WITH THE SECOND AMENDMENT IN ITS SIGHTS, WILL THE ROBERTS COURT, AS USUAL, DITCH "JUDICIAL CONSERVATISM" IN FAVOR OF THE POLITICAL KIND?

By Jon Dodson
DWT Constitutional Consultant

Abortion. Affirmative action. School prayer. Gun control. All examples of divisive constitutional issues which typically pit hard-line reactionaries against persons with more nuanced viewpoints.

The Supreme Court, for better or worse, has played a pivotal role on most of these issues. In so doing, it has unwittingly provoked political reactions, creating a bounty of campaign issues for right-wingers over the years. Ultimately these issues galvanized social conservatives, paving the way for the ascendance of the wingnut movement. The obvious example of the Court's role in this regard is now the country's most endangered precedent: Roe v. Wade.

ROE: A MESSY PRECEDENT, BUT STILL A PRECEDENT

I'll admit, from a philosophical standpoint there is a legitimate argument that the Warren Court overstepped its bounds in some of its decisions, notwithstanding their sensibility and progressiveness. (In the matter of Roe v. Wade--actually a product of the Burger Court, which decided it by a 7-2 majority that included Earl Warren's Republican successor as chief justice, Warren Burger--many law students leave their constitutional law class shocked and dismayed to discover that the opinion really was one of the most reckless pieces of legal reasoning ever to come down from the Supreme Court, laying out a menu of potential policy justifications completely unhinged to any specific constitutional right.)

But whatever its questionable merits as a matter of constitutional law, the occasional overzealous decision has the authority of precedent and is bolstered over time by the mandate of its consistent application. And whatever its validity as a philosophy, the "judicial conservative" viewpoint is naught but a subterfuge when it's only selectively espoused and applied and its fair-weather proponents are merely cynical, opportunistic politicians.

This intellectual dishonesty is exposed in cases where the conservative judicial philosophies clash with conservative political objectives. Typically in these cases politically "conservative" Supreme Court justices have abandoned their judicial "conservatism."

A "CONSERVATIVE" COURT TARGETS THE SECOND AMENDMENT

One of the most telling cases this term will be District of Columbia v. Heller. It pits respect for precedent, and the intent of the constitutional framers (essential aspects of the strict constructionist and originalist judicial philosophies), against the NRA's pipe dream--a vast, unprecedented expansion of the right to bear arms.

Moreover, unlike with most divisive constitutional issues, the Court has played no role in expanding or diminishing the scope of the Second Amendment until now. The Roberts Court can't pretend that it's merely "correcting" an "activist" decision from the Warren court.

The issue, as phrased by the Court, is whether D.C.'s handgun ban "violates the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes."

Since our Nation's founding, the Second Amendment was understood to encapsule a collective right, a right to bear arms explicitly tied to the maintenance of state militias, and historically bound to the revolutionary sentiment that a people should be allowed to "alter or abolish" their government. However, in 2007, the D.C. Court of Appeals became the first federal appeals court to ever strike down a firearm ban based on the Second Amendment. It was only the second time a court interpreted the right to bear arms as an individual rather than a group right.

The Supreme Court will review the decision, agreeing to review the scope of the Second Amendment for the first time since 1939. In that case, United States v. Miller, the Court held that the Second Amendment protects only the ownership of weapons appropriate for use in an organized militia, and that sawed-off shotguns don't qualify.

AS JUSTICE KENNEDY GOES . . . ?

The Supreme Court has consistently refused to revisit this issue, but the Roberts Court hasn't gotten its hands on a Second Amendment case until now. What will it do?

On the one hand, a federal appeals court has never before ignored the Miller precedent in striking down a gun law. So, hopefully, the Supreme Court merely intends to reinforce the Miller precedent, and admonish the D.C. Court of Appeals to stand down.

On the other hand, the Roberts Court has already displayed a breathtaking disrespect for precedent, and for "judicial conservatism." It may very well endorse the D.C. Circuit's interpretation, expanding the Second Amendment for the first time in history and striking down the D.C. handgun ban for good. Because easier access to guns is just what our blighted capital needs.

Will this be another case of conservative judicial activism? Another betrayal of the purportedly "objective" philosophy motivating the likes of Jjustices Scalia, Thomas, and Roberts--and underlying their criticisms of "activist" court precedents such as Roe?

Most likely, the decision will come down to the views of Justice Kennedy, as usual. Perhaps he will overturn the D.C. Circuit, and uphold the handgun ban. Precedent, judicial conservatism, policy rationales, and an international consensus on gun control dictate that he do so.

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