Constitutional Law

The Second Amendment: A Legal Conversation: Part 10

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3, 4, 5, 6, 7, 8, 9.

Part 10. Professor Winkler: Forecasting Heller

I am inclined to agree with you, Mark, that the most likely outcome is that the Court will recognize a private individual right to keep and bear arms unrelated to militia service. While we know little about most of the Justices’s views on the Second Amendment, five Justices are almost certain to favor of the private right view: Justices Thomas, Scalia, Alito, Roberts, and Kennedy.  

Justices Scalia and Thomas have both expressed previously the opinion that the Second Amendment protects a private individual right. Justice Alito and Chief Justice Roberts have not expressed any public opinions on the issue, so far as I know. Given their ties to the Federalist Society, which helped pave the way for their nomination to the federal bench, they more likely than not share the private right view. Within the Federalist Society, the private individual right view of the Second Amendment has been one of the primary unifying commitments of it members. Justice Kennedy, meanwhile, tends to favor expansive readings of individual rights, from speech to privacy, and so might be inclined to vote in favor of Heller.

Heller could become messy, however, when it comes to the standard of review. This could be a potentially divisive issue that leads to a fractured opinion, especially if Justice Kennedy is the decisive fifth vote. While he favors expansive readings of individual rights, he often prefers relatively deferential standards of review to govern those rights. This was his approach in two recent high-profile cases, Lawrence v. Texas, the gay sex case that adopted a rational basis-like standard for privacy, and Gonzales v. Carhart, the late-term abortion case that was extremely deferential to Congress.

Meanwhile, no one would be surprised if Justices Thomas and Scalia stake out a firm position for strict scrutiny. Roberts and Alito are anyone’s guess. The Chief may be motivated by both his institutional role and his expressed personal commitment to minimalism to reject a heightened form of scrutiny that would render most gun control laws subject to challenge. 

Indeed, we might think of Heller as an interesting test of the Chief’s minimalism. If, as he has said, he wants one of his legacies to be consensus building and moderation, one would expect his ultimate view to be one that unites the factions on the Court. Perhaps in this case the best chance for that is with a relatively deferential standard. Such an approach, if it was clearly designed to permit reasonable forms of gun control, might garner some votes among Justices Stevens, Breyer, Souter, and Ginsburg.

Or maybe not. Historically, my tea leaves consistently produce only tea. Part of the fun, however, of a big Supreme Court case, like a big sporting event, is forecasting who will win and why. The sporting events rarely follow the script and this case could well do the same. Another part of the fun is being able to use the case to spark engaging discussion on cutting-edge issues of constitutional law. Mark, I’ve truly enjoyed having the chance to converse here on the ACS Blog about Heller, so thank you. If you or any of our readers will be at oral argument, look for me! 

Full post as published by ACS Blog on March 14, 2008 (boomark / email).