Gregory J. Sullivan says the Supreme Court’s originalist majority has betrayed the originalist project in their Second Amendment cases, which, he says, are a cover for the “exercise of raw judicial power.” (“A Fly in Originalism’s Ointment”). It is no coincidence that Sullivan quoted the most famous line from Justice White’s dissent in Roe v. Wade. He believes that in this area of law, the current Court’s originalists are just as lawless as the Roe majority was, an argument he developed at length in “The Problem with the Supreme Court’s Conservatives.” In that article, Sullivan accused Justice Scalia of setting the Court on a course for “result-driven judicial imperialism” in his seminal Second Amendment opinion in District of Columbia v. Heller. Yes, that Justice Scalia, the chief architect of originalism and perhaps its greatest practitioner. If your reaction to Sullivan’s accusation is “that’s ridiculous,” you are on the right track.
William Blackstone, the preeminent authority on English law for the Founding generation, wrote in his Commentaries that the right to bear arms is grounded in the “the natural right of resistance and self-preservation.” In Heller, Scalia marshaled overwhelming historical evidence that the Founders understood that the Second Amendment codified this pre-existing individual right. Scalia rejected the “collective right” theory that had been popularized by progressive judges and academics in an effort to render the right practically meaningless.
Heller then established an originalist test for evaluating laws burdening a citizen’s right to keep and bear arms. Under this test, such laws are valid only if they are consistent with the “text and history” of the Second Amendment. Dick Heller wanted to keep a handgun in his home for self-defense but was prohibited from doing so by a D.C. ordinance banning the possession of handguns. The Court held that for its ordinance to be valid, D.C. was required to demonstrate that it was consistent with the nation’s history and tradition of firearm regulation, such as the tradition of banning “dangerous and unusual” weapons. But handguns are far from unusual. They are the most popular weapon chosen by Americans for self-defense in the home, and therefore the Court held D.C.’s complete prohibition on their use under any circumstances is unconstitutional.
Predictably, Heller touched off a firestorm of criticism. Even a small minority of conservatives disagreed. Perhaps none was more trenchant than Fourth Circuit Judge J. Harvie Wilkinson III, a Reagan appointee whom George W. Bush once interviewed for the high court. (Perhaps Ed Whelan can provide insight into that episode). Sullivan gets his comparison of Heller to Roe from a law-review article Wilkinson wrote in 2009. With all due respect to Judge Wilkinson, that comparison is just silly.
Roe announced a right to abortion that is completely unmoored from the text, history, and structure of the Constitution. Even abortion rights supporters understand this. As pro-abortion rights Professor John Hart Ely famously quipped, Roe “is not constitutional law and gives almost no sense of an obligation to try to be.” In contrast, the operative clause of the Second Amendment expressly states that “the right of the people to keep and bear Arms, shall not be infringed.” The dissenting progressives in Heller argued that because of the amendment’s prefatory clause, the operative clause does not really mean what it appears to unambiguously say. Whatever the merits of that argument, it is nonsensical for Wilkinson to argue that Heller is of a piece with Roe, which made up the “right” to abortion out of absolutely nothing at all.
Shortly after Heller, the Court held in McDonald v. City of Chicago that the Second Amendment applies to the states. Unfortunately, in the years that followed, the lower federal courts declined to apply Heller’s originalist text and history test. Instead, they jettisoned that test in favor of a judge empowering balancing test. On one side of the judicial scale, they placed the government’s assertion that its gun-control law is good policy. On the other side they placed the citizen’s interest in exercising their Second Amendment rights. To no one’s surprise, judges almost always decided that the government’s interest outweighed the citizen’s. The Ninth Circuit was a particularly egregious offender. In his dissent in a 2021 Second Amendment case, conservative Ninth Circuit Judge Lawrence VanDyke totted up the score in that circuit. By his count, in the years after Heller the government had a perfect 50–0 undefeated record in Second Amendment cases.
Of course, when the government always wins when it is challenged for infringing on a right, as a practical matter that right does not exist. And that was more or less the state of the law until 2022 when the Court announced its decision in New York State Rifle & Pistol Assn. v. Bruen. Contrary to Sullivan’s claim, Bruen did not establish a new rule of law. Instead, the Court surveyed the total hash the lower courts had made of Second Amendment law after Heller and stated that it would no longer allow the lower courts to interest balance away one of Americans’ fundamental rights. Bruen abrogated all of the interest balancing cases en masse and reiterated Heller’s originalist text and history test. The Court then applied that test to strike down a New York law that allowed government officials to arbitrarily deny permits to law abiding citizens for any reason or no reason at all.
Last June, the Court decided U.S. v. Rahimi, its first post-Bruen Second Amendment case. Sullivan tries to give the impression that the originalist majority splintered in several different directions in Rahimi as they struggled to apply the Heller and Bruen methodology. That is simply false. All of the originalists save Justice Thomas were in total agreement. It is true that Justices Gorsuch, Kavanaugh, and Barrett filed concurring opinions. So what? All three of them stated in those concurrences that they were in complete agreement with Justice Roberts’ majority opinion. They wrote separately only to emphasize various points of law they thought were important. Yes, Justice Thomas did not agree with his five originalist colleagues. Again, so what? As Justice Kavanaugh pointed out, reasonable minds can sometimes disagree about how originalism applies in a particular case but “we at least agree that is the only proper question a court may ask.”
In the lower courts the progressive rebellion against Heller (and now Bruen) continues apace. If anyone hoped that after being chastised by the Court in Bruen the circuit courts dominated by progressives would fall in line and finally begin applying the Heller test in good faith, they were in for disappointment. Post-Bruen, the government still has a near spotless 16–1 record fending off challenges to arms bans. The Ninth Circuit is, again, the worst offender. Its decision staying an injunction in Duncan v. Bonta is typical, and Judge Bumatay’s dissent in that case (which I have cleaned up for readability) reflects the frustration of originalist judges:
If the protection of the people’s fundamental rights wasn’t such a serious matter, our court’s attitude toward the Second Amendment would be laughably absurd. . . . [In Bruen], the Supreme Court had enough of lower courts’ disregard for the Second Amendment. It decisively commanded that we must no longer interest-balance a fundamental right and that we must look to the Second Amendment’s text, history, and tradition to assess modern firearm regulations. . . . Despite this clear direction, our court once again swats down another Second Amendment challenge. . . . The Constitution and Californians deserve better.
Sullivan points to Judge Wilkinson’s recent opinion in Bianchi v. Brown as evidence that conservatives have a problem with Heller too. Nonsense. There are 15 active judges in the Fourth Circuit. Nine were appointed by Democrat presidents and six were appointed by Republicans. In Bianchi, Wilkinson joined the nine progressives to form a 10–5 majority. A single defection is hardly evidence of widespread conservative discontent. Bianchi had nothing to do with conservative dissatisfaction with the originalist test developed in Heller. It had everything to do with willful judges (including one who usually leans conservative) refusing to apply those originalist principles in good faith.
Bianchi is the Fourth Circuit’s second post-Heller failure. Remember all of those interest balancing circuit court decisions that were abrogated by Bruen? One of them was the Fourth Circuit’s decision in Kolbe v. Hogan. Bianchi was a post-Bruen challenge to the same gun-control statute Wilkinson voted to uphold in Kolbe. In true you’re-not-the-boss-of-me fashion, Wilkinson responded to the Supreme Court’s abrogation of Kolbe by holding that Kolbe was right all along and reaffirming it. I am not making this up. Read the decision for yourself.
Sullivan implies that the Heller test is such a muddle that even judges like Wilkinson purporting to apply it struggle to do so. Not true. Spouting the Heller test and applying it in good faith are not the same thing. Justice O’Connor once noted that when they want to “[judges] know how to mouth the correct legal rules with ironic solemnity while avoiding those rules’ logical consequences.” Bianchi illustrates the truth of this observation. The thrust of Wilkinson’s opinion is that semi-automatic rifles that are disfavored by progressive judges (especially the AR-15, the most popular rifle in America) are not within the scope of the Second Amendment’s plain text. You read that correctly. According to Wilkinson, certain firearms do not count as “Arms,” as that word is used in the Second Amendment. To be sure, Wilkinson tacked on a perfunctory historical analysis, but after holding that disfavored arms do not even fall within the plain meaning of the word “arms,” one can be certain where that went.
Wilkinson’s opinion in Bianchi is not a good faith attempt to apply Heller. It is, frankly, a tendentious embarrassment, as any reasonably intelligent eighth grader would be able to discern. If you want to know the true state of Second Amendment law and how it should have been applied, you would do well to read Judge Richardson’s masterful dissent in that case.
Have the Supreme Court’s Second Amendment cases exposed a flaw at the heart of the originalist project as Sullivan says? No. The originalist project is doing just fine, thank you. That is especially true when one considers the alternative — unelected, unaccountable, life-tenured, judges acting in “black-robed supremacy” (Scalia’s words) as they impose their policy preferences on the rest of us under the guise of interpreting the Constitution. The Court’s Second Amendment cases have not exposed a flaw in originalism. They have exposed a flaw in willful lower court judges who refuse to apply binding Supreme Court precedent with which they disagree. Of course, “exposed” is not quite the right word, because anyone paying attention knows we have had that problem for a long time.