Supreme Court

When Judicial Restraint Trumps the Second Amendment

Robert Bork, majority rule, and District of Columbia v. Heller


Public Domain

Thirty years ago the U.S. Senate refused to confirm the conservative jurist and legal theorist Robert Bork to the U.S. Supreme Court. As a result of Bork's borking, Anthony Kennedy joined the Court instead.

Writing at the Library of Law & Liberty, Mark Pulliam wonders what might have been had Bork, not Kennedy, made it through. "As a justice, Bork would likely have been a more conservative (but less sarcastic) version of Scalia," Pulliam writes. But there would have been some crucial differences between the two conservatives. For instance, Pulliam argues, Bork might well have disagreed with Scalia on the Second Amendment. That disagreement could have caused the landmark gun rights case District of Columbia v. Heller to have come out the other way.

Here is the heart of Pulliam's case:

Why do I suggest that Bork might have voted differently from Kennedy [in Heller]?As far as I can tell, Bork, who died in 2012, never commented publicly on Heller, but his general approach to constitutional interpretation is that courts should defer to the political branches unless the Constitution clearly puts the subject "off limits" from majoritarian rule. The Second Amendment, with its odd phraseology ("A well regulated Militia, being necessary to the security of a free State"), might have presented Bork with the same difficulty as the Ninth Amendment (which he once compared to an "ink blot") or the Privileges or Immunities Clause of the Fourteenth Amendment, making him reluctant to read into the constitutional text rights that the Framers did not expressly put there.

This is not mere speculation. In Slouching Towards Gomorrah, Bork referred to the language of the Second Amendment as "somewhat ambiguous[]." In the same passage, he stated that "The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical national government." While it is clear that Bork was opposed to gun control on policy grounds, it is not clear that he agreed that the Second Amendment conferred an individual right.

That largely tracks with my own understanding of Bork's jurisprudence. In my book Overruled, I described Bork as a "principled advocate of judicial minimalism," noting that Bork "opposed not only what he saw as the Court's liberal activism in Griswold [v. Connecticut] and Roe [v. Wade], he also rejected what he saw as the conservative activism of Lochner v. New York, the same case denounced by Progressive luminaries such as [Oliver Wendell] Holmes, Felix Frankfurter, and Theodore Roosevelt."

In his 1990 book The Tempting of America, Bork argued that one of the biggest threats facing America was the misguided effort to consistently elevate individual liberty above majority rule. As Bork saw it, that approach was totally backwards. The "first principle" of the American system is not individualism, he insisted, it is majoritarianism. "In wide areas of life," Bork wrote, "majorities are entitled to rule, if they wish, simply because they are majorities."

Bork's majoritarian philosophy has clear implications for the legal battles over gun control. Take D.C. v. Heller, in which the Court struck down Washington's handgun ban. As Bork might have asked, what business do unelected federal judges have sticking their noses into the regulatory consensus reached by the local officials that are directly accountable to Washington's residents? If would-be gun owners don't like what the law says, the Bork-ian argument goes, they should take their complaints to the ballot box, not to the courthouse.

As it happens, that very argument is alive and well in certain conservative legal quarters today. Back in February, conservative Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the 4th Circuit joined the majority of that court in upholding Maryland's ban on "assault weapons" and detachable large-capacity magazines. "It is altogether fair to argue that the assault weapons here should be less regulated," Wilkinson wrote in concurrence, "but that is for the people of Maryland (and the Virginias and the Carolinas) to decide."

Robert Bork may be gone, but his majoritarian judicial philosophy lives on.

Related: When Judicial Activists Switched Sides

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  1. Borkian jurisprudence: Uphold bad laws

    Conservative “activist” jurisprudence: Strike down bad laws

    Prgressive “jurisprudence”: Strike down good laws.

    1. “Strike down good laws”… unless you can re-write them from the bench into bad laws.

  2. And yet again, we see more lazy regurgitation of poor legal scholarship. The phraseology of the 2nd has been parsed thousands of times, but all historical legal scholarship clearly demonstrates in means exactly what it says. Or in todays vernacular, “An armed populace is necessary to maintain a free society, so don’t mess with gun ownership, dumbass”.

    There is no confusion. All there is, is the propaganda spewed from statists and their enablers.

    1. Exactly. The idea that you should refrain from striking down unconstitutional laws because that would be being mean to the legislature and voters who passed them is absurd. And that is all this sort of Borkian nonsense is saying.

  3. Judicial restraint is one of the most misunderstood and misused terms in the English language. People just change the meaning of it to suit their purposes. Letting laws stand in the name of not interfering with the legislative process is not judicial restraint. Judicial restraint should not mean judges refusing to enforce the constitution. Judicial restraint should mean and in my view does mean not torturing the Constitution to find excuses to invalidate laws for the simple reason the judge doesn’t like them. Judicial restraint means a restrained, fixed and reasonable reading of the constitution. It should not mean refusing to invalidate unconstitutional laws and actions taken by the other branches of government.

    In this case the second amendment means what it says. People have a right to keep and bear arms and the government cannot infringe upon that. We can debate about what the drafters of that amendment meant, but the fact that enforcing it means overturning the actions of the legislature should not be a part of that debate.

    1. Solid points.

      The gun grabbers just know they don’t have the support of enough states to change the constitution especially the 2nd Amendment.

      Their only hope is to chip away at it using judicial activism, which is the opposite of judicial restraint.

  4. The Second Amendment, with its odd phraseology (“A well regulated Militia, being necessary to the security of a free State”), might have presented Bork with the same difficulty as the Ninth Amendment (which he once compared to an “ink blot”) or the Privileges or Immunities Clause of the Fourteenth Amendment, making him reluctant to read into the constitutional text rights that the Framers did not expressly put there.
    Damon, come on! One thing the Founders were not known for was odd phraseology in the Constitution. They needed to be succinct and often added multiple important points into a single Clause or Amendment.

    The 2nd Amendment addresses the importance of the properly equipped and trained militia and the right of the People to keep and bear arms which shall not be infringed by the government.

    BTW: The human right to protect oneself and family by weapons was almost left out of the Constitution because it was deemed so inviolate that the Founders would have never imagined that right being threatened. If it was, they had a plan for that- armed overthrow of said government. How could a populace do that if the government could take away weapons?

    1. The grammar Nazi approach to negating the Second Amendment has always been absurd, especially considering the contemporary writings of the people who wrote the Second Amendment.

      These same people who think the Second Amendment says there’s no right for an individual right to bear arms claim the Fourteenth Amendment says the federal government can override state abortion laws.

      1. Or require states to recognize gay marriages even though sodomy was a crime in every state when the amendment was passed.

        1. Lots of things that were eventually struck down on 14th amendment grounds were law when the amendment was passed, and stayed in place for a long time.

          I do think the court got it wrong on gay marriage (should have been an equal protection thing, not privileges and immunities), but that has nothing to do with the state of the law at the time the amendment was passed.

          1. It has everything to do with the state laws. You cannot claim that the amendment was written to grant an activity that was illegal at the time protection.

            The decision was absurd for a number of reasons. But the biggest was the fact that the states have had the exclusive power to define marriage for the entire history of the country. There is no way you can justify reading gay marriage into the constitution.

            And it has resulted in exactly the evisceration of religious freedom that was predicted. And on top of all that, it didn’t even settle the issue or bring the country any peace. We have no moved on the transgender rights and leftists with support and help of many but not all Libertarians are happily shoving that down the country’s throat in the name of “tolerance”. It is just matter of time and fashion before the court decides that women must shower with men in the name of equal protection and tolerance.

  5. making him reluctant to read into the constitutional text rights that the Framers did not expressly put there.

    Which is why I’m glad that asshole never made it to the bench. The Constitution gives the government rights, my rights come from nature. Unless there’s something in the Constitution that gives the government a specific right to infringe my rights, there’s no limit to my rights.

    1. The constitution gives the government power. It specifically restricts that power from violating your rights. The government doesn’t get any rights in the constitution. And you already have your rights. The constitution just makes it clear that the government can’t violate your rights.

  6. If anything the Constitution (and this seems so fucking obvious) does the very opposite of this Bork deference to majorities in that it’s specifically designed to limit and frustrate majorities. It demands supermajorities to change anything. It sets parts of the government against one another. It’s enumerated thus so restricted of the very powers any majority is even allowed to use. The whole thing is a repudiation of majority rules. The language describing our individual rights is large and nonrestrictive in comparison. Our rights are described as sacrosanct. Burn this judicial philosophy with fire.

    1. Telling the government it can’t do something because it exceeds its authority under the constitution is not judicial activism. Judicial activism is reading the constitution in a results-based manner without any reference to any fixed meaning in the document. Judicial activism is also courts requiring the government take actions it otherwise would not. Nothing in the constitution requires the government to do anything other than maybe a few duties of the President and Congress, like passing a budget and giving the state of the union report. The constitution restricts the power of government. And anytime a court starts mandating actions rather than invalidating actions, it has almost certainly overstepped its bounds. But, there is nothing necessarily activist about stopping the government from doing something the court sees as violating the constitution.

    1. Ze minimalism, I love eet! We weesh to exhibit your work at the Museum of Modern Art!

  7. Very Socratic of him. Think he’d have guzzled down a cup of Jonestown Juice if it’d been put to a vote?

  8. The Founders warned about the “tyranny of the majority”, which is why we have a Bill of Rights in the first place. So majoritarianism is certainly not the first principle of American government.

  9. The problem, of course, is that the Ninth Amendment was adopted PRECISELY to prevent the Borkian approach to the Second Amendment (which I happen to think correct) from being used to stifle other gun rights like self-defense and hunting.

    As for the concurrence of Judge Wilkenson, he apparently failed to read Hamilton’s Federalist, #28, which makes clear that the right to keep and bear MILITARY weapons, though much more closely related to State and federal functions, MUST remain in private hands under the respective treason clauses of Maryland and the United States.

    The Constitution is VERY clear on this: It is CONGRESS which has the power to “arm, equip, and discipline the militia,” NOT the State of Maryland. Congressional power IS subject to the Second Amendment’s prohibition against “infringing” the militia, and this was adopted precisely to PREVENT Congress from giving its own troops the machine guns, bazookas, and combat aircraft while reducing the State militias to slings and arrows.

    So, to Judge Wilkenson, I respectfully say, “I understand your philosophy and its underpinning reasons — the Chief Justice, himself, probably would approve — but in this case, you got it wrong (assuming the issue was properly presented to you in the first place — which it probably wasn’t).”

  10. If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarcy. We just need strong statesmen as governors and legislatures to make that stand!

    In writing to William Jarvis, Jefferson said, “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

    The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”

  11. The Constitution is the rules and regs for the federal government. It has little to nothing to do with the Individual American other than to tell the federal government what their duties are (enumerated powers) and what they have sworn to NOT do (the first 10 Amendments).
    In other words, the Constitution “confers” nothing to We The People. No “rights”! It recognizes and tells the government that they can NOT legislate, decree, or “rule” on or about the described “rights”,,, that are inherent in people.

    You’ve got it backwards. The “bill of rights” does not confer or grant We The People jack! It protects US from the political hacks and the money they bow to from harming US. Or, at least that is the intent.
    “These are the chains that bind them”! Hmmm, I wonder what Jefferson meant by that? “The price of Liberty is eternal vigilance”! Hmmm, I wonder what Jefferson meant by that?

    Even more important,,, what do you think it means?

  12. It is somewhat interesting that the people of 1790 America knew exactly what the framers of the Constitution meant when they wrote the 2nd-Amendment (and they demonstrated that knowledge by the manner in which they lived and constituted their militias), but some of the most learned and wise people today haven’t a clue.
    Educated? I think not!

    1. Excellent point. I thought of a way to explain a little history and law to these poorly educated lawyers and politicians.
      The 1788 Constitution included the State Militias in Article 1, Section 8. This was not seen as sufficient protection of te rights of the people , thus a Bill of Rights was demanded by men such as Patrick Henry.
      A small paraphrasing of the Second Amendment makes it clear what was intended…
      A well regulated [ uniformly armed & trained ] militia veing necessary to the security of a free sate?
      well duh
      “The right of the people to keep and bear arms shall not be infringed.”
      The Court has stated many times that THE PEOPLE is always used in the Bill of Rights to indicate individuals.

  13. any years ago after the Senate rejected Judge Bork for the Court he was interviewed on C-SPAN. A caller asked him about the Second Amendment. His answer included a disclaimer, “I’m not an expert on te Second Amendment” and then he went on to say that the right to keep and bear arms was considered to be a right of the States to have a militia. [interviewer was Mr. Lamb]]
    I wrote Judge Bork and told him that until he was an expert he should refrain from making position statements about a subject he was ignorant about since the general public thought he was an expert in everything.
    Scalia got it correct in HELLER but I wish he had been more clear instating that the Court had not reviewed ALL the myriad other gun laws in the Nation and until such time those laws could be enforced whether they were ultimately found to be unconstitutional.
    HELLER did not declare that gun free school zones were constitutional. In fact the Court had previously declared that GFSZ were unconstitutional in the Lopez case. Part of the reason was that Congress did not have a federal jurisdiction. Congress wrote a few words and created a “federal case” about schools and guns and passed the same unconstitutional law again. Title 18?922(q) has the justification as well as the law. The Court has never reviewed the new law and the reasons to see if the GFSZ law and reasons are constitutional.

  14. The intent of the 2nd amendment is crystal clear if you read the commentaries of those who drafted the Constitution such as Noah Webster, George Mason, James Madison and Thomas Jefferson. Hamilton in Federalist #29 concedes the only check on government is the right of the people to keep and bear arms. The term “militia” is not ambiguous when considered in the context when the Constitution was written. There was no National Guard and reading the words of the Founders, it is hard to claim they would not consider the Guard as nothing more than another part of the larger standing US military. They would not see it as a body to be used to defend against the government if it was ever needed since its very structure makes that impossible. The best argument that the National Guard is NOT a militia is the fact they have been deployed to fight in Afghanistan and Iraq. A militia only defends the homeland and never is used outside the country. That one fact negates the definition of militia used by the ant-gun crowd.

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