!”  The only thing is, when the First Congress drafted what we now call the Bill of Rights, it sent out twelve proposed amendments.  The first two were not immediately ratified (one of them eventually was, many years later, as the 27th).  If they had been, the First Amendment would have been the Third, and the Second would have been the Fourth.  So you see . . .


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