Reagan Jurist Decries ‘Judicial Subjectivity' of the Supreme Court’s Gun Ruling

In a posting on August 27, 2008, I documented how the five justices who found in the U.S. Constitution’s 2nd Amendment an individual right to bear arms had really engaged in a blatant exercise in conservative judicial activism.

I showed that all nine justices had presented evidence that, out of several precedents they knew about and could have placed in the Constitution, “what the Framers chose to codify was not some cosmic right to bear arms to defend self and property, but a right to keep and bear arms in order to be militia-ready, to be available if called to active militia duty.”

Rather than spell out what this right means in a post-militia age, the majority concocted a new individual right to kill, while the dissenters denied its legal and logical legitimacy.

No one has offered any comment on my analysis. But it did my heart good to learn from a George Will column in Sunday’s Washington Post that a conservative judge on the 4th U.S. Circuit Court of Appeals, appointed by Ronald Reagan in 1984, also sees judicial activism in the gun-right decision, albeit for reasons I think are less germane.

Will says that J. Harvie Wilkinson, “writing for the Virginia Law Review,” charges that the majority’s behavior in District of Columbia v. Heller showed that “orginalism” is in fact no obstacle to “judicial subjectivity.” His take is that orginalism alone is not sufficient to ensure conservative judicial restraint. As Will summarizes it: “when conscientious people come to different conclusions about the Framers’ intentions, originalist judges must resolve the conflict by voting their preferences.”

The Virginia Law Review website says Wilkinson’s article has not been published yet. The site has an abstract of Wilkinson’s essay, but the Review does not plan to publish it until the April 2009 edition. Thus I rely on Will’s column for the some of the content of Wilkinson’s critique.

According to Will, Wilkinson insists that all of the justices, by referring to original documents that contained conflicting positions, in fact had originalism on their sides. Given that, it was not at all conservative for the majority to impose the position they derived from their preferred sources as the sole meaning of the 2nd Amendment. This is what bothers Wilkinson most about the majority position.

In contrast to the majority’s tactics, Wilkinson argues that a truly conservative approach would have given legislatures broad latitude to decide which of the original positions make most sense in their specific jurisdictions: “Wilkinson says that when a right's definition is debatable, generous judicial deference should be accorded to legislative judgments--particularly those of the states, which should enjoy constitutional space to function as laboratories for testing policy variations.”

In other words, although Wilkinson joins me in seeing unjustified conservative judicial activism in the Supreme Court’s decision, he couches it differently and proposes a different path he thinks the justices should have followed.

I did not conclude in my August 27th analysis that the justices were faced with conflicting original positions they needed to resolve. I said, rather, that the conflicting original positions reflected the variety of precedents from which the Framers could choose. However, it was the Framers themselves who resolved those conflicting precedents. Purposefully and explicitly they excluded several proposed versions of a right to bear arms and instead based the right on the responsibility of the states to assemble militias completely independent of the national military. All of the opinions, majority and dissenting, agreed: what the Framers codified was a right to bear arms in order to be militia-ready.

This still leaves ambiguity for legislators to resolve. But it’s not the ambiguity that Wilkinson sees. The ambiguity is how the flesh out the right to be militia-ready in a modern society where there are no longer state militias and where their closest lineal descendants, each state’s National Guard, are not nearly as independent of the federal military as the militias were supposed to be.

What the Court needed to do was to give state and local legislative bodies guidance on what the 2nd Amendment’s right to be militia-ready permits and precludes in our post-militia society. What does the right to be militia-ready tell us about possession and use of firearms for target-practice, hunting, or defense of self, family and property?

That is the ruling the Court should have made. That is what remained unaddressed by the conservatives’ judicial activism and the dissenters' attempt to block it. And that is the decision the Court is still going to have to make some day down the road, when the Court revisits the shortcomings of its new right to kill.