What this big gun case can teach us about a hands-off judiciary.

The law, lawyers, and the court.
March 17 2008 2:21 PM

Butt Out

A big gun case as a natural experiment in judicial restraint.

A tommy gun
A tommy gun

This week, the Supreme Court will hear arguments in an important gun-control case for the first time in 69 years. And almost lost amid all the polemical screeching on both sides about the contours of the constitutional "right to bear arms" lies the fact that the high court is about step into a cultural conflict for the first time in 69 years.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Think about it: abortion, homosexuality, affirmative action, separation of church and state, the death penalty. The court has gleefully waded into almost every hot-button social issue dividing this country for decades. Both conservatives and some very smart liberals have taken the position that in doing so, the high court has unerringly messed things up. Justice Antonin Scalia contends that the court should not conduct itself like an unelected superlegislature. It's not for the court to invent new rights; it's for the people: "You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it." Meanwhile, at the center-left, thinkers like the University of Chicago's Cass Sunstein agree that judicial "minimalism" or restraint is far preferable to solving sprawling social problems with judicially imposed moral judgments. Some of the country's pre-eminent liberal scholars now go further and contend that had matters as important as abortion and segregation been left up to the democratically elected branches, we would not still be feeling a Warren Court backlash today.

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With District of Columbia v. Heller, these bipartisan critics may have fished their wish. The case tests the constitutionality of D.C.'s sweeping gun ban, which prohibits handgun possession at home unless guns were registered before 1976 and requires that the rifles and shotguns permitted must be kept unloaded and either disassembled or bound by a trigger lock. Last year, by a 2-1 vote, a federal appeals court struck down this ban on the theory that the Second Amendment confers upon "the people" an individual right to bear arms, rather than a collective right to arm its militias.

The most dramatic aspect of Heller—and trust me, the drama abounds—may well be that the last time the Supreme Court issued a major proclamation on the right to bear arms, the year was 1939, and criminals sported fedoras and drove Packards. That makes this case a perfect natural experiment in what happens when the Supreme Court butts out.

All right, then. What happens when the Supreme Court hangs back for decades and quietly allows the political processes to resolve explosive and contentious issues? The vacuum is not necessarily filled by temperate legislative debate. On the gun front, when the courts hung back, the special interest groups rushed in.

The Supreme Court determined in 1939, in United States v. Miller,that an individual right to a gun had no "reasonable relationship to the preservation or efficiency of a well regulated militia," and thus the Second Amendment did not confer individual rights to gun ownership. The court followed with seven decades of constitutional radio silence on the subject, either reaffirming Miller in a whisper or declining to hear new cases. So much radio silence created an assumption that the debate was over: There was simply no individual right protected by the Second Amendment. This led former Solicitor General Erwin Griswold to insist: "[T]hat the Second Amendment poses no barrier to strong gun laws is perhaps the most well-settled proposition in American Constitutional law." Time and again the lower federal courts of appeals followed the Miller line until it appeared the question was settled there, as well.

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