Like most of the other VC members, I am happy that the Supreme Court has ruled in today's Heller decision that the Second Amendment protects an individual right to bear arms. However, there are many parallels between this victory and the recent experience with the Supreme Court's property rights jurisprudence that suggest this victory might not be as effective as many hope.
Over the last 20 years, both property rights and gun rights advocates have sought to get the courts to protect a largely moribund constitutional right. From the 1930s to the 1980s, federal courts almost completely abandoned the protection of property rights, with the important exception of requiring "fair market value" compensation for complete physical occupation of property by the government. During that time, the courts allowed property to be condemned for virtually any reason that government officials chose to give (despite the Fifth Amendment's requirement that property can only be taken for a "public use"), and also held that virtually any regulatory restriction on property rights short of complete physical occupation did not count as a "taking" that requires "just compensation" under the Takings Clause. One can tell a similar story about the federal courts' approach to the Second Amendment during the same period.
Since the 1980s, the Supremes have issued several decisions that expand protection for property rights in various ways. Even Kelo v. City of New London was an improvement over previous precedents. However, the net result has been only a slight increase in genuine judicial protection for property rights. Although the Court has trumpeted its new-found respect for property and even emphasized in Dolan v. City of Tigard that it no longer considers property rights a "poor relation" among constitutional rights, the actual results of its decisions belie these rhetorical pronouncements. For the most part - as far as the Supreme Court is concerned - it is still the case that government can condemn property for virtually any reason, and still true that property owners can't get compensation for all but a few of the most extreme "regulatory takings." The reasons for this outcome are instructive, as they apply with equal force to gun rights. In both cases, protections for the rights in question are weakened by and ideological divisions on the Court and narrow definitions of the right in question. This post addresses the issue of ideological division on the Court. I'll consider the importance of the scope of the right in question in a follow-up post.
I. The Ideological Split Over Property Rights on the Court.
With very few exceptions, the effort to strengthen protection for property rights was categorically opposed by the Court's liberal justices. Any property rights case that got to the Court almost starts with four guaranteed votes in favor of the government. This has two important effects.
First, any division in the ranks of the conservative justices is likely to be fatal for property rights in the case at issue. For example, Justice Anthony Kennedy voted with the liberal justices in Kelo and several other important property rights cases, leading to important setbacks for property supporters.
Second, and perhaps more important, it is extremely difficult to establish strong protection for any constitutional right if such protection is supported by jurists on only one side of the political spectrum. Any time the opposing party captures the presidency, there is a high likelihood that new justices will be appointed to the Court who will vote to undermine protections for that right. For example, President Bill Clinton's appointees - Stephen Breyer and Ruth Bader Ginsburg - have consistently voted against property rights since joining the Court. Even if there were a stable pro-property rights majority on the Court today, it would likely be undercut in the future any time a Democratic president gets some Supreme Court appointments.
II. Implications for Gun Rights.
Obviously, both points are extremely relevant to gun rights. In Heller, the four liberal justices made clear their strong opposition to any meaningful protection for individual rights under the Second Amendment. Thus, at least in the short term, protection for gun rights is dependent on the five conservative justices sticking together. As in the case of property rights, Justice Kennedy may turn out to be a crucial swing voter, and it is far from certain that he is willing to uphold gun rights against any but the most extreme infringements on them.
As with property rights, the ideological division on the Court also leaves any gains vulnerable to future reversal in the event that a Democratic president is elected. The liberal justices' opposition to gun rights is also shared by the vast majority of liberal judges on the lower courts. If Obama (or any other Democrat) becomes president, he will likely appoint justices who share these views. Even if Obama does not make this issue a major priority in his nomination decisions, the fact that he will want to nominate justices who are liberal on other constitutional issues will ensure a strong likelihood that they would also embrace the dominant liberal position on this issue. This happened in the case of property rights as well. Opposition to property rights was probably not a major factor in Clinton's choice of Ginsburg and Breyer. Indeed, Clinton was among those who later vehemently denounced the Kelo decision. Nonetheless, these two justices turned out be property rights opponents (even in Kelo) precisely because Clinton did make a priority of appointing judges who are generally liberal, and such judges are likely to be anti-property rights.
In both cases, the relevant group is liberal jurists, not necessarily liberals in the general population. While many liberal activists outside the Court are sympathetic to property rights (as was certainly evident in their reactions to Kelo), this has had little effect on the attitudes of liberal judges. Similarly, there are prominent liberal scholars such as Sanford Levinson and Akhil Amar who support the individual rights view of the Second Amendment, and a good many liberals in the general population who feel the same way. Their views have so far had little effect on liberal judges.
Related Posts (on one page):
- My Legal Times article on Heller and the Enforcement of Rights by the Courts:
- Reason Symposium on Heller:
- Lessons for Gun Rights Supporters from the Property Rights Experience, Part II - A Narrowly Defined Right May Not be Much Better than No Right at All:
- Lessons For Gun Rights Supporters From the Property Rights Experience I - The Importance of Ideological Divisions on the Court: