Alan Gura: "Heller and the Triumph of Originalist Judicial Engagement"

Damon W. Root | July 9, 2009

Writing in the Virginia Law Review last fall, conservative federal appeals court Judge J. Harvie Wilkinson III took aim at the Supreme Court's landmark gun rights opinion in District of Columbia v. Heller. According to Wilkinson, "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 fact, Wilkinson went so far as to compare Justice Antonin Scalia's majority opinion in Heller with the Supreme Court's famous abortion rights decision in Roe v. Wade, which is not exactly the nicest thing one conservative judge can say about another's work. Yet as Wilkinson saw it, Heller opened the door to decades of future litigation, disregarded clear legislative preferences, and aggrandized the judiciary at the expense of the other branches and the people—"the same sins," he said, that characterized Roe.

Is Judge Wilkinson right? Should the courts practice judicial restraint when it comes to Second Amendment rights? Alan Gura, the brilliant attorney who argued and won Heller before the Court, thinks not. In a compelling and carefully researched new article forthcoming from the UCLA Law Review titled "Heller and the Triumph of Originalist Judicial Engagement: A Response to Judge Harvie Wilkinson," Gura explains why the Heller Court got it right. From the abstract:

Judge J. Harvie Wilkinson criticizes the U.S. Supreme Court's landmark decision in District of Columbia v. Heller through the lens of post-Roe judicial conservatism, a doctrine that exalts judicial deference to the political branches above the interest in individual liberty. But that vision is incompatible with the sort of judiciary the Framers established, and Wilkinson's prescription does not lay out neutral guidelines for use of the judicial power. In Heller, the Supreme Court acted exactly according to Constitutional design, enforcing a fundamental right against recalcitrant political forces. Not just conservatives, but all Americans, should rejoice in the decision.

Download the full article here. Check out Reason and Reason.tv's Heller coverage here.

Comments

Fluffy|7.9.09 @ 5:01PM|#

Yet as Wilkinson saw it, Heller opened the door to decades of future litigation, disregarded clear legislative preferences, and aggrandized the judiciary at the expense of the other branches and the people-"the same sins," he said, that characterized Roe.

That's not the sin of Roe. The sin of Roe is that the Constitution makes no reference to abortion. It does make reference to arms. This means that claiming that Roe and Heller are the same makes you a poo-poo head.

Wicks Cherrycoke|7.9.09 @ 5:17PM|#

Fluffy beat me to it. It is not "judicial activism" to enforce the express terms of an express limit on governmental power expressed in the Constitution. There is no permissible "legislative preference" to ignore the Bill of Rights.

Mike T|7.9.09 @ 5:20PM|#

If the city of DC had a law requiring you to never speak publicly about religion or carry any religious items on you, I doubt he would have been so quick to call for judicial restraint.

Ben|7.9.09 @ 5:57PM|#

The 2nd says the right to keep and bear arms shall not be infringed. The constitution is the authorizing document for all federal activities. Washington is a wholly federal enclave. Therefore, applicability is 100% solid.

The Washington law infringed.

Law is unconstitutional. Therefore, illegal and unauthorized. End of legitimate story, end of legitimate role of SCOTUS.

The only thing wrong with this picture is there is no punishment for the Washington lawmakers who violated the constitution. That should be fixed.

Scalia, as usual, spends 99.99% of his time writing bullshit; and the government, by which I mean the legislature, the 9 members of SCOTUS, and the president, are radically out of control, which is to say they are not acting in accordance with the document that authorizes them to act - the constitution.

As long as this circumstance continues to persist, you can continue to expect nonsense like Heller to keep coming. Sophist, needle-threading, self (lawyer) serving garbage. At best.

|7.9.09 @ 6:50PM|#

Gura claims that "In Heller, the Supreme Court acted exactly according to Constitutional design."

No, it did not. If Gura's statement was true, then Scalia, writing for the majority, would not have asserted that one's right to keep and bear arms is not absolute.

|7.9.09 @ 7:23PM|#

Gura may have argued Heller, but he litigated that case as part of a team effort--the Institute for Justice's Clark Neily actually conceived of that case originally (with colleage Steve Simpson) and litigated it alongside Gura with significant effort; and the litigation was only possible because of Bob Levy, of Cato and IJ.

So for whatever it's worth, and however "brilliant" you may consider Gura, he did not single-handedly "win" Heller. Neily and Levy deserve a bit of recognition as well.

libertymike -- I'm not sure I understand your point about Scalia's assertion. Are you suggesting that the right to keep and bear arms, in order to be consistent with Constitutional design, must be "absolute"? If so, then is it your opinion that all other rights recognized in the Bill of Rights must be "absolute" in order to be consistent with constitutional design? Because that's a pretty novel argument that would, for example, do away with all defamation law (which limits your right to free speech).

|7.9.09 @ 7:39PM|#

Jen-

First, on Gura, I recall listening to an NPR interview of him several days after Heller was decided. IIRC, Gura was far from an absolutist in his repsonses to questions regarding the reach of Heller. He specifically asseverated that the second amendment does not give one, against whom an ex parte temporary restraining order had been issued, the right to keep and bear arms. Not the most euphonious of words to the ears of this anarcho-free enterprise-individualist.

As to absolutism, yes. I do not see any exceptions for domestic violence or insanity or felons or public safety.

As for overall design, yes. The Bill of Rights is not The Bill of Admonitions. Justice Black often made that point.

|7.9.09 @ 7:42PM|#

BTW, Justice Black was well aware of the defamation connundrum. Nevertheless, he chose absolutism over "nuance."

|7.10.09 @ 9:47AM|#

The reason for the Bill of Rights was that the founders wanted some issues placed beyond the reach of due process. At the time that the Constitution was adopted it was perfectly legal for U.S. Citizens to own cannon, mortars, and in fact, men-o-war. (battle-ships) A 12-pound Napoleon loaded with grape-shot was the assault weapon of the day.

The 4th and 5th Amendment have specific exceptions, fore example and the 2nd does not. Therefor no exceptions were intended. And no, it is NOT a living document. It is a straight-jacket for the Federal Gov't. If you don't like what it says, there is a defined process to change it.

xqqme|7.10.09 @ 11:14AM|#

IMAO, the real problem with SCOTUS is that they have constrained themselves to ruling on very tiny nuanced segments of issues while the Legislative Branch is using a fire-hose to drown our rights. They also constrain ThePeople by their narrow interpretation of "standing"... We, The People, have a Consitutional RIGHT to Petition for Redress of Grievance, yet SCOTUS and the lower courts most often refuse to acknowledge that Right.

|7.10.09 @ 11:16AM|#

The argument about "absolute rights" is somewhat misplaced -- there is no such thing from a purist perspective. Even the rights to life or liberty may be abrogated after due process for actual crimes committed.

On the other hand a fundamental right may NOT be abridged on mere supposition, especially not due to the bad behavior of others or to mere suspicion that the right will be abused at some unknown time in the future by some unknown part.

Most of the so-called exceptions to free speech are NOT actually such examples, e.g., "shouting fire in a theatre" is not forbidden; it is not subject to prior restraint. In fact, it might not only be allowed but at times lauded or even applauded. If "Fire!" is shouted by a the commander of the firing squad or by a patron who notices an actual fire.

Abusing the speech right in an attempt to harm others by causing panic is however punishable, not for the 'speech' per se, but for the bad act of causing panic and harm.

No gun control law can even be shown to work, so clearly there are NO "reasonable" gun control laws however.

None of the CDC, DoJ, nor the National Academy of Science has been able to identify any (ANY!) gun control law which can be shown to reduce any (ANY!) of murder, violent crime, suicides nor accidents.

This includes even the 'reasonable sounding' NICS/Brady background check -- in fact, less than 100 criminals are prosecuted each year for Brady/NICS violations -- and the vast majority of these are because the authorities needed to arrest or prosecute a criminal but can't make the real charge stick, or as a "predicate felony" for a conspiracy or RICO charge.

Thus, proving that the background checks are both unnecessary and not even enforced on criminals.

|7.10.09 @ 11:58AM|#

I verbally posed the following question to Levy after the decision:

"Black's Law Dictionary, 6th Ed., defines the word "License" as "Permission to do that which would otherwise be illegal." It necessarily follows that anything requiring a license must be made illegal prior to that requirement. Since in oral argument your side stated that you had no problem with licensing schemes, the net result of your "win" was an incongruous situation where a citizen is declared to have a Constitutional right to ask for government permission to do something illegal. Further, if licensing schemes are legitimate to apply to a 2nd Amendment right, why shouldn't they apply to 1st Amendment rights? I understand that you were probably attempting an incremental approach; at what point do you intend to go after gun licensing schemes?"

His response was that he didn't have a problem with licensing schemes and had no intent to go after them because after all, "you can't yell fire in a crowded theater." Quote, unquote.

Following this law-school-impaired argument out to its logical conclusion, it would only be a matter of time before he argued to me that there was a "compelling state interest" in preventing skull crushing by Martha Stewart dinnerware and therefore he would have no problem making dinnerware illegal and requiring a license prior to its acquisition and use. Because you MIGHT yell fire in a crowded theater, possession and use of your vocal cords can be declared illegal, prior to any criminal activity, and require government license.

These guys need to be kidnapped out of the legal profession and deprogrammed like they do with cult members. With friends like Levy and Gura, who needs Sarah Brady? He's making her arguments for her.

The net result of Heller was that citizens have a Constitutional right to ask for government permission to do something illegal (!), flawed public perceptions notwithstanding. When the rubber meets the road, all of the associated dicta isn't worth the paper it's printed on and you can bet that present and future USSC Justices know what the definition of "license" is. Whatever post-Heller successes may be claimed, they can only be claimed through a wink and a nod, contortions of reasoning, error, or cheerleading. While any incremental decrease in government abuse of gun owners may be welcome, wherever licensing schemes persist, gun ownership remains illegal. Whether I have a right to ask for government permission is not the point. Government permission is always conditional on the shifting sands of whatever government thinks it can get away with at the time. "Bring me a shrubbery!"

From a strictly legal standpoint, as opposed to popular though flawed public perception, Heller was only one step above useless. If Levy and Gura understood why this is, and were preparing future challenges to licensing schemes so that they are buried forever, it might be two steps above useless. Clearly that isn't the case. The fact that I, a nobody, seem to be the only person on the pro-gun side pointing this out reflects a pretty sad state of affairs in this country. If my position is privately circulating among gun rights activists and I just didn't get the memo, the memo apparently didn't get to Levy and Gura either. If gun owners want to win, they need to know where they are on the field and how many yards away the opposition's goal posts are.

|7.10.09 @ 12:01PM|#

HerbM is correct on the "absolute" rights argument.

You never have the right to be immunized from the consequences of exercising your rights. The old saying about your right to swing your fist ends at my nose pretty well encapsulates the limits on all rights, even "absolute" rights. Legal consequences, of course, should be imposed only following due process.

Thus, it is not a violation of the 2A to convict someone of murder if they kill with a gun.

Similarly, it is not a violation of the 1A to hold someone liable for the damages they inflict with their speech. Defamation is not a violation of your right to speak, because you have no right to cause damage (narrowly defined) to someone else by speaking. Fraud, really, falls into the same category, as fraud is nearly always accomplished via speech or writing, and even the strictest libertarian supports laws against fraud.

KT|7.10.09 @ 12:05PM|#

It's only judicial activism when you don't agree with the decision.