Heller Revisited

Four months after the fact, the Supreme Court’s historic District of Columbia v. Heller decision continues to receive national media attention, and some recent developments have cast new light on Justice Antonin Scalia’s controversial remaking of the Second Amendment.

Recently, the New York Times highlighted criticisms of Justice Scalia’s 5-4 majority opinion by markedly conservative jurists. Two federal appeals court judges who were appointed to the bench by President Ronald Reagan, J. Harvie Wilkinson and Richard Posner, have described the opinion as judicial activism akin to the Court’s 1973 ruling in the case of Roe v. Wade.

Judge Wilkinson—who was recently considered for nomination to the Supreme Court—argues in an article entitled “Of Guns, Abortion, and the Unraveling Rule of Law” that the majority opinion in Heller “reads an ambiguous constitutional provision as creating a substantive right that the Court had never acknowledged in the more than two hundred years since the amendment’s enactment. The majority then used that same right to strike down a law passed by elected officials acting, rightly or wrongly, to preserve the safety of the citizenry.” In Wilkinson’s judgment, “it is patently wrong to have an issue that will not only affect people’s lives, but could literally cost them their lives, decided by courts that are not accountable to them.”

Wilkinson recalls that it was Justice Scalia himself who lamented the Court’s treatment of the abortion issue in the case of Planned Parenthood of Southeastern Pennsylvania v. Casey, stating that, “by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.”

Judge Posner, described as “perhaps the most influential judge not on the Supreme Court,” recently wrote in the The New Republic that “the text of the [Second] amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or any other sport, or for the defense of person or property.” Posner argues that “the popularity of the decision and its prompt endorsement by both presidential candidates attests to the political power of the ‘gun lobby,’” and predicts that “the only certain effect of the Heller decision…will be to increase litigation over gun ownership.”

On another front, the plaintiff in the Heller case, security guard Dick Heller, recently emerged from relative obscurity to testify before the D.C. Council on the subject of the District’s gun laws. His public testimony could objectively be characterized as bizarre. Heller—the man who convinced the Supreme Court to overturn a gun control law on Second Amendment grounds for the first time in history—argued that gun owners should not have to undergo background checks or “store [firearms] securely & safely around minors.” He further stated that armed citizens in the District should be the first line of defense against the “large terrorist sleeper army” inside the United States.

Finally, the Heller ruling has even emerged in popular culture and was featured in a recent episode of the ABC series “Boston Legal.” The episode focuses on the trial of lawyer Denny Crane (played by William Shatner), who has been indicted for shooting a mugger with an illegally concealed handgun. Arguing for the defense, attorney Jerry Espenson exclaims, “I mean, no other Supreme Court in our two hundred year history could find a right to bear arms for non-military purposes. But suddenly! Presto! Thank God for the Big Five, I tell ya’! ‘A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.’ It turns out that the trick is to just ignore the first thirteen words!”

Crane later takes the stand and puts it in even simpler terms: “You don't have to be a legal genius to know that if you have a president in office who likes guns, and a vice president who likes to hunt lawyers and quail and a Supreme Court Justice who hunts with him, you're going to have a Constitutional right to shoot bad guys in the knee!”

The October 6 episode, entitled “Dances with Wolves,” can be viewed in its entirety here.