Heller and Roe

Jason pointed us to this gem from The New York Times Washington section, written by Adam Liptak. And it pains me to say that our criticism is less directed at any Times writer than the eminently respectable Judges J. Harvey Wilkinson III and Richard A. Posner. The article details the (probably exaggerated) criticisms of the recent D.C. v. Heller decision by conservative legal theorists, comparing the reasoning to, of all cases, the majority in Roe.

The judges [Wilkinson and Posner] used what in conservative legal circles are the ultimate fighting words: They said the gun ruling was a right-wing version of Roe v. Wade, the 1973 decision that identified a constitutional right to abortion. Justice Scalia has said that Roe had no basis in the Constitution and amounted to a judicial imposition of a value judgment that should have been left to state legislatures.

Comparisons of the two decisions, then, seemed calculated to sting.

Not quite. There are certainly practical reasons why judges might defer to legislatures (as the pragmatist Posner will tell you). Originalist jurisprudence, however, holds that issues like abortion should be left to state legislatures because that is what the Constitution intended. Nowhere in the text of the Constitution or Bill of Rights is there an explicit right to privacy that the Roe majority so egregiously relied upon. The framers of the Bill of Rights quite explicitly, whether people wish they had or not, dealt with firearms.

This is what Antonin Scalia means, in his Heller majority opinion, when he says that certain policy options are off the table. If the Second Amendment did not exist, or if an abortion amendment did, the 'conservative' legal reasoning on both issues would be far more similar. Scalia et al. would have been happy to leave absolute gun control to the political process if it was something the Constitution allowed the political process to consider.

“In both Roe and Heller,” Judge Wilkinson wrote, “the court claimed to find in the Constitution the authority to overrule the wishes of the people’s representatives. In both cases, the constitutional text did not clearly mandate the result, and the court had discretion to decide the case either way.”

Wilkinson is correct in one regard. This is exactly what the court did in Roe. But any other reading of the Second Amendment besides one that guarantees an individual right is sorely mistaken. The text is as follows:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Nowhere else in the Bill of Rights does the phrase "right of the people" refer to a government's right instead of an individual's. The Bill of Rights was adopted, after much petitioning on the part of anti-federalists, to protect rights of individuals against the state. Just because we tend to think of rights these days as entitlements doesn't mean this has any basis in historical, Constitutional reality.

Scalia and District Court Judge Laurence Silberman provide further historical evidence regarding the term 'militia.' Needless to say, the framers were not thinking of any arm of government, like the National Guard, that would be tasked with saving itself from itself. They were referring to bands of neighbors and citizens who may find it necessary to form a militia to defend their rights against a particular regime. If this seems outdated and absurd today, the amendment process is quite explicit too.

“There is now a real risk that the Second Amendment will damage conservative judicial philosophy” [says Wilkinson] as much as Roe “damaged its liberal counterpart.”

The difference is that liberal judicial philosophy is whatever liberal judges want it to be. Heller does not change the fact that originalists place the utmost respect in what the Constitution allows and forbids.