"Activism" and the Second Amendment

I. The problem of “activism”

“Activist” is a word often used to denote a “liberal” judge. It is associated with expanding constitutional rights and broadly expanding governmental obligations revolving around protection of those rights. While applied with gusto to describe liberal judges who favor abortion rights and affirmative action, it is often neglected when considering landmark cases involving desegregation and expansion of women’s rights. Whether or not the label has value to begin with, its use as a synonym for (and denunciation of) liberal judges is clearly problematic when considering Second Amendment rights.

II. History of second amendment rights from previous cases

The majority opinion in District of Columbia v. Heller should not be considered anything but activist, despite being written by the conservative originalist, Antonin Scalia. 554 U.S. _ (2008). The Supreme Court never previously recognized a right as broad as the one Scalia identifies.

In United States v. Miller, the court refused to strike down the National Firearms Act, which prohibited transporting sawed-off shotguns in interstate commerce, despite a challenge that it violated a Second Amendment right to keep and bear arms:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. 307 U.S. 174 (1939).

The test then seemed to be whether or not the regulation of firearms had a reasonable relationship to maintaining a well regulated militia. There existed no broad right to ownership of firearms, free from state or national regulation.

In two earlier cases from the 19th century the court also rejected broad interpretations of the Second Amendment. In United States v. Cruikshank, the court found that “bearing arms for a lawful purpose” was not a right protected by the Constitution. 92 U.S. 542, 551 (1876). Its construal of the right protected by the Second Amendment was based on the presumption that the amendment was enacted to empower state and local militias to prevent dominance by a federal standing army. The court, therefore, found that any right protected by the Second Amendment was protected from infringement by the federal government only. It declined to elaborate on the boundaries of the right itself. In Presser v. Illinois, the court upheld a law that prohibited unauthorized associations from training and drilling together as military organizations. 116 U.S. 252 (1886). It once again interpreted the right protected by the Second Amendment within the context of militia service, mentioning that:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. Presser at 266.

It both cases, the ability of the state to regulate firearms is not restricted by the Second Amendment. Neither case purports to create a general, individual right to keep and bear arms. The legislature also seems to have adopted that understanding, enacting laws in 1927 and 1934 regulating delivery and possession of certain firearms.

III. Interpreting the language itself

The language of the Second Amendment itself does not plainly create a broad right to private gun ownership. The Second Amendment reads:

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.

When considering the scope of the right guaranteed by the amendment, it seems critical to first consider its purpose. While Justice Scalia prefers to jump straight to the operative clause, ignoring the preamble, that does not seem to be the natural way of interpreting a text. As Justice Stevens asserts, the preamble identifies the preservation of the militia as the Amendment’s purpose, because it is necessary to guard against the tyranny of a strong federal government. Having recognized its purpose, Stevens narrowly and reasonably interprets the right not to include a right to private ownership of handguns, consistent with past precedent. Scalia, on the other hand, starts with the assumption of a right to possess handguns, and then interprets the prefatory clause and previous case law to not contradict a broader right. His opinion is a clear example of activism.

Scalia’s interpretation is troubling for its attempt to reconcile constitutional forms of gun regulation, such as a ban on automatic weapons or sawed-off shotguns, with the new right to own handguns. It is difficult to make a convincing case that a handgun ban is unconstitutional simply because many Americans own them for self-defense purposes. Since he has not offered a convincing basis for judging the constitutionality of potential regulations, the decision seems as arbitrary as the supposedly constitutional restrictions on automatic weapons. The dissent’s opinions at least have a foundation from which to base a constitutional inquiry into a provision.

IV. Activism is not a useful label

Seeing that the issue is not as clear cut as the majority would like it to be, judicial restraint seems to dictate that the court should interpret the right narrowly. Scalia and the majority, however, intent on expanding the right to gun ownership, struck down a law enacted by the D.C. legislature, banning some, but not all, firearms. While conservatives on the right will castigate liberal judges for being too activist, they embrace the kind of conservative activism seen in Heller. There is also little rancor over civil rights decisions that protected the equality of minorities and women under the Constitution, despite the fact that they must be classified as activist decisions. Rather than use the loaded and confusing term, activist, it would be better to speak clearly and descriptively about the political propensities of judges. Commentators that describe potential court nominees as too activist only do a disservice to the public by casting aspersion on a term that can be applied to both sides, as well as some of the most illustrious decisions in United States history.