March 22, 2009
Winkler on Heller's Contradictions
Adam Winkler (UCLA) recently posted his smart and delightfully entertaining piece Heller's Catch-22on ssrn. The article is also forthcoming in the UCLA Law Review. This is clever, insightful, and important beyond the Second Amendment--a very satisfying read. I highly recommend it.
Winkler's thesis (as his title suggests) is that last term's Second Amendment case, D.C. v. Heller, contains the same types of contradictions, inconsistencies, and in some cases just plain silliness as Joseph Heller's classic, Catch-22.
(Let me stop here for just a minute--a footnote to the last sentence, if our software would permit it--to address what some might see as an all-too-clever (or even too cute) play on Heller (and Heller). If you're like me, this kind of thing has a ton of potential to distract from an otherwise interesting article. But not here. Winkler plays off Catch-22 without overusing it; the article is most definitely about Heller, not Heller. But more important: catch-22 (the idea, not the book; or, rather, the idea from the book) isWinkler's thesis. And anyway Heller makes the article fun.)
Winkler starts with the contradictions in public policy and in the public debates. Here's a sample:
In almost every state, one can obtain a permit to carry a concealed weapon--except where one cannot. In many states, local sheriffs or chiefs of police have broad discretion over who may receive a permit and, depending on the city or county, no permits may be issued. For example, in Torrance, California, one of the largest cities in Los Angeles County, one can apply for a permit and, as required by state law, receive a permit application from the city. But the police chiefs include in the mailing a statement of their longstanding policy to refuse all application request. Please apply, but no applications accepted.
These examples are more than a mere warm-up for the reader (though they surely are that, what with Winkler's talent for laying plain the contradictions in the gun debates). Winkler uses these to show how our often conflicting positions on gun-rights/gun-control manifest themselves in inconsistent policies: Our gun-rights interests allow for concealed weapons permits, but our gun-control interests lead to the routine rejection of applications. We're fundamentally torn about gun-rights/gun-control, and our policy shows it.
Winkler argues that we therefore shouldn't besurprised when the Supreme Court is equally torn. And it showed it too, in Heller. A "particularly striking inconsistency" of that opinion is the majority's claim to use originalism. "Hailed as 'a triumph of originalism,' Justice Scalia's majority opinion actually embodies a living, evolving understanding of the right to bear arms." Here's an example:
Consider how Justice Scalia's opinion addresses D.C.'s ban on handguns. An originalist would look to historical sources to determine whether those who ratified the Constitution thought a ban on a particular type of weapon was contrary to the right to keep and bear arms. But Scalia's opinion doesn't do this. Handguns are protected, according to the opinion, because they are "'the most preferred firearm in the nation'" to keep for self-defense. . . . In place of the rock-hard original meaning of the Second Amendment, Scalia looks to the fickle dynamics of the contemporary consumer choices.
Heller also strays from originalism in what is, for practical purposes, the most important part of the opinion. In a paragraph near the end of the opinion, the Court lists a number of "longstanding prohibitions" on guns that remain good law . . . . The vast majority of gun control laws fit within these categories. So while forcefully declaring an individual right to keep and bear arms, the Court suggests that nearly all gun control laws currently on the books are constitutionally permissible.
This latter example--the "Laundry List" of constitutional restrictions--led lower courts to uphold 75 restrictions and overturn none in the cases that have come down since Heller. So here's another contradiction: Lower courts, which might otherwise have used originalism to overturn some of these restrictions, use the "living constitutional" Laundry List to uphold them. For all of Heller's hype, its primary contradiction has resulted in no change to the Second Amendment.
And here's the final twist: "Because of its failings, Heller is more likely to have a salutary effect on the gun debate in America by improving gun policies in the future." Why? The living constitutional approach--and particularly the Laundry List--has provided guidance to lower courts, and disarmament--the "obsession of both gun lovers and gun haters"--is off the table. Federal courts will be a new voice--and a reasonable one--in the gun debates, and Heller's Catch-22 is to thank.
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