Private: Hyper-Originalism and Judicial Legitimacy from Heller to Highland Park

by William G. Merkel, Associate Professor of Law, Charleston School of Law

This week, the Supreme Court declined to hear the case of Friedman v. Highland Park. By denying Friedman’s petition for a writ of certiorari, the Court let stand the moderate and sensible opinion of Seventh Circuit Judge Frank Easterbrook upholding Highland Park’s assault weapons ban against a Second Amendment challenge. The announcement prompted a vigorous dissent by Justice Thomas (joined by Justice Scalia).

Seventy-five years ago, Justice Frankfurter cautioned against reading too much into Supreme Court decisions to deny cert and, in particular, against assuming that the failure of particular justices to join a written dissent indicated agreement that the case should not be heard or that the decision below was correct. But Monday’s decision has been much discussed these past few days among Supreme Court watchers and political pundits. It counts as a very big deal among gun rights enthusiasts and gun rights skeptics who have been vigorously litigating, lobbying and politicking all questions related to gun control and gun rights since the Supreme Court first enforced a Second Amendment right in District of Columbia v. Heller in 2008.

That case, and Justice Scalia’s opinion for a 5-4 majority, recognized (or, as some naysayers would have it, invented) a right to have operable handguns in the home for purposes of self-defense. But Scalia’s Heller opinion did much more. It also stated that the Second Amendment right rests in the ability to keep and bear arms for purposes of confrontation and then proceeded to list (without any explanation) various types of presumptively valid regulations and restrictions, including prohibition on possession by felons and the mentally ill, exclusion of guns from certain sensitive places such as schools and government buildings, and barring possession of uncommon or dangerous weapons. The Heller decision was extended to reach gun restrictions enforced by states and municipalities in McDonald v. City of Chicago in 2010. The McDonald plurality, per Justice Alito, expressly endorsed Justice Scalia’s definition of the right and his list of presumptively valid regulations in Heller. In sum, Heller and McDonald were seen as victories for champions of gun rights because they announced that the Second Amendment right was judicially enforceable, applicable to individuals in contexts wholly unrelated to militia service, and binding on all levels of government. But the two decisions left open more questions than they answered, and the adjudication of those open questions in the lower federal courts over the past few years has provided grounds for considerable optimism to citizens and politicians favoring gun regulation.

For those inclined to limit the scope of gun rights, Judge Easterbrook’s Highland Park opinion perhaps represents the most hopeful judicial development since Heller. Neither Heller nor McDonald specified a standard of review—though gun rights proponents have continued to push for a strict scrutiny standard that would place gun restrictions (perhaps even those Justice Scalia identified as presumptively valid) on shaky grounds. One suspects this is exactly what Justice Thomas desires, too. But in the years since Heller, many lower court judges, including Judge Easterbrook in Highland Park, have embraced a standard of review—sometimes called intermediate scrutiny—that harmonizes more closely with the interest balancing approach endorsed in Justice Breyer’s Heller dissent than with an NRA-favored expansive reading of Justice Scalia’s majority opinion. For Judge Easterbrook, the question of what weapons restrictions are permissible after Heller can be answered by asking whether the challenged regulations ban weapons that were common at the time of ratification or those that have some reasonable relationship to the preservation or efficiency of a well-regulated militia and whether the challenged regulations preserve for law-abiding citizens adequate means of self-defense. This deferential approach comes very close to rational basis review.

And that is precisely the problem for Justice Thomas. In his Highland Park dissent, he rebukes his colleagues for passing up an opportunity to “correct” the Second Amendment analysis of Judge Easterbrook that, in his words, would limit Heller to its facts (i.e., that a total ban on possession of operable handguns in the home vitiates the constitutional right to have weapons suitable for defense against felonious intruders). For Justice Thomas, Heller and the Second Amendment require that all levels of government preserve access to any types of firearms commonly used for lawful purposes today. Allowing Judge Easterbrook’s opinion to stand, Thomas worries, risks a return to the pre-Heller era of judicial non-enforcement. Thomas may well be right.

But the Supreme Court’s decision not to intervene in Highland Park may signal something other than uncertainty that there are five unshakable votes for expanding the scope of gun rights protection significantly beyond Heller. Justice Scalia’s often mocked paeans to originalism reached their most florid heights in Heller and have led to some palpably absurd arguments in lower courts. Take the case of Wrenn v. District of Columbia just argued in the D.C. Circuit. Competing amicus briefs in that case assert that the question of whether, in the year 2015, D.C. can place conditions on public carrying of handguns turns on the meaning of the Statute of Northampton, an English statute promulgated in 1328 a few decades  before firearms were known in Europe. More specifically, the briefs dispute whether the Statute criminalized carrying weapons generally or only in situations where it was likely to cause fear in the general public. Or take the case of Peruta v. County of San Diego, in which Ninth Circuit Judge Diarmuid O’Scannlain struck down San Diego County’s “may issue” regime largely on the grounds that history is outcome determinative and,  “correctly” read, the Statute of Northampton criminalized only weapons likely to cause terror to the public, thus firming up the assumption that access to other non-terrifying weapons by non-terrifying persons was lawful and largely immune to regulation in fourteenth century England and that it remains so in the United States today.

Against this countervailing new orthodoxy of hyper-originalism, Judge Easterbrook’s interest balancing may well invoke “rational basis” standards in more ways than one. It is not unthinkable that at least five Supreme Court justices are rather less comfortable than their brethren Scalia and Thomas in pushing the cause of originalism to limits well beyond any rational measure of reductio ad absurdam. After all, as Justice Frankfurter was often quick to say, judicial legitimacy in the eyes of the public is no trivial thing. And to many jurists not named O’Scannlain, Thomas, or Scalia, it is by no means self-evidently legitimate for judges to tell democratically elected legislators in the United States that they may not regulate guns today because a parliament sitting in Northampton, England wrote a statute in Law French 700 years ago that (the hyper-originalists assure us), when properly construed, criminalized only certain terrible weapons wielded by certain terrifying characters in a limited set of terrifying circumstances.

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