pageok
pageok
pageok
Justice Breyer's self-refuting dissent in Heller.--

I have been reading Justice Breyer's dissent in Heller.

I suspect that it may go down in history as one of the strongest arguments AGAINST balancing tests. If the restriction on liberty were trivial, then it might be easy to use a balancing test to uphold the DC statute's ban on handguns. Or if handgun bans were known to be spectacularly successful in reducing death and violence, then fair-minded judges might determine that even very substantial restrictions on liberty could be balanced away by the overwhelming benefit of gun control.

But gun control has very little effect on rates of violence or death (I think the evidence, while contradictory, points on balance to a small reduction associated with some gun controls.) Given this, the DC case should be an easy one for balancing: a major restriction of liberty (an outright ban) cannot be justified by a small or nonexistent gain in public safety.

That Justice Breyer reaches the opposite result from what should be a very easy case of balancing major restrictions of gun rights against minor net benefits suggests either that Justice Breyer is an unusually biased judge or -- more likely -- that the balancing test he posits is not workable in practice. Thus, Breyer's own opinion may be the strongest possible refutation of his jurisprudential approach.

johnbragg (mail):
So "balancing test" translates as "tissue-thin justification for judges' personal preferences"?
6.26.2008 8:32pm
taney71:
I would say it's a little of both but maybe more bias behavior on Breyer's part.
6.26.2008 8:42pm
Joe Bingham (mail):
It's hard to balance my preference vs. constitutional text. Both are very important and very wise. But I win.
6.26.2008 8:55pm
DangerMouse:
That Justice Breyer reaches the opposite result from what should be a very easy case of balancing major restrictions of gun rights against minor net benefits suggests either that Justice Breyer is an unusually biased judge or -- more likely -- that the balancing test he posits is not workable in practice.

Balancing tests are not workable in practice BECAUSE balancing tests are inherently biased. Judges who are biased LOVE balancing tests because it allows them to mask their bias behind some moronic test.

Rule of thumb: when you see a balancing test undertaken by a judge, you're looking at a biased (aka: corrupt) judge.

While I like the holding in Heller, the most important part of it was Scalia's insistence that Constitutional Rights are not subject to Judicial balancing:


The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all.


Taking things out of the hands of the Court is extremely important. The less the Judges meddle, the better. Of course, to ensure this, it's probably best that Judge Breyer is impeached.
6.26.2008 8:56pm
BD:
Regardless of how a balancing test might turn out, it's completely inappropriate for a judge to apply a balancing test where the Constitution expressly dictates a particular outcome (i.e., that Americans have the right to bear arms). As Scalia pointed out, the relevant balancing of interests took place in 1787. It's not for unelected judges in 2008 to revisit the issue of whether citizens should or should not be armed. Been there. Done that.
6.26.2008 10:29pm
kdonovan:

Given this, the DC case should be an easy one for balancing: a major restriction of liberty (an outright ban) cannot be justified by a small or nonexistent gain in public safety.



But Breyer and all his right minded friends don't think of access to guns as an aspect of liberty. Further Breyer is not really interested in liberty as the right to do what you want but rather cares about building a better society whether we want it or not.
6.26.2008 10:32pm
David M. Nieporent (www):
That Justice Breyer reaches the opposite result from what should be a very easy case of balancing major restrictions of gun rights against minor net benefits suggests either that Justice Breyer is an unusually biased judge
Breyer doesn't do that. He balances -- as his opening makes clear -- "interests," not rights.

A constitutional right is merely an "interest."
6.26.2008 11:43pm
AST (mail):
There is a balancing process inherent in Scalia's opinion, when he acknowledges that the Second Amendment right "is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Previous decisions upholding some restrictions were not overturned.
Breyer's "balancing" moves the fulcrum substantially in favor of the government's power and away from a right of the people which is specifically enumerated and not conditionally, as Breyer implies. Would he the point of balance there were the right in question that of privacy, or free speech, or the other rights chosen as more important by the ACLU?

I think the key is in the phrase "the security of a free state." Security is mentioned specifically in Article 2 and 4, first as a necessity of a free state and second as a personal right. I would argue that self-defense is an element necessary to the security of a free state, since a society where people live in fear is not free, no matter how much the government pays lip service to liberty. That being so, a sweeping "prohibition o[f] an entire class of 'arms' that Americans overwhelmingly choose for the lawful purpose of self-defense" goes beyond the pale. The mention of a militia provides a reason for stating that the right shall not be infringed, but that doesn't mean that it's the only reason, or that the right is conditional on the needs of the militia. The right is referred to as already in existence and the amendment states that it shall not be infringed, because private arms are needed for the militias which defend the security of a free state. However, the lapsing of that particular reason for protecting the right hardly invalidates the right itself.

Article IX makes it clear that a right of the people is entitled to the benefit of the doubt, as it has been in the case of a right of privacy, which is more properly regarded as another face of the right to be secure in one's person, house, papers, and effects. Why the big shift in balancing rights against government power only when it comes to the right of personal defense? The prohibition against felons possession dangerous weapons is not effected. Why must there be a presumption that anybody who possesses a handgun also possesses a criminal intent?
6.26.2008 11:48pm
zippypinhead:
My old criminal procedure professor, Yale Kamisar, once sarcastically remarked that "real men don't read dissents." That would be a particularly bad mistake here.

Breyer's dissent is far more clever than you're giving him credit for. Breyer lays out a roadmap that can be shoehorned into literally any standard of review. Although no court will explicitly adopt his proffered balancing test (given how definitively it was rejected by the majority), his underlying mode of analysis might nevertheless prove attractive to result-oriented jurists evaluating, for example, assault weapons bans (see, e.g., Breyer Dissent at 34-35). He cleverly suggests under-the radar approaches to uphold firearms regulations even under stringent standards of review. For example:
Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question
being whether the regulation at issue impermissibly burdens
the former in the course of advancing the latter.
Breyer Dissent at 10. And under the lower standard advanced by the Solicitor General:
In particular this Court, in First Amendment cases applying intermediate scrutiny, has said that our "sole obligation" in reviewing a legislature's "predictive judgments" is "to assure that, in formulating its judgments," the legislature "has drawn reasonable inferences based on substantial evidence." Turner, 520 U. S., at 195 (internal quotation marks omitted).
Breyer Dissent at 25.

Most troubling, Breyer specifically suggests how to achieve his result under a strict scrutiny-style analysis:
The upshot is that the District's objectives are compelling; its predictive judgments as to its law's tendency to achieve those objectives are adequately supported; the law does [not] impose a burden upon any self-defense interest that the Amendment seeks to secure; and there is no clear less restrictive alternative.
Breyer Dissent at 35.
And there's one other reason to pay careful attention to Breyer's dissent: it likely aligns closely with the "individual right" President-Elect-Maybe Obama has recently alleged he supports, but that -- until his post-decision statement today -- he also argued permits D.C.'s laws at issue in Heller.
6.26.2008 11:59pm
Originalism Is Useful (mail):
Yes, Breyer is doing Obama's work for him.

But, Breyer's dissent is piece of hot mess. Compare what he does in the dissent to what is described in his book, Active Liberty, and it's night and day.
6.27.2008 12:56am
James Lindgren (mail):
AST:

You'll probably be surprised that I largely agree with you. I think that the recognition of exceptions brings with it some idea of costs and benefits. But that probably would be best handled not in an open-ended case by case balancing as Breyer seems to embrace.

See also Orin Kerr's excellent post above on Breyer dissents.

Jim Lindgren
6.27.2008 2:54am
JMHawkins (mail):

As Scalia pointed out, the relevant balancing of interests took place in 1787. It's not for unelected judges in 2008 to revisit the issue


Yes! yes,yes,yes. It is the people, or their elected representatives, who do the balancing of interests. If they wanted courts to apply balancing tests, the laws would be written to specify what was to be balanced, eg. "...the right of the people to keep and bear Arms, shall not be infringed except for reasons of public safety." Note how the added phrase changes the meaning of the law? If the law doesn't specify the balancing test, then it's inappropriate for a court to make up one out of whole cloth.

The creation of balancing tests is one of the things that cause people to worry about "legislating from the bench." It's a valid concern, because the justices are absolutely modifying legislation they have no authority to modify.
6.27.2008 12:39pm