What Would Have Happened In Heller If Bush Had Nominated Luttig and Wilkinson Instead of Roberts and Alito

Justice Scalia would have written one helluva dissent.


In 2005 and 2006, two vacancies arose on the Supreme Court. President Bush initially picked John Roberts for the O'Connor seat, but then elevated Roberts to the Chief seat after Chief Justice Rehnquist died. (I sometimes dream what would have happened if Rehnquist hung on a few more months, and we got Chief Justice Alito). Bush tapped Harriet Miers for the O'Connor seat. After an outrage, Bush picked old-faithful Sam Alito for that position. Still, we know from The Nine and Supreme Conflict that Bush considered two other Fourth Circuit judges: Judges Luttig and Wilkinson.

It is hard to imagine how the Supreme Court would have proceeded if these two judges were picked instead of Roberts and Alito. It is even tougher to imagine the different leadership styles of Wilkinson and Luttig. Would either of them have played well with Kennedy? It's also difficult to presume stasis. Things change and people change. Indeed, I tend to think that the Chief seat liquifies the backbone of the steeliest occupant. It happened to Rehnquist. It happened to Roberts. I hope it happens to Kagan one day.

Still, it is fun to imagine some counterfactuals. And one particular counterfactual is plausible. D.C. v. Heller (2008) was one of the most significant decisions of the early Roberts Court. At that time, Chief Justice Roberts and Justice Alito had only been on the Court for two full terms. But their votes were essential to the 5-4 majority.

By the time Roberts and Alito arrived at the Supreme Court, Heller was already trickling up the pipeline. (Remember, Alan Gura, Clark Neily, and Bob Levy filed the suit with O'Connor was still on the bench). What would have happened with Wilkinson and Luttig on the Court? We have some grounds for speculation.

First, in 2008 Judge Wilkinson attacked Heller in the Virginia Law Review. He wrote, "The Roe and Heller courts are guilty of the same sins." It is impossible to know whether a Justice Wilkinson would have viewed the case differently. But I am skeptical. I think he would have cast the fifth vote to uphold the D.C. law. There would have been an obsequious defense of judicial restraint.

Second, let's consider Judge Luttig. After he lost his chance at the Supreme Court, he stepped down to become General Counsel at Boeing. From time to time, Luttig would publish an op-ed. Eventually, he got on Twitter and opined on several Trump-related controversies. Luttig had the cachet of a Republican federal judge, so people paid attention to him. But to my knowledge, Luttig never weighed in on the Second Amendment. Until now. Today, he filed an amicus brief supporting New York in NYS Rifle. He was joined by Peter Keisler, Carter Phillips, Stuart Gerson, and host of other people former Republican officeholders.

The brief urges the Court to uphold New York's gun control law:

Amici have an interest in preserving our historical, traditional, and constitutional system of governance regarding the Second Amendment's right to bear arms in public. As history and tradition demonstrate beyond peradventure, legislatures have, since long before the founding and continuously thereafter up to the present day, decided how to strike the delicate balance between the Second Amendment's twin concerns for self-defense and public safety in assessing the permissible restrictions on the public carry of loaded guns.

The brief repeatedly cite Justice Kavanaugh's Heller II dissent. If they could put Brett's face on the cover they would have.

It is possible that Judge Luttig would have supported Heller in 2008, but drew the line at the right to keep and bear arms in the home. In other words, the right exists in the house, and nowhere else. I don't know any Second Amendment supporters who draw that line, but they could exist. If Luttig's views on the Second Amendment mirrored those of Judge Wilkinson, then Heller would have come out very differently. And for all we know, Justice Kennedy may have gone along with it. Justices Scalia and Thomas may have been the only dissenters.

For the past 15 years, many conservatives have regreted that Bush picked Roberts over Luttig. At least with respect to the Second Amendment, Luttig may very well have been worse. Ditto for Wilkinson.

NEXT: Legal Tweet of the Day

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  1. If Trump had ended up killing the Republican Party, it would have been a mercy killing.

  2. It seems we stopped letting Republican Presidents roll us on their Supreme court nominations just in time.

  3. To be honest, Roberts was a “dark horse”, particularly on the Second Amendment. This blog had posts by conspirators saying “we know he’s an originalist, but that’s about it.”

    1. I suspect that’s why he got past Bush. The Bush family has never been particularly good on the 2nd amendment. Ruby Ridge and Waco, for instance? The elder Bush’s fault.

      You want alternate history, suppose Reagan had decided by 1984 that he was popular enough with Republicans that he didn’t need a liberal VP to balance the ticket, and had picked an actual conservative? The Bushes might have remained a local problem for Texans.

      1. Remember when the elder Bush resigned when the NRA called federal agents jack-booted thugs when they acted like jack-booted thugs? It cost him a lot of voters and maybe the election, though Perot didn’t help. Also, Bush Sr. put in that stupid assault weapons ban via the importation ban of them.

        Bush Jr., well, he supported concealed carry in Texas and signed it into law as promised after defeating his opponent. He knew who brought him to the dance, as they say, and kept his fucking nose out of it and let the assault weapons ban expire while saying “he’d sign it if it crossed his desk” while he KNEW without his weighing in on it that it would never appear on his desk TO sign.

        I can do one better, Bork didn’t support the Standard Model of the 2nd Amendment as supporting an individual right.

        1. Heller is a total joke and in fact the underlying rationale was developed in the last 30 years by a man with an over 200 IQ with the goal of creating an individual right to own guns.

          Once again—the outcome of Heller is correct AND responsible (because it is narrow and limited to the home)…but all that was necessary was incorporating Cruikshank.

          1. Well, it’s true that Heller was a total joke. Neither side in that case had upholding the 2nd amendment on their agenda. The minority wanted the right abolished entirely, the majority were content to neuter it.

            When I read where Scalia described Miller as only protecting the right to civilian arms, when Miller had actually held that a felon’s right to own a sawn off shotgun hinged on whether such guns had military utility, I knew he didn’t really care to be right on the law, just to produce a result that wouldn’t offend the wrong people.

            1. Well the 2A is merely a federalism provision…I assume you mean the RKBA which is mentioned in Cruikshank and which most Americans knew we had, and because the 2A contains the phrase RKBA just assumed it is contained in the 2A when it isn’t.

              1. It’s assumed to be contained in the 2nd amendment by anybody who cares what the 2nd amendment actually says.

                1. So upon ratification only citizens in federal territories and DC lived in a free country?? Because Scalia apparently believed the 2A only applied to those individuals upon ratification which is why McDonald was necessary.

                  1. Scalia believed the 2nd amendment only applied to the federal government prior to the 14th amendment, which is not at all the same thing as it only applying to citizens in federal territories and DC. McDonald was necessary to correct the failure to enforce the terms of the 14th amendment in regards to the 2nd amendment.

                    1. Uh, a properly trained unorganized militia, being necessary for the security of a free country, the RKBA shall not be infringed. So which members of the unorganized militia does this particular amendment apply to?? Certainly not the unorganized militia in the several states because Scalia believed McDonald was necessary. So that means the 2A was expressly drafted to protect the unorganized militia in the federal territories and DC…or Scalia screwed up and incorporated it when it was never necessary to incorporate it. But then why did the states initially feel it was necessary to have an amendment in their state constitutions to protect the RKBA when it was already protected by the 2A?? Such a head scratcher. 😉

                    2. If you read Miller, the court in 1939 seems to believe the 2nd Amendment has always been incorporated:

                      “The Constitution as originally adopted granted to the Congress power—’To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.’ U.S.C.A.Const. art. 1, § 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”

                      It wouldn’t make any sense to claim the 2nd amendments purpose was to facilitate arming the militia, yet claim the states could disarm the populace at will, at least until the 14th amendment was ratified.

                    3. You are referring to the Militia Clauses in the body of the Constitution which deal with reforming the state militias that the Framers believed were suboptimal under the AoC. The 2A is a federalism provision crafted to prevent a Lexington and Concord type event by the federal government.

                      If one believes the words in the 2A mean what Scalia asserts they mean then the 2A never needed to be incorporated…or it only applied to citizens in DC and federal territories upon ratification.

                    4. “Uh, a properly trained unorganized militia, being necessary for the security of a free country, the RKBA shall not be infringed. So which members of the unorganized militia does this particular amendment apply to??”

                      I realize this is probably futile, but for the benefit of anybody reading the above: The 2nd amendment specifies that the right is a “right of the People”. NOT “the militia”. So asking which militia it applies to starts off on the wrong foot, deliberately. It represents a decision that you’re not going to interpret the amendment as written, but instead substitute what you’d rather it had said.

                      As the Court noted in Heller, “right of the People” is a phrase that appears several places in the Constitution, and everywhere else it is routinely understood to mean an individual right. And the phrase “the People” occurs many places in the Constitution, and is viewed as a term of art which “refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

                    5. Brett

                      I concur – The RKBA is the operative phrase in the sentence.

                      2A protects two rights
                      1) the right of the people to keep and bear arms , and
                      2) the right to form militia’s for the common defense.

                      The language of 2A does not make either right mutually exclusive.

                      There is substantial historical writing on the individual right along with the right for “common defence”. Defence being a common spelling in the 17th and 18th century

                    6. Bellmore, something is making the comments glitchy. You clearly don’t believe the word “militia” refers to everyone.

                    7. I believe it’s your reasoning, or perhaps reading comprehension that’s glitchy: I expressed no opinion at all about who might be a member of what militia, since that topic is utterly irrelevant to the 2nd amendment, which guarantees a right of the People.

                      You might want it to instead guarantee the militia something, but that’s not the 2nd amendment we actually have.

                    8. Bellless, so you believe McDonald was not necessary??

                  2. Bellless, “unorganized militia” is everyone—that’s “the people”. You clearly don’t believe Scalia’s definition of the word “militia” in the 2A.

        2. Reagan had reined in BATF abuses, and even considered abolishing the agency. Bush took off the choke chain and told them to ‘sic em’. The whole train of abuses that led to the rise of the militia movement occurred on Bush’s watch. Lon Horiuchi killed Vicki Weaver as she held her baby while Bush was President, and got a promotion for it. The BATF’s attack on Waco was planned under Bush, and was destined to be an atrocity, though Reno probably made it worse.

          And, yeah, if a renewal of the AWB had crossed Junior’s desk, he totally would have signed it.

        3. “Remember when the elder Bush resigned when the NRA called federal agents jack-booted thugs when they acted like jack-booted thugs? It cost him a lot of voters and maybe the election, though Perot didn’t help.“

          Bush resigned from the NRA in 1995. And Perot took more votes from Clinton than from Bush.

          1. Right, this got the causality backwards: Bush didn’t lose the election because he attacked the NRA, he attacked the NRA because he lost the election.

            His political ambitions dead, he no longer had any motive to lie to the public about is position on gun control. He’d only ever been a member to fool Republicans into thinking he wasn’t anti-gun.

            1. NRA refused to endorse him prior to the election.

              1. And rightfully so. Everybody knew he was a gun grabber, and he scarcely bothered pretending otherwise once President.

                And yet he demanded the NRA pretend otherwise, and got mad at us for the refusal. As I recall, the only reason he was able to resign his membership is because the NRA leadership had failed to act on a popular member’s petition demanding he be kicked out.

            2. Right, this got the causality backwards: Bush didn’t lose the election because he attacked the NRA, he attacked the NRA because he lost the election.

              There’s that patented Bellmore AssumeBadFaithIsm. Perhaps he attacked the NRA because he disagreed with what they had said?

              1. He attacked them because he had disagreed with them all long, and with the collapse of his political ambitions, no longer had to pretend otherwise.

  4. What if?

    What if Justice McReynolds had been aborted, and the Miller decision had been judged fairly?

  5. John Roberts still sucks though.

  6. The british tried to confiscate guns in boston circa 1771 or 1773.

  7. Learned a new word [peradventure] but “doubt” would have served just as well.

    The excerpt from the brief is just lousy writing, merits aside.

  8. Lots of Republicans, esp those from the 90s hated the 2nd amendment. Reagan hated the 2nd amendment, and help ban a ban on public carry in Ca.

    Luttig is not alone by any means.

    I am not convinced Roberts or Kavanaugh is all that much better.

    1. Rejecting the views of gun nuts does not constitute hating the Second Amendment.

      Carry on, clingers. So far as you betters permit, though, and no further.

      1. Artie says he’s got a little saturday night special in his pocket.

        1. I believe the Constitution (although not necessarily the Second Amendment) entitles an American to possess a reasonable firearm for self-defense in the home. I sense a substantial prospect that the conduct of gun absolutists imperils that right in the context of a predictable backlash against gun nuttery by the American mainstream.

          1. Stevens’ McDonald dissent is the best opinion of the bunch…although at the end I believe he misapplied his own framework because generally liberals are the party expanding liberty interests and freedom while conservatives are tend to side with restrict freedom and perpetuate the status quo.

          2. Where is the “in the home” clause in the Second Amendment?

            Which other fundamental right is a restricted to being exercised in the home?

            1. Even the most regulated militia wouldn’t fit inside a large DC apartment, so if the two are linked at all, bearing arms outside the home is given. (Not arguing against anything in particular, just a random thought)

        2. He’s just happy to see you.

    2. I wouldn’t go so far as to say he hated it, but Reagan certainly didn’t treasure it.

      1. According to Justice Thomas racist laws like Reagan’s racist anti-gun measures were fairly common throughout AmeriKKKa’s history because AmeriKKKa is a racist country…at least according to Justice Thomas.

        1. A lot of racist laws became common during Jim Crow. At least the Brown Court didn’t declare them traditional and presumptively constitutional…

          The unusual thing about gun control is that it’s a Jim Crow law the courts didn’t care to get rid of. Instead of freeing the blacks in the case of gun control, the aim seemed to be to similarly deprive the rest of the population of their rights.

  9. History has proven Wilkinson’s concerns unfounded thanks to the responsible narrow ruling. The Supreme Court will eventually find a right outside the home but pursuant Kavanaugh’s “text and tradition” analysis the right will still be subject to liberal regulation as it always has been outside the home. I think anyone interested in this issue should divorce the RKBA from 2A because the 2A is very clearly a federalism provision and not an outlier of the BoR in which a right was granted directly to citizens in DC and federal territories but not in the states.

    1. …liberal regulation…

      I like that.

  10. Reading Kavanaugh’s dissent now. Wow, not very impressive, if you’re at all familiar with 2nd amendment history or source material.

    Now, I’ll grant that he wasn’t on the Supreme court back then, so he was kind of stuck with the mess Scalia had made. But still, there were some questions screaming to be asked, and he didn’t ask them.

    Like, how can you judge the scope of the 2nd amendment on the basis of state laws dating from a period where the 2nd amendment wasn’t held to be incorporated? Surely you should have judged its meaning by reference to federal laws.

    1. Kavanaugh is on the Supreme Court because Bush called Collins and urged her to support him…so Kavanaugh is a Bush loyalist and you are free to draw whatever conclusions you want with that information.

      1. All of this, of course, is made up.

        1. You people are such ignoramuses.

  11. The legal version of Count Your Blessings?

    At least SCOTUS did not strip us of our right to keep and bear arms.
    At least SCOTUS did not say that Congress can regulate our economic decisions.

    It is all well on good that we console ourselves that a few parchment barriers remain in place, but we ought not forget that the left intends to shred them all no matter how long it takes.

    1. Yep. They will read a whole bunch of stuff in invisible ink to deny those rights.

    2. The Left plut a “host of…former Republican officeholders.”
      I bet if John McCain were still alive, he’d happily sign on to this amicus brief.

  12. DC v. Heller was the case which showed that Scalia was not exaggerating or stretching a point when he called himself an originalist. He was lying outright.

    1. Yup. If he’d actually been an originalist, he wouldn’t have needed to misrepresent the holding in Miller. He called himself a “faint hearted originalist”, but the truth is, being an originalist was just a pose, that he dropped when inconvenient.

  13. We wouldn’t have these twisted discussions if people could just read.
    2A provides the right of the individual to bear arms
    Same with 14A. Laws must be applied equally . Thus AA is unconstitutional

  14. The right to bear arms for self-defense can-should be limited to “in-home” only — based on what? Reliance on ‘police protection’ (as it were), that may or may not be available in densely populated places? I’ve read this post, and then much of the Luttig amicus re New York Rifle, and I can’t help thinking – WTHeck …”The regulators can assure of safety (there’s no right or need for self defense) outside one’s home?” Yikes.

    I’m a woman who’s routinely off-road in places – public places (county, state, and federal public land) — where danger to one’s person is a reality, a tangibile possibilty. I’ve run into cougar and bears, among other predators, over the years so I never go off-road without “self protection” as it were – only a fool would do so “in these parts.” Yet there’s “code” that restricts ‘carry’ — even when we’ve jumped through the hoops (undergone investigation and qualified to hold valid carry permits). I don’t see anything aggressive or dangerous about “bearing arms” outside the house.

    Self protection = self protection, period. Unless ‘the state’ that’s regulating me can guarantee my protection every moment I’m out of my home, why should I be denied the means for self-protection?

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