Justice Breyer and the Culture Wars:
I think it's illuminating to compare Justice Breyer's dissent in DC v. Heller with his dissent in Zelman v. Simmons-Harris, 536 U.S. 693 (2002), the Cleveland school voucher case from a few years ago. Like Heller, Zelman is a "culture wars" case. To many liberal elites, both school vouchers and guns seem foreign and suspicious. They both threaten the common enterprise of a civil and enlightened society, even if poor people and folks from the flyover states seem to like them. So the interesting queston is, how does Justice Breyer approach the constitutionality of these provisions — permitting school vouchers in Zelman, and banning handguns in Heller?

  In his Zelman dissent, Justice Breyer reasons that public school vouchers are unconstitutional because they "risk[]" creating "a form of religiously based conflict potentially harmful to the Nation's social fabric." That is, they are unconstitutional because there is a possibility that they could lead to tension among religious groups. Justice Breyer speculates that such programs might lead different religious groups to feel that they are not getting a fair shake:
How will the public react to government funding for schools that take controversial religious positions on topics that are of current popular interest--say, the conflict in the Middle East or the war on terrorism? . . . Efforts to respond to these problems not only will seriously entangle church and state, but also will promote division among religious groups, as one group or another fears (often legitimately) that it will receive unfair treatment at the hands of the government.
  As I read Breyer's Zelman dissent, his perception of a risk that the law could have a harmful result that touches on religious practice is enough to strike it down.

  Contrast Breyer's Zelman dissent with his dissent in Heller. Here, the polarity of the culture wars has been reversed. And so has Justice Breyer's approach: Now he reasons that the possibility of a positive social impact of the law makes it constitutional. The political philosopher of Zelman is replaced with a careful and cautious social scientist who runs over pages and pages of statistics and scientific studies in Heller. So long as the legislature had a possible basis for thinking that restricting the constitutional right was a good idea, Breyer explains, the law should be upheld:
  These empirically based arguments may have proved strong enough to convince many legislatures, as a matter of legislative policy, not to adopt total handgun bans. But the question here is whether they are strong enough to destroy judicial confidence in the reasonableness of a legislature that rejects them. And that they are not. For one thing, they can lead us more deeply into the uncertainties that surround any effort to reduce crime, but they cannot prove either that handgun possession diminishes crime or that handgun bans are ineffective. The statistics do show a soaring District crime rate. And the District's crime rate went up after the District adopted its handgun ban. But, as students of elementary logic know, after it does not mean because of it. What would the District's crime rate have looked like without the ban? Higher? Lower? The same? Experts differ; and we, as judges, cannot say.
  What about the fact that foreign nations with strict gun laws have higher crime rates? Which is the cause and which the effect? The proposition that strict gun laws cause crime is harder to accept than the proposition that strict gun laws in part grow out of the fact that a nation already has a higher crime rate. And we are then left with the same question as before: What would have happened to crime without the gun laws—a question that respondent and his amici do not convincingly answer.
(emphasis added)

  It's an interesting mirror image, I think. When the culture wars pointed one way, Justice Breyer thought that a "risk" of a "potentially harmful" adverse result was enough to strike the law down. When the culture wars pointed in the other direction, so did the burden of proof: now Justice Breyer must have his "confidence" in the reasonableness of the legislature "convincingly" "destroyed" before he would vote to strike down the law.

  To be clear, I'm not suggesting that Justice Breyer is alone in taking different approaches depending on which side of the culture wars the challenged law happens to fall. Plainly he is not. At the same time, I do think the contrast between these two dissents provides an unusually clear case of the difference.