Greenhouse: Roberts, not Kennedy, Responsible for “Conciliatory Tone” in Heller

December 10th, 2015

Among Second Amendment scholars, one of our never-ending debates is who was responsible for nudging Justice Scalia in Heller to add various limiting language about the scope of the right to keep and bear arms. Arguably it is all dicta, but the tone is, shall we say, not Scalia. The most obvious candidate is Kennedy. Last year, Robert Barnes wrote an article, quoting Adam Winkler as saying that Kennedy is the weakest link.

Winkler became convinced researching his book that it was Kennedy who insisted that the opinion establishing the individual gun ownership right, District of Columbia v. Heller, contain language that it was not calling into question reasonable restrictions on gun ownership.

“There must be some concern about the way Justice Kennedy is going to go” in future cases, Winkler said.

Barnes interviewed me for that article, and I resisted giving into the Kennedy theory–no matter how many times he asked–as I did in my piece in the American Spectator.

In her column, Linda Greenhouse suggests that it is indeed Roberts, not Kennedy, who was responsible for the “conciliatory” language.

To the contrary, Justice Scalia ended the Heller opinion by acknowledging the specific problems posed by handguns. “We are aware of the problem of handgun violence in this country,” he wrote, “and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution.” (As an aside, the conciliatory tone of this statement is so unlike Justice Scalia that I suspect it was added at the insistence and probably also from the pen of a member of his majority, most likely Chief Justice Roberts.) Justice Scalia (or whoever) continued: “But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.”

I’ve slowly come around to the opinion that it may be Roberts. Several people who were in the Court during arguments in Heller saw Kennedy as very gung ho and active, while Roberts was far more laid back and reserved. (I wasn’t there).

Consider this lengthy question from the Chief to SG Clement where he rejects having to set a standard of review:

CHIEF JUSTICE ROBERTS: Well, these various phrases under the different standards that are proposed, “compelling interest,” “significant interest,” “narrowly tailored,” none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn’t it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can’t take the gun to the marketplace and all that, and determine how these — how this restriction and the scope of this right looks in relation to those? I’m not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don’t know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?

Usually it is Kennedy who eschews judicial tests in terms of scrutiny, but Roberts was unwilling to set up a framework that could be used to reach beyond handgun bans.

Obviously, this is all speculation, but this speculation is even more salient now that Scalia and Thomas have fractured off to dissent from the denial of cert.