October 24, 2008

Was Heller an Activist Decision?

As Adam Liptak wrote in The New York Times a few days ago, the Supreme Court’s recent decision in District of Columbia v. Heller has come under attack from several prominent conservative legal scholars. It is easy to understand how opponents of judicial activism, many of whom are admirers of Justice Scalia (the author of the majority opinion in Heller), would be ambivalent over the decision. These people see the historical links as tenuous and find the Second Amendment’s prefatory clause (“A well regulated militia, being necessary to a free State,”), as relevant to the understanding of the operative clause (“the right of the people to keep and bear Arms, shall not be infringed”). It seems that most of the general public, though, sees the Second Amendment as granting an individual right to bear arms.

In his critique of the decision, Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit stated that Heller “is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.” Judge Posner criticizes the originalism used by Justice Scalia, saying:

“Originalism without the interpretive theory that the Framers and the ratifiers of the Constitution expected the courts to use in construing constitutional provisions is faux originalism. True originalism licenses loose construction. And loose construction is especially appropriate for interpreting a constitutional provision ratified more than two centuries ago, dealing with a subject that has been transformed in the intervening period by social and technological change, including urbanization and a revolution in warfare and weaponry.”

Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit compares Heller to Roe v. Wade in a forthcoming article in the Virginia Law Review, saying “the comparison is apt. In a number of important ways, the Roe and Heller Courts are guilty of the same sins.” This teaser of Judge Wilkinson’s forthcoming article is all we have at the moment, but his argument is provocative, to say the least.

Was Heller a form of judicial activism by Justice Scalia? Or did Justice Scalia use history to the best of his ability to understand the original intent of the framers when they wrote the Second Amendment? These are difficult questions to answer, and depending on which conservative one asks, apparently a variety of answers can be found.