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

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.

While the courts kept quiet, an extremely well-funded and powerful lobby group, the National Rifle Association, forcefully and effectively pushed the claim that the Second Amendment confers an individual right to bear arms. The NRA is 4 million-plus members strong and has handed out $15.3 million to candidates (most of them Republican) since 1980. It's credited by some with the 2000 defeat of Al Gore in rural states. But the NRA's political and financial clout pales next to its influence on our constitutional consciousness: National polls consistently show that in the wake of decades of legal scholarship, lobbying efforts, and an unparalleled public education campaign, about 75 percent of Americans believe the Constitution affords a personal right to own guns, even though a slight majority of Americans favor gun control of some sort. That means that over 70 years, public opinion has more or less flipped Miller on its head. It's romantic, really. Most of us longing for the legal reality we already had.

For many decades, this strange disconnect between the public understanding of the Second Amendment and the courts' interpretation simmered silently. In 1991, former Chief Justice Warren Burger even described the "individual rights" view of the Second Amendment as "one of the greatest pieces of fraud—I repeat the word 'fraud'—on the American public by special interest groups that I have ever seen in my lifetime." But the courts, including the Supreme Court, just stayed out of the conflict. Until last year, when the Court of Appeals for the District of Columbia circuit struck down the D.C. gun ban on the theory that the NRA is right, and the Second Amendment does protect an individual right to bear arms.

Perhaps it's actually better for these complicated social questions to be decided by special interest groups than in the courts. But one other group of unsung heroes also led the charge against Miller: liberallegal academics. According to Robert Spitzer, a political scientist at State University of New York-Cortland and author of The Politics of Gun Control, the very failure of the Supreme Court to revisit the fight over the Second Amendment for all those decades created "the allegation of some legal pathology; that the court was avoiding it or embarrassed by it." This sense of intellectual embarrassment prompted one important liberal thinker, professor Sanford Levinson of the University of Texas, to pen a 1989 law review article in favor of a "strong reading" for the individual rights theory of the Second Amendment. Harvard Law School's Laurence Tribe and other prominent liberals followed.

Many of these scholars were less interested in forcing major changes to modern gun-control policy than in insider constitutional housekeeping. (They insist you can't be for strong individual rights under the Constitution and treat the Second Amendment like elevator music.) But the intellectual shift by the liberal academy helped motivate Dr. Robert Levy, a senior fellow at the Cato Institute and the engine behind the Heller lawsuit. Lately, some of those liberal thinkers have even been inching away from the political implications of their constitutional thought experiments.

So long-overdue is Supreme Court scrutiny in Heller that the Bush administration has now staked out one position, while Dick Cheney has staked out another. This has resulted in big fun for court watchers and less fun for the folks arguing against the D.C. gun ban this week. But another interesting question lurks under the showdown on gun rights: whether, in the absence of bold judicial pronouncements, large constitutional matters are truly better thrashed out by well-funded interest groups and well-meaning academics.

A version of this piece appeared in Newsweek magazine.

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