BY ANDREW KALLOCH
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Calling the Supreme Court’s decision in District of Columbia v. Heller a “Second Amendment revolution,” Profession Cass Sunstein ’78 declared in a panel discussion about the landmark Supreme Court decision on Tuesday, November 18. Sunstein was joined by fellow HLS Professor Lani Guinier and Yale Law School Professors Akhil Amar and Reva Siegel. The panel was sponsored by the Harvard Law Review, whose November 2008 issue focuses on Heller, which struck down the District of Columbia’s ban on handguns.Sunstein stated, “For better or for worse, there has been a sea change with respect to the right to bear arms comparable to civil rights, sex discrimination, and gay rights.”
For Heller proponents, the case is seen as a re-run of Marbury v. Madison, in which the Court stood as the protector of the original meaning of the Constitution against a democratic process that is “occasionally neglectful of it.”However, Sunstein discussed many problems with this conception. First, Sunstein noted, the historical materials do not produce a slam-dunk either way, as evidenced by the 5-4 split on the Court. Moreover, Sunstein added, even if we presume the decision is defensible on originalist grounds, why should the Court use originalism here and now? That approach would have been unthinkable even ten years ago, Sunstein surmised.
There is a second possible reading of Heller, pressed by Judges Richard Posner ’62 and J. Harvie Wilkinson III, that Heller is really Lochner v. New York all over again; a decision in which the Court is driven more by the judges own policy preferences than by an objective reading of the Constitution. Sunstein was skeptical of this analogy, in part because Heller, unlike Lochner, is almost certainly defensible on historical grounds, according to research done by Amar.
As an alternative to the Lochner conception, Sunstein postulated that the best analogy to Heller is Griswold v. Connecticut, a case concerning the right of married couples to access contraception. Sunstein stated, “What happened in Griswold was that at the time there was a national consensus that it was intolerable for states to prohibit married coupled to use contraception.” The Supreme Court’s decision in Griswold thus reflected the considered judgment of a strong national majority. Given the arch of public opinion with regard to gun rights was increasingly supportive of the result the Court embraced, Sunstein concluded, “Heller is exactly the same.” Had the decision come out the other way, curtailing a right considered by tens of millions of Americans, to be fundamental to their liberty the Court would have created political polarization and outrage.
An addition similarity between the Heller and Griswold decisions is that each had a narrow holding focused on the particularities of the cases. Sunstein predicted that narrow holdings will continue to be the preferred choice of the Justices with regard to the Second Amendment. “All of us have entered a new era: an era of Second Amendment minimalism,” he concluded.
Guinier spoke about the concept of “Demosprudence,” which seeks to identify and understand the connection between formalistic interpretation of law and the actions of the demos, or people. Guinier described Demosprudence as, “A democracy-enhancing form of jurisprudence…[that] refocuses legal elites on the role that ordinary people can play, when organized, in changing the understanding of constitutional culture, which in turn changes the study of constitutional law.”
The dissenting judge or justice plays a central role in shaping public debate about a particular issue. According to Guinier, dissenting justices are “much freer to speak in a voice that ordinary people can understand.” She cited Associate Justice Stephen Breyer ’64’s oral dissent in the 2007 case of Parents Involved in Community Schools and Associate Justice Ruth Bader Ginsberg’s oral dissent in Ledbetter v. Goodyear Tire & Rubber Co. as, “speaking to different audience[s]” than written dissents that are published in the Supreme Court reporter.
“Oral dissents are a prism on possibility because of the way in which the justices express their humanity through their morality even as they remain somewhat anonymous from access to a larger audience,” Guinier stated.
The importance of dissents in shaping popular constitutional culture means that President-elect Barack Obama’s ’91 appointments-who will most likely replace liberal Justices who often vote in the minority on the Roberts Court-must be selected with their role as potential dissenters in mind, Guinier noted.These dissenters, Guinier claimed, are uniquely capable of speaking to “constituencies of accountability who can mobilize to change the constitutional culture.” Dissenting judges and Justices must have relationships with those communities if they are to fulfill the ultimate goal of the dissenter, which Guinier described as, “reaching out to a larger audience in order to engage them in a conversation about the issues that are at stake.”
Guinier also took time to register her opposition to originalist jurisprudence, stating, “My biggest problem with originalism is that the focus on the community of consent at the Founding [which she noted excluded African-Americans, women, and others], does not allow current communities to express their views…[We] must give people presently in a consent community an opportunity to participate.”
Amar focused his comments on the heavy historical analysis conducted by both parties in Heller and criticized the nearly exclusive focus of the historical analysis on the Founding generation. “Everyone is debating about the founding in Heller,” Amar stated, “I wonder whether that is the right lamppost.”
Amar offered Reconstruction as a alternative period for fertile historical study. “The future of Second Amendment doctrine is one of incorporation,” Amar declared, noting, “the vast majority of liberty and equality cases in the modern era…are 14th Amendment cases.”Describing Obama as “an embodiment of the Reconstruction vision,” Amar expressed confidence that the President-elect will appoint justices who understand Reconstruction’s centrality in constitutional law.
Siegel marveled at the Heller Court’s “remarkable claim to stand inside law and outside of politics.” She stated, “The Court [in Heller] has intervened to vindicate rights that matter to conservatives just as a more liberal court did so in Griswold [v. Connecticut] and other cases.”
Indeed, Siegel stated that the transformative opinion in Heller can only be understood as the product of “constitutional politics.” Heller is “a story of movement, countermovement, and consensus in the decades following the Great Society…Each movement created the ecology for the other.” This historical debate between gun rights’ advocates and gun control proponents, Siegel postulated, may explain the rush of gun purchases in the wake of Obama’s election, despite the fact that Obama and many Democrats issued their support for the ruling.
For more academic analysis of Heller, see the current issue of the Harvard Law Review: Vol. 122, No. 1.