On Tap

Today’s opinion in the Heller case is classic Scalia. Founded on a profound and in-depth historical analysis loaded with detail, Scalia’s opinion defines originalism. For 54 pages of rhetorical flourish, he constructs an overwhelming argument and disposes in detail of the dissenters’ “wrong headed” contentions. Every word is authentically his.

Until page 54.

There we find a section that seems a bit out of place among Scalia’s defining second amendment opus. In simple, straightforward language, Section III of the majority opinion limits the impact of everything Scalia had previously presented. It is the very definition of judicial modesty.

And to my mind, this section is the illustration of the Chief Justice’s hand at work behind the scenes. The impact, I would wager, could have been the critical difference between a five vote majority with no concurrences or partial joiners. The result? A clear, decisive decision from the high court — a rarity in major cases in recent years.

Now, divining the behind-the-scenes machinations of the Supreme Court is universally difficult and dangerous, but let’s do it anyway.

It’s not hard to see Justice Kennedy flirting with Justice Breyer’s view, which brings the real world impact of importance of the D.C. gun ban to the fore, and suggests that Justice Scalia’s view will result in more crime and real harm to real people. It also invents a new line of Constitutional reasoning that might be appealling to Justice Kennedy’s emerging O’Connor-esque, finger-in-the-wind jurisprudence.

Faced with losing the majority for a strong opinion supporting an individual right to keep and bear arms, one can imagine the Chief Justice penning Section III himself, persuading Justice Scalia to include it, and managing to keep Justice Kennedy on board by assuring him that while the opinion is a landmark, only through further cases will the high court shape the details of Second Amendment jurisprudence.

Indeed, a paragraph near the end of the opinion, which reads almost as though it was added at the last moment, sounds as though it was intended to magnify and clarify the modesty embodied in Section III:

JUSTICE BREYER chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States, our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us. [Citations omitted.]

And then there is the opinion’s last paragraph, which is remarkable for the frankness of its acknowledgement of the real world impact of the Court’s decision.

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is
the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Both of these examples convey an underlying uneasiness among one or more justices who have joined the majority. But whereas in the past, that uneasiness would have manifested itself in a confusing myriad of concurring and dissenting opinions, in the Heller case, the majority hung together. And some force evidently made it so.

Perhaps I am underestimating Justice Scalia by supposing that holding his majority fell to one of his colleagues. There are an infinite number of ways that I could have bungled my own reasoning.

But it is not unfair to say that whatever the mechanics, the outcome is one that anyone who values clear rulings with a minimum of ambiguity can celebrate.

Jim: Say, Marshall… Yes, this is Jim. Yes, I know it’s been a long time since I’ve posted on On Tap. Yes, I know my picture has been affixed with the label “HAVE YOU SEEN ME?” and is now circulating on milk cartons.

Anyway, one line of the post left me grinding my teeth, or even more than usual. You note the section that “limits the impact of everything Scalia had previously presented. It is the very definition of judicial modesty.”

Thus, I fear, strict constructionists will always be outgunned in the legal tug of war in a “4 vs. 4 with one swing vote” Court. The “living constitution” crowd rarely feels the need to make its decisions modest or limited; but even when the strict constructionists make a decision I agree with, they narrowly tailor the decision. It feels like even when we win, we lose.

Cam: I think it’s an interesting take, and it jibes with what I’ve been thinking. I told a co-worker this morning that I had convinced myself that we’d see a 9-0 ruling on an individual right (which we did, or at least the dissent doesn’t argue the individual right point), but that the split would come over how far the right goes. I actually had almost talked myself into believing that Justice Ginsberg would be writing for a 5-4 majority (along with Breyer, Stevens, Souter, and Kennedy) in declaring the 2nd Amendment an individual right but one that the D.C. laws don’t violate. I’m glad I was wrong.

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