J. Harvie Wilkinson III (United States Court of Appeals for the Fourth Circuit) has posted Of Guns, Abortions, and the Unraveling Rule of Law (Virginia Law Review, forthcoming) on SSRN. Here is the abstract:
Conservatives across the nation are celebrating. This past Term, in District of Columbia v. Heller, the Supreme Court held for the first time in the nation's history that the Second Amendment protects an individual right, unrelated to military service, to keep and bear arms.
I am unable to join in the jubilation. Heller represents a triumph for conservative lawyers. But it also represents a failure - the Court's failure to adhere to a conservative judicial methodology in reaching its decision. In fact, Heller encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.
In this Essay, I compare Heller to another Supreme Court opinion, Roe v. Wade. The analogy seems unlikely; Roe is the opinion perhaps most disliked by conservatives, while many of those same critics are roundly praising Heller. And yet the comparison is apt. In a number of important ways, the Roe and Heller Courts are guilty of the same sins.
And from the text:
While Heller can be hailed as a triumph of originalism, it can just as easily be seen as the opposite—an exposé of original intent as a theory no less subject to judicial subjectivity and endless argumentation as any other. Roe’s flaw was not just that it was anti-originalist, but that it was inimical to the values of textualism, self-restraint, separation of powers and federalism as well. These values too were central to the Framer’s design and intent. These values too are the solid foundation of conservative thought. Unlike the aggressive brand of originalism practiced in Heller, these values alone guarantee that the judiciary will resist the lasting temptation to enshrine its own preferences in law.
Heller has swept away these counsels of caution. It has left only originalism as the foundation of conservative jurisprudence. A set of reasonable tenets each providing a separate check on judicial activism has now been replaced by a singular focus on original understanding. Whereas once legal conservatism demanded that judges justify decisions by reference to a number of restraining principles, Heller requires that they only make originalist arguments supporting their preferred view. Yet originalism cannot bear the weight that the Heller majority would place upon it. It is not determinate enough to constrain judges’ discretion to decide cases based on outcomes they prefer.
[D]espite a difference in the magnitude of judicial overreaching, the methodological similarities between Roe and Heller are large. Both cases interpreted ambiguous constitutional provisions and both claimed to find in them mandates that put to rest an extremely controversial issue of social policy, in the process overturning decisions by popularly elected officials. If there is a reasonable case for the majority’s interpretation of the Second Amendment, there is also a reasonable case for the position taken by the dissenters.
* * *
When a constitutional question is so close, when conventional interpretive methods do not begin to decisively resolve the issue, the tie for many reasons should go to the side of deference to democratic processes. For a court that decides to strike down legislation based on an interpretation of the Constitution that is only plausible and not incontrovertible will appear to the public to be exercising discretion. And when a court appears to be exercising that discretion in a way that arguably accords with the political preferences of the judges in the majority—as was the case in Heller—more members of the public lose faith in the idea that justice is blind.
I urge you to read this important statement--which is highly recommended. I recommended Wilkinson's essay despite some serious reservations. The essence of Wilkinson's position on Heller is that the meaning of the Second Amendment is ambiguous, but as I read his arguments that do not actually support that conclusion (or at least, not clearly). Wilkinson notes that there were arguments on both sides in Heller--but if the existence of reasonable arguments on both sides of a question justified deference to the political branches in constitutional cases, then deference would be a rule with very few exceptions indeed. Nor can deference be justified on the ground that different (reasonable) constitutional theories call for different results on a constitutional question--again, this principle would lead to almost universal deference in the kinds of constitutional cases on which the Supreme Court pronounces. What would make Wilkinson's argument plausible is a demonstration that the text of the Second Amendment actually contains an irreducible ambiguity given the best theory of its semantic content (or linguistic meaning). When we cannot determine the original public meaning of the constitutional text, then one might reasonably argument for a principle of construction that defers to the political branches (Keith Whittington's theory of constitutional construciton points in this direction). There may be other circumstances that would trump the semantic content of the constitution (long-established precedent or historical practice), but the holding of Heller (striking down a total handgun ban) did not alter a deeply entrenched constituitonal precedent or practice.
My ultimate verdict on Wilkinson's essay is that it relies on a very serious conceptual error--essentially equating ambiguity of linguistic meaning with the existence of reasonable disagreement. Nonetheless, read Wilkinson.