This week the Supreme Court will hear arguments in the most important gun-control case in 69 years. And almost lost amid all the political posturing on both sides of the case about the constitutional contours of the "right to bear arms" is the quiet, crucial fact that the high court is about to step into a cultural conflict for the first time in 69 years.
Think about it: abortion, homosexuality, affirmative action, separation of church and state, the death penalty. The court has waded into almost every hot-button social issue dividing this country.
And both conservatives and liberals suspect that in doing so, the high court has messed things up. Its most acerbic conservative, Justice Antonin Scalia, says the court should not conduct itself like an unelected superlegislature. It's not for the court to invent new rights, it's for the people: "You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it."
A growing number of legal thinkers, including the University of Chicago's Cass Sunstein, agree that judicial "minimalism" is preferable to resolving sprawling social problems with broad moral judgments. Many of the country's pre-eminent liberal scholars believe that matters as important as abortion and segregation were better left up to the democratically elected branches; that the broad brushstrokes of the Warren Court launched a backlash still being felt today.
With District of Columbia v. Heller, these court critics may have fished their wish. The case tests the constitutionality of D.C.'s sweeping gun ban prohibiting handgun possession at home unless guns were registered before 1976, and requiring all guns—including rifles and shotguns—to be unloaded and either disassembled or bound by a trigger lock. Last year, by a 2-1 vote, a federal appeals court struck down the ban, claiming that the Second Amendment confers upon "the people" an individual right to bear arms, rather than a collective right to arm its militias.
Still, the most dramatic aspect of Heller may well be that the last time the Supreme Court issued a major proclamation on the right to bear arms, it was 1939 and the criminals in question sported fedoras and drove Packards. That makes this case a natural experiment in what happens when the Supreme Court butts out. If the gun fight is any indication, it's not clear democracy moves to the driver's seat when the court lets go of the wheel.
The Supreme Court determined in 1939 in U.S. v. Miller that an individual right to a gun had no "reasonable relationship to the preservation or efficiency of a well regulated militia," and thus the Second Amendment did not confer individual rights to guns. The court followed this with many decades of constitutional radio silence on the subject. When faced with opportunities to revisit Miller, the court either upheld it or declined to hear appeals that would raise it. In the wake of that silence, 10 of the 12 federal appeals courts also sided with this "collective rights" view of the Second Amendment.
But in the face of the courts' quiet resistance, a well-funded and powerful lobby group, the National Rifle Association, forcefully and effectively pushed the claim that the Second Amendment confers an individual right to bear arms. Four million-plus-members strong, the group has handed out millions of dollars and is credited with winning the 2000 election for George W. Bush. Whatever financial or political clout it has exhibited pales next to its legal influence: polls show that while a slight majority of Americans would support stricter gun laws, about 75 percent of them believe the Constitution confers a personal right to own a gun.
The vacuum created by the courts was filled not only with special-interest groups but, more recently, with legal academics intent on preserving strong individual rights under the Constitution. And according to Robert Spitzer, a political scientist at SUNY Cortland and author of "The Politics of Gun Control" (2003), the failure of the Supreme Court to revisit the question of the Second Amendment for decades in fact created "the allegation of some legal pathology; that the court was avoiding it or embarrassed by it." That embarrassment prompted an important liberal thinker, Prof. Sanford Levinson of the University of Texas, to pen a 1989 law-review article in favor of a "strong reading" for the individual-rights theory of the Second Amendment. Other prominent liberals and libertarians have followed, many less interested in reshaping modern gun-control policy than insider constitutional housekeeping: you can't be for strong individual constitutional rights, and treat the Second Amendment like elevator music. But when Robert Levy, a senior fellow at the Cato Institute and the engine behind the Heller lawsuit, determined the time was ripe to challenge the D.C. gun ban in court, one of the factors motivating him was this intellectual shift in the liberal academy.
So long overdue is Supreme Court scrutiny in Heller that the Bush administration has staked out one position, while Dick Cheney has taken another (rumors surfaced last week that the administration might change its position again at oral argument). But the more interesting question is whether, absent judicial pronouncements, large constitutional matters will be thrashed out by the people and the democratic process or by well-funded interest groups and well-meaning academics.