Result-driven judicial imperialism may soon have a conservative and a liberal version. The United States Supreme Court has granted review in a case this term (McDonald v. City of Chicago) that presents the watershed issue of whether the individual right to bear arms protected under the Second Amendment and established in 2008 in District of Columbia v. Heller applies against the states or just the federal government. Most Court observers agree that it appears very likely that the Heller majority—Chief Justice Roberts and Justices Scalia (who wrote the opinion), Thomas, Alito, and Kennedy— will stay together to incorporate this new reading against state and local gun regulations. (McDonald, like Heller, involves a handgun ban.) Such a result will visit irreparable damage on the doctrine of original understanding, one of the theories of constitutional interpretation referred to as “originalism,” which seeks constitutional meaning through text and context: that is, by a rigorous reading of the actual language of the Constitution and the historical understanding of that language. This is a doctrine of judicial modesty that is in sharp contrast to the adventurism of Heller and its likely incorporation.
Heller itself is the root of the problem. In that case, Justice Scalia brought together a large quantity of historical information to support the argument that the Second Amendment (“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”) embodies an individual right not connected to military service to keep and bear arms. However, in a cogent dissent that also relied extensively on history, Justice Stevens concluded that the Amendment did not create any such individual right. While the historical record does not unambiguously point to one conclusion on such a complicated question, the Heller Court nonetheless aggressively declared a brand-new individual right.
Justice Scalia’s opinion received predictable criticism from liberals, but the most devastating critique of Heller came from the esteemed conservative federal jurist J. Harvie Wilkinson, III, of the United States Court of Appeals for the Fourth Circuit. In his trenchant analysis, “Of Guns, Abortions, and the Unraveling Rule of Law,” published in the Virginia Law Review, Wilkinson argues that Heller “represents a failure—the Court’s failure to adhere to a conservative judicial methodology in reaching its decision.”
In fact, the Court’s failure in Heller, says Wilkinson, is strikingly similar to its catastrophic decision in Roe v. Wade. Wilkinson identifies “four major shortcomings” in Heller: “an absence of a commitment to textualism; a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation; a failure to respect legislative judgments; and a rejection of the principles of federalism.” Wilkinson expects the incorporation of the Second Amendment with its Heller reading. And that extension is precisely the problem: “As courts get drawn father into the gun control thicket, they will be forced, as they were by Roe, to decide contentious questions without clear constitutional guidance.”
Even with all its flaws, the Heller decision currently applies only to the District of Columbia. That is because the Second Amendment has not—yet—been applied against the states. This process of applying the specific guarantees of the Bill of Rights, which originally were restrictions that operated against only the federal government, is known as “incorporation.” Decades after the ratification of the fourteenth amendment in 1868, the Court began, without any textual or historical basis, the piecemeal application of various provisions of the Bill of Rights to the states through the due-process clause of that amendment (“nor shall any State deprive any person of life, liberty, or property, without due process of law”). The entire Bill of Rights is not incorporated (the Fifth Amendment’s indictment-by-grand-jury requirement, for instance, does not bind the states); we currently have what is referred to as a system of “selective incorporation.”
Incorporation represents one of the true revolutions in American politics and law. It has subverted the careful balance between federal and state power and dramatically increased the power of federal courts. It is, moreover, a judicially manufactured revolution in its entirety. With its highly dubious historical foundation, incorporation is a doctrine that originalists have rightly challenged for its absence of legitimacy even as they must live with its precedential force. Now, they are being seduced with a new theory in McDonald: the idea that incorporation of the Second Amendment should be through the privileges-or-immunities clause of the fourteenth amendment (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”).
Historically, this clause was nullified in The Slaughter-House Cases (1873). All of the subsequent extra-textual judicial overreaching, whether through incorporation or the judicial invention of rights, has been through the due-process clause. In recent decades, however, scholars of the government-by-judiciary school have been attracted to a revival of this clause because of its vagueness. (Not only scholars: Justice Thomas, of all people, expressed interest in the clause’s resuscitation in a 1999 case.) For example, the most adroit advocate of judicial adventurism of his time, John Hart Ely, in his enormously influential book Democracy and Distrust (1980), concluded that “the most plausible interpretation of the Privileges or Immunities Clause is, as it must be, the one suggested by its language—that it was a delegation to future constitutional decision-makers to protect certain rights that the document neither lists, at least not exhaustively, nor even in any specific way gives directions for finding.”
This reading provides a very capacious abode for the judge-as-policymaker ideal that is beloved of judicial supremacists but is, or used to be, anathema to conservatives. An incorporated Heller right would mean that every gun regulation enacted by state and local governments would potentially be subject to review by federal courts, which have no expertise or guidance in this area. The serious flaws identified by Wilkinson will lead to increasingly subjective and ad hoc judicial rulings by those who, in all other contexts, are the fiercest critics of that slipshod method of judging.
The interpretive doctrine of original understanding has reached a high level of sophistication and influence, especially in the opinions of Justices Scalia and Thomas. However, it is in danger of losing its principled foundation because its most celebrated practitioners are pursuing the nationalization of an individual right to bear arms on exceedingly thin constitutional authority. Wilkinson is justified in his yoking of Heller with Roe, and once the questionable determination reached in Heller applies to every gun regulation enacted at any level of government, it will be well-nigh impossible to tell the originalists from the make-it-up-as-you-go-along crowd on the Court.