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September 9, 2012

"Decisional Minimalism and the Judicial Evaluation of Gun Regulations"

The title of this post is the title of this intriguing looking new piece by Professor Richard Boldt now available via SSRN. Here is the abstract:

In District of Columbia v. Heller, a sharply divided United States Supreme Court held that the Second Amendment to the United States Constitution protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Justice Scalia, writing for the majority, made clear that the Court’s recognition of this right, which it found inconsistent with the District of Columbia’s restriction on the possession of handguns in the home, did not mean that persons have “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Court chose not to delineate “the full scope of the Second Amendment,” and also “declin[ed] to establish a level of scrutiny for evaluating Second Amendment restrictions.” The majority opinion in Heller is significant both for the constitutional right it established and for the questions of scope and operation associated with that right that it left unresolved. Justice Scalia’s choice to write this “narrow” opinion has “unleashed a flood of litigation” in the lower courts, as litigants and judges have confronted the uncertainty purposely left by the Supreme Court majority.

Woollard v. Sheridan, a test case brought in the United States District Court for the District of Maryland by Raymond Woollard and the Second Amendment Foundation, is one of many such cases to be presented in recent months. While Justice Scalia’s Heller decision relies on familiar conservative interpretive methods, including a hard-edged textual analysis and a heavy dose of originalism, in order to find a “core” right of individual citizens to possess guns in their homes for self defense, his further choice to avoid resolving significant questions of scope and operation reflects a different form of conservative constitutional jurisprudence, which professor Cass Sunstein has termed “Burkean minimalism.” To the extent that the Supreme Court embraced Burkean minimalism in Heller, the tradition of balanced handgun regulation in the states generally, and the more particular regulatory practice in Maryland, ought to count significantly in both the determination of the scope of the right and in its operation. The exercise of judicial review under these circumstances should be characterized by a deferential stance toward the sensitive public policy judgments reached decades ago and maintained over the years by officials in the legislative and executive branches of state government. Many lower courts confronting these issues have explicitly or implicitly recognized the essentially conservative nature of this developing jurisprudence, its Burkean incrementalism. The District Court in Woollard chose a more aggressive path, and in that respect misread the important cautionary signals that the Supreme Court majority has provided.

September 9, 2012 at 07:30 PM | Permalink

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Comments

Liberals have been a real hoot about gun control. First, they were all for it, and fought Second Amendment rights tooth-and-nail up to Heller. When they lost Heller, they tried to turn a lemon into lemonade by claiming that, if we absolutely must have gun rights, they should go first and foremost to previously convicted felons (who are apparently always and ever in need of "self defense" a/k/a assassinating the competing crack dealer).

The campaign to make sure that ex-cons could arm themselves was eager and active for several years (on this forum not the least), and proceded mostly by arguing that Heller should be read broadly, its inconvenient dictum about the continuing propriety of the gun ban on felons notwithstanding. But that too turned out to be a flop, and has basically (although very quietly) been given up for dead.

So what we have in the current article is an attempt to turn THAT lemon into lemonade, by arguing that Heller is really, not broad at all, but quite narrow. Because it's narrow, we can more-or-less go right back to the pre-Heller days! Or, to put it in other words, if felons can't have guns post-Heller, then no one else can either.

I think this is called going full circle, but liberals have been going in full circles for years.

Posted by: Bill Otis | Sep 10, 2012 9:36:06 AM

well bill belive it or not! i believe in this statement!

"Or, to put it in other words, if felons can't have guns post-Heller, then no one else can either."

If everyone can't have them except those that can be taken INTO court and proven to have a mental problem. Then NO ONE should have them.

Becasue if EVERYONE can't have them...then they are a PRIVILIAGE! NOT A RIGHT!

Posted by: rodsmith | Sep 10, 2012 5:41:57 PM

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