A Qualified Defense of the Heller Dicta

November 15th, 2011

Yes, we all know about the Heller dicta:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

I want to take a stab at a qualified defense. The common criticism of this passage is that it has nothing to do with originalism or the original understanding of the Second Amendment—“longstanding prohibitions” and bans of carry in “sensitive places,” as well as conditions on the “commercial sale of arms” had no justification in the original meaning of the Second Amendment.

Elsewhere, I’ve written:

Yet, a faint‐hearted formalist here,100 Justice Scalia does not practice what he preaches. Although the originalist portions of Heller sound in formalism, much of Justice Scalia’s opinion—in fact, the most important portions as far as lower courts are con‐ cerned101—sound in pragmatism.102 Lower courts can pay lip service to originalism and proceed to rely on the exact balanc‐ ing tests Scalia rejected.103 Heller represents a “clever judicial strategy [that] consist[s] of loud pronouncements on the invio‐ lability of constitutionalized rights coupled with more subtle indications of the courtʹs possible willingness to bend principles so as to satisfy pressing considerations relating to enforcement costs, compliance costs, or redistributive costs.”104 Specifically, Justice Scalia’s inclusion of the following oft‐criticized dicta105 in Heller evinces functionalism devoid of originalism.

Though, after working on the book review for Adam Winkler’s Gunfight, I have been thinking a bit more about the dicta in the context of Washington v. Glucksberg. Rehnquist’s opinion–which considered  whether a certain liberty interest was protected by the due process clause–looked at two factors:

Our established method of substantive due process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” id., at 503 (plurality opinion); Snyder v.Massachusetts291 U.S. 97, 105 (1934) (“so rooted in the traditions and conscience of our people as to be ranked as fundamental”), and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed,” Palko v.Connecticut302 U.S. 319, 325, 326 (1937). Second, we have required in substantive due process cases a “careful description” of the asserted fundamental liberty interest. Floressupra, at 302;Collinssupra, at 125; Cruzansupra, at 277-278. Our Nation’s history, legal traditions, and practices thus provide the crucial “guideposts for responsible decisionmaking,” Collinssupra, at 125, that direct and restrain our exposition of the Due Process Clause. As we stated recently in Flores, the Fourteenth Amendment“forbids the government to infringe . . . `fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” 507 U. S., at 302.

“Deeply rooted in this nation’s history and tradition” sounds a hell of a lot like “long-standing prohibitions.” It seems that the variety of originalism used by Justice Scalia sounds moreso in the substantive due process analysis, rather than a traditional bill of rights jurisprudence. That is, the court doesn’t so much look to the right by itself, or the underlying principles of the amendment, but rather considers the right in light of how it has developed in this nation over two-hundred years. By and large, this may be the best, and smartest way of applying the Second Amendment, as it was effectively a dead letter for two centuries. Our country had a long history of dealing with guns–as we had a history of dealing with liberty interests, such as the right to assisted suicided. Perhaps it is not so outrageous to consider these factors.

I don’t know, I need to work this out further. I am tempted to include this in my book review essay, in passing, but part of me doesn’t think it’s the right place. IDK.

Glucksberg, incidentally was heavily relied upon in McDonald, though that is immaterial for my purposes here.