Robert Levy on Heller, Part II

Robert Levy, the attorney who helped finance the Heller litigation, gives a follow up response to the Brady Center's Dennis Henigan and his take on Heller:

On other matters, Henigan will get little mileage from his accusation that Justice Scalia engaged in “results-oriented jurisprudence, based on subjective value judgments.” For proof of that proposition, Henigan offers a critique of Heller by conservative law professor Doug Kmiec, who writes that Scalia ignored “constitutional text, history, and precedent.” Yet for every apostate on the right — is there any other, besides Kmiec? — there are multiple apostates on the left. Laurence Tribe, Akhil Amar, Alan Dershowitz, and Sanford Levinson, among others, all conclude that militia service was a sufficient but not necessary condition to the exercise of Second Amendment rights. The weight of scholarly opinion — across the ideological spectrum — is decidedly with Scalia.
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Henigan also asserts, “there are not five votes on the Supreme Court for applying a ’strict scrutiny’ standard” of judicial review. He characterizes that as “an important setback for Heller.” Actually, neither Henigan nor I have inside knowledge that one or more of the five justices in the majority resisted strict scrutiny. Instead, we know only that the issue did not have to be resolved because D.C.’s ban was unconstitutional “under any of the standards of scrutiny the Court has applied to enumerated constitutional rights.” At some point, the Court may settle on a specific standard. If so, the standard will not be “rational basis,” as favored by the D.C. government, Professor Chemerinsky, and Henigan’s associates at the Brady Center. Nor will the standard be Justice Breyer’s “interest-balancing” test, which is presumably what the legislature applied when passing the law. Far from being a “setback” for Heller, the Court’s categorical rejection of those deferential standards is a significant victory.

In fact, Scalia’s citation in footnote 27 to United States v. Carolene Products is illuminating. Carolene was the 1938 case that effectively bifurcated our rights: The Court now rigorously protects some rights, such as those codified in the Bill of Rights, while rubber-stamping the regulation of second-tier rights, such as those related to contract, property, and commerce. By positioning the right to keep and bear arms squarely within the camp of specific, enumerated rights, and linking the Second Amendment to “the freedom of speech, the guarantee against double jeopardy, [and] the right to counsel,” Scalia sent an unmistakable signal that gun control regulations will be rigorously reviewed — perhaps even strictly scrutinized. That skeleton will have to be fleshed out in later litigation, but it’s fair to say that the gun controller’s standard-of-review glass is mostly empty, no matter how Henigan wants to spin it.
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A few observations: First, the so-called Heller paradox depends on demonizing the gun lobby. That bogeyman may be rhetorically useful for Henigan, but it wasn’t the gun lobby that filed the lawsuit, picked the right time, provided the lawyers, identified the issues, selected the plaintiffs, chose the venue, decided on the legal strategy, wrote the briefs, argued in court, and won the case. The NRA can speak for itself, but our goals were not grounded on wedge issues or a cultural base. First and foremost, our interest was to ensure that the D.C. government complied with the text, purpose, structure, and history of the Second Amendment. For us, Heller was about the Constitution; guns merely provided context.

Read the article here.