The Roberts Court: The Struggle for the Constitution (27 page)

The Kennedy-Alito debate about how to interpret the Eighth
Amendment in particular, and the Constitution in general, mirrored the forthcoming debate over the Second Amendment: original public meaning versus application of values in the Constitution to changing times.

With the announcement of the decision in the child rape death penalty case, the Court was only one day away from the end of the 2007–08 term, and what a difference one term can make. Supreme Court terms are defined as much by what is not on the docket as by what is. Unlike the highly divisive preceding term, the current session had no major race, abortion, speech, or religion cases. Fewer cases were ending in 5–4 splits (17 percent of all decisions as opposed to 33 percent in the prior term). And the 5–4 splits were not the lopsided victories for the Court’s conservatives of a year ago.

But on June 26, the term’s final day, only one decision of the Roberts Court was foremost on the minds of a full and intensely focused audience. Three cases were outstanding. The justices read summaries of their decisions in order of seniority, from the least senior to the most senior. Roberts announced that Justice Alito, the Court’s junior justice, had the decision in
Davis v. Federal Election Commission
.

Davis
was a challenge to the so-called millionaire’s amendment in the McCain-Feingold campaign finance reform act, more formally known as the Bipartisan Campaign Reform Act of 2002. When a self-financing candidate for Congress spent personal funds in excess of $350,000, the amendment permitted the non-self-financing opponent to receive triple the amount of personal contributions allowed by law and to accept coordinated party contributions. The self-financing candidate still had to abide by the law’s contribution limits. Jack Davis intended to spend $1 million of his own money on his congressional campaign in New York and sued to stop the FEC from enforcing the millionaire’s amendment, claiming a violation of the First Amendment.

Alito, joined by Roberts, Scalia, Kennedy, and Thomas, agreed with Davis.

Davis
is one of the stepping stones laid by the Roberts Court in its
movement toward campaign finance deregulation. The conservative majority had taken its first step in the previous term in
Wisconsin Right to Life v. Federal Election Commission
. The great divide within the Court over the First Amendment and campaign financing would explode into the public’s consciousness with the Court’s 2010 decision in
Citizens United
.

•  •  •

The soft outlines of the still-young Roberts Court were beginning to come into focus with the latest rulings. The Roberts Court’s conservative majority, in a fundamental disagreement with the liberal justices on the Fourteenth Amendment’s equal protection clause, had shown impatience with and a desire to end racial classifications, whether in redistricting by legislatures or in public school efforts to preserve or create diversity in their classrooms. On the scope of the First Amendment’s speech protections, it was moving to end or restrict campaign finance regulations at the federal and state levels—a movement that would culminate in the blockbuster
Citizens United
decision.

Roberts announced that Justice Scalia had the second of three final cases in the term, a complicated energy contract dispute between utility companies and wholesale energy suppliers. And finally, Roberts said that Scalia also had the Court’s opinion in
District of Columbia v. Heller
.

Alan Gura, counsel to Dick Heller, was not taking any chance on missing the announcement. He had been going to the courtroom on decision days for the past week. “I got to listen to some great decisions about ERISA [pension law] and Indian trusts,” he chuckled. He and his colleagues, Clark Neily and Bob Levy, were sitting in the front row of the lawyers’ section in the courtroom, which is directly behind the main table for lawyers arguing cases. Solicitor General Clement and lawyers from his office, as is traditional, were seated at the main counsel table.

“When Chief Justice Roberts said Justice Scalia has the opinion in No. 08-290, we knew,” said Neily. “If you were confident we were going to win, which we were, and you had to pick which justice was most
likely to write it, it seemed likely it would be the chief justice because it would be his to assign and maybe he would have assigned it to himself because it seems like a pretty plum opinion, or maybe Justice Scalia because it’s maybe the single greatest opportunity to roll out his version of originalism in the context of a really meaningful constitutional case that there has ever been.”

Scalia, summarizing his 64-page majority opinion, said the Second Amendment protects an individual right to possess a firearm unconnected to service in a militia, and to use that firearm for lawful purposes, such as self-defense in the home. The preamble—“A well regulated Militia, being necessary to the security of a free State”—states a purpose but does not limit or expand the scope of the operative clause, and that clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Read together, he said, the two clauses essentially say, “Since we need a people’s militia, the people will not be deprived of the right to keep and bear arms.”

The majority’s interpretation, he said, is confirmed by analogous arms-bearing provisions in state constitutions adopted before and after the Second Amendment, and by legal scholars, courts, and legislators from ratification of the amendment through the late nineteenth century. The Court’s 1939 decision in
United States v. Miller
is not to the contrary, he insisted, but stands only for the type of weapon not eligible for Second Amendment protection.

Scalia emphasized that the Second Amendment was not unlimited. “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,” he said. As the
Miller
decision stated, the sort of weapons protected, he added, were those in “common use at the time.” That limitation, he said, is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

And yet, turning to the District’s handgun ban, Scalia said, “Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred firearm in the nation to ‘keep and use for protection of one’s home and family’ would fail constitutional muster.” And the District’s regulation that firearms in the home be kept inoperable, he added, “makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.”

Stevens read from the bench summaries of his 46-page dissent and also Breyer’s 44-page dissent. Stevens went toe-to-toe with Scalia on the meaning of the words in the two clauses. He focused primarily on the immediate history surrounding the drafting and ratification of the amendment and analyzed sources contemporaneous with the amendment.

Scalia had presumed a preexisting right, and his historical analysis focused primarily on sources in periods much earlier and later than the events surrounding the amendment’s drafting, debate, and ratification.

Scalia’s written opinion for the majority was odd in one important respect. He actually began his analysis of the Second Amendment with the amendment’s second clause—the operative clause—and not the opening clause—the preamble. He explained that he would come back later in the opinion to show how the preamble worked with his interpretation of the operative clause. That approach, which was the opposite of the general approach of the Court to interpreting the text, seemed to suggest that he did not have a strong argument for reconciling the two clauses.

But Scalia’s odd approach also may have stemmed from a highly unusual step taken by the dissenters in the drafting process. So confident were the dissenters of their view of the history of the Second Amendment that Stevens, hoping to persuade someone in the majority to change his vote, circulated his draft dissent before Scalia circulated his draft majority opinion.

That effort, of course, failed. However, Scalia may have started with
the operative clause because the draft dissent revealed the weakness of the majority’s view of the preamble.

Not surprisingly, Justice Stevens in his dissent criticized Scalia for beginning his analysis with the amendment’s operative clause, which, he wrote, was not how the Court ordinarily reads text. “Perhaps the Court’s approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow.” The text, he said, makes no mention of any non-military use of firearms. “If the text were ambiguous, which I don’t think it is, the clear statement of purpose in the preamble would provide the basis for resolving any ambiguity.”

The amendment’s principal draftsman, James Madison—“not those who wrote generations later”—and those who participated in the amendment’s enactment, considered and rejected proposals in state constitutions that would have protected an individual right, he added, and that is a “fair analysis of original intent.” The majority also misinterpreted the 1939
Miller
decision, which had been relied on by hundreds of federal judges and countless legislators, to mean that the amendment protects a militia-based right, according to Stevens.

“The regulation of civilian use of firearms raises critically important questions of public policy,” he said, which until today’s decision had been resolved by the political branches of government. “This is just the first in a series of decisions the Court will be required to make to define the dimensions of the newly discovered right. The Court should stay out of this political thicket. Adherence to a policy of judicial restraint would be far wiser than the bold decision announced today.”

In his separate dissent, Justice Breyer wrote that he agreed with Stevens that the amendment protected militia-related, not self-defense-related interests. Assuming for purposes of his dissent that self-defense was the amendment’s purpose, Breyer argued the District’s law was consistent with the amendment because the regulation, “which focuses upon the presence of handguns in high-crime urban areas, represents a permissible response to a serious, indeed life-threatening, problem.”

Breyer argued that in examining the constitutionality of gun regulations,
the Court should make an “interest-balancing” inquiry, with interests protected by the amendment on one side, the government’s public safety concerns on the other, and “the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter.” In conducting that inquiry, Breyer said he found “substantial evidence” to support the District’s judgment and little evidence of a burden on interests protected by the amendment.

Breyer, noting the majority had derided his approach as “judge-empowering,” countered that although his approach requires judgment, its very nature—“requiring careful identification of the relevant interests and evaluating the law’s effect upon them”—limits the judge’s choices and reveals the judge’s reasoning for all to see. He considered his approach more transparent than the majority’s methodology.

“Also important, the majority’s decision threatens severely to limit the ability of more knowledgeable, democratically elected officials to deal with gun-related problems,” wrote Breyer. “The majority says that it leaves the District ‘a variety of tools for combating’ such problems. It fails to list even one seemingly adequate replacement for the law it strikes down. I can understand how reasonable individuals can disagree about the merits of strict gun control as a crime-control measure, even in a totally urbanized area. But I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem and which, in the future, could well face environmental or other emergencies that threaten the breakdown of law and order.”

The Scalia and Breyer opinions laid bare once again the great divide in their constitutional interpretation: the originalist versus the pragmatist.

During that afternoon in his chambers in July 2011, Scalia explained that he considered the
Heller
decision the greatest vindication of originalism “because not only did the majority apply an originalist approach, the dissenters foolishly tried to do the same thing. I thought we just utterly destroyed Justice Stevens’s attempt to display the contrary as an
originalist matter.” But revealing a strong strain of cynicism, he added: “We won’t apply that reasoning in the next case. Very disappointing.”

Is Stevens an “originalist”? The term is somewhat misleading, he believes. Some people think it is the answer to every question, he said. He, like many judges, always looks to the original evidence, but believes it is not necessarily controlling.

Both Scalia and Stevens were strikingly confident in their views of the scope of the Second Amendment and the evidence they marshaled to support those views, even though historians themselves are divided on the meaning. Where the evidence is in equipoise, Stevens would say there are two powerful tiebreakers: deference to legislators responsible for policy decisions in this area and
stare decisis
. Scalia, however, sees no equipoise. “As far as being demonstrably correct on the history in
Heller
, I don’t even think it’s a debate,” he said.

For Scalia, the decision was not only the triumph of his originalist approach to the Constitution, but it also quieted skeptics who had said he was unable to forge majorities because of that approach. He not only had five votes; none of the five wrote separately to narrow or question any part of his ruling.

Advocates of originalism hailed the first part of Scalia’s opinion dealing with the threshold issue of what kind of right the Second Amendment protects. It was a true originalist opinion, they claimed, perhaps the most important and faithful exercise of that approach in modern history.