Like 'Em Or Hate 'Em....

Whatever your personal position on cases like Heller and Roe, today George Will does a pretty good job of explaining how those decisions lead to cases that require judges to substitute their policy preferences for actual interpretation and application of the Constitution. In terms of Roe,

Parental consent? Spousal consent? Spousal notification? Parental notification? Waiting periods? Lack of funding for nontherapeutic abortions? Partial-birth abortion procedures? Zoning ordinances that exclude abortion facilities? The court has tried to tickle answers for these and other policy questions from the Constitution.

In terms of Heller,

Now the court must slog through an utterly predictable torrent of litigation, writing, piecemeal, a federal gun code concerning the newfound individual right. What trigger locks or other safety requirements impermissibly burden the exercise of this right? What registration requirements, background checks, waiting periods for purchasers, ballistic identifications? What restrictions on ammunition? On places where guns may be purchased or carried? On the kinds of people (e.g., those with records of domestic violence) who may own guns? On the number of gun purchases in a month?

Where do I disagree with Will? While he, as a pundit, has fully embraced the notion that conservatives favor judicial restraint, the reality is quite different. Heller is not an exceptional ruling following a history of conservative deference to constitutional language and state and federal legislatures, it's a continuation of an activist history masquerading behind claims of "originalism" or "textualism". For the most part, political partisans either don't pay attention to the other side's judicial excesses, or simply don't care about their own. Will's column suggests that he falls into the former category, but now that he is aware of the issue it's up to him to demonstrate how much he actually cares about judicial activism that advances his own political agenda.

It has been said that the most important word in the Supreme Court's lexicon is not "liberty" or "equality" or even "justice," it is "five." But whereas in baseball a tie goes to the runner, in controversies about the constitutionality of legislation, a tie between serious arguments should, Wilkinson says, tilt judicial judgment to the democratic side - the legislature.

Except if the subject is campaign finance reform? Seriously, when it's your own ox that's being gored, it's really difficult to take a step back and say, "We should defer to the legislature," as opposed to, "Those judges are gutting the Constitution and stripping this right of any meaning." Moreover, whatever the right, there's a point where that will be true. Then what? Do we simply check to see whether or not the legislation under review includes "findings" that nominally support the legislation? Legislatures figured that game out a long time ago.

Will closes,

So, regarding judging, too, conservatism is a house divided. And as Lincoln said (sort of), a house divided against itself is really interesting.

And Will raises interesting issues that, unfortunately, aren't likely to be resolved at any time during the next two centuries of constitutional litigation.

Is Heller Maximization The Best Idea?

Usually in gun control arguments, the slippery slope is used as an argument in favor of gun control. The inherent weakness of that argument often works in favor of those on the other side. But now, as David Kopel demonstrates, advocates of gun rights are taking a maximalist approach to Heller that reminds me of the slippery slope. "I want it all, and I want it now." Particularly when arguing for sweeping change based on a right granted not by a state constitution but by legislation, shouldn't care be taken not to signal the legislature to tighten the language? Kopel's approach of arguing for the most expansive possible reading of Heller and then arguing that New York is compelled to follow most or all of what he argues seems, to me, to be a very effective way of inspiring legislative action - and not in the direction Kopel desires.

The New York City law which most obviously violates the right to arms is the complete ban on air guns. The venerable Daisy Red Ryder BB gun is contraband. Heller and the Supreme Court's previous major Second Amendment precedent, United States v. Miller (1939) forbid the prohibition of arms "typically possessed by law-abiding citizens for lawful purposes."

Has Kopel read Miller, the case that upheld a ban on short-barrelled shotguns? That case said this:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

Note, I'm not defending the air gun ban. To me it seems excessive. I suspect that the concern is that people will commit crimes using air guns that the victims believe to be actual firearms, or that the police will encounter civilians or children with air guns potentially resulting in tragedy. But I'm not going to premise a Second Amendment argument for a right to possess air guns on, of all cases, Miller.

I recognize that Kopel is alluding to Scalia's sniffing at Miller, a case Scalia described as "virtually unreasoned", but Kopel's interpretation of Scalia's synopsis of Miller is not well supported by its text, and it seems rash to extrapolate that Miller upholds a Second Amendment right to possess air guns. It seems even more rash to disregard Scalia's open contempt for Miller in arguing that it is the "previous major Second Amendment precedent". It was major up to the time Scalia's majority opinion called it "virtually unreasoned". Now I suspect it's a footnote.

I also question Kopel's attenuated argument,

Unlike firearms, air guns (which shoot small BBs or pellets) can be safely used inside an apartment or house. An old sofa cushion is a safe backstop. In a city where target ranges are few and expensive, air guns offer a practical way for people to practice safely with a gun. The right to arms necessarily includes the right to practice arms safety.

So if you have a right to keep and bear arms, you have a right to practice firing your arms. But the government has legitimate safety reasons to prevent you from doing so in your home. And it's inconvenient to go to a shooting range. So you should be able to shoot other things that resemble the weapons you actually want to train with, within your home. Provided you stack some couch cushions against the wall. Okay - but how many people actually do that - use their BB guns to train instead of using their actual firearms? And why don't I have the right to shoot actual firearms into a stack of sandbags in my basement, assuming reasonable noise proofing?

Regarding gun carrying, Heller might, arguably, mean that New York City would have to follow a similar policy to Connecticut (and 39 other states): issue permits to carry a concealed handgun for lawful defense if the applicant is over 21, and passes a fingerprint-based background check and a safety class.

My initial reaction is, "Not gonna happen." Or perhaps it will happen, but only after a lengthy period of adjustment to the new case law and its effect on crime (which I expect to be minimal). But I can't think of a better way to cut off that process of adjustment and inspire the New York legislature to amend state civil rights law than to argue, "Second Amendment scholars are arguing that under Heller, most people will be allowed to freely carry concealed weapons throughout New York City."