When Judicial Restraint Trumps the Second Amendment

Thirty years ago the U.S. Senate refused to confirm the conservative jurist and legal theorist Robert Bork to the U.S. Supreme Court. As a result of Bork's borking, Anthony Kennedy joined the Court instead.

Writing at the Library of Law & Liberty, Mark Pulliam wonders what might have been had Bork, not Kennedy, made it through. "As a justice, Bork would likely have been a more conservative (but less sarcastic) version of Scalia," Pulliam writes. But there would have been some crucial differences between the two conservatives. For instance, Pulliam argues, Bork might well have disagreed with Scalia on the Second Amendment. That disagreement could have caused the landmark gun rights case District of Columbia v. Heller to have come out the other way.

Here is the heart of Pulliam's case:

Why do I suggest that Bork might have voted differently from Kennedy [in Heller]?As far as I can tell, Bork, who died in 2012, never commented publicly on Heller, but his general approach to constitutional interpretation is that courts should defer to the political branches unless the Constitution clearly puts the subject "off limits" from majoritarian rule. The Second Amendment, with its odd phraseology ("A well regulated Militia, being necessary to the security of a free State"), might have presented Bork with the same difficulty as the Ninth Amendment (which he once compared to an "ink blot") or the Privileges or Immunities Clause of the Fourteenth Amendment, making him reluctant to read into the constitutional text rights that the Framers did not expressly put there.

This is not mere speculation. In Slouching Towards Gomorrah, Bork referred to the language of the Second Amendment as "somewhat ambiguous[]." In the same passage, he stated that "The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical national government." While it is clear that Bork was opposed to gun control on policy grounds, it is not clear that he agreed that the Second Amendment conferred an individual right.

That largely tracks with my own understanding of Bork's jurisprudence. In my book Overruled, I described Bork as a "principled advocate of judicial minimalism," noting that Bork "opposed not only what he saw as the Court's liberal activism in Griswold [v. Connecticut] and Roe [v. Wade], he also rejected what he saw as the conservative activism of Lochner v. New York, the same case denounced by Progressive luminaries such as [Oliver Wendell] Holmes, Felix Frankfurter, and Theodore Roosevelt."

In his 1990 book The Tempting of America, Bork argued that one of the biggest threats facing America was the misguided effort to consistently elevate individual liberty above majority rule. As Bork saw it, that approach was totally backwards. The "first principle" of the American system is not individualism, he insisted, it is majoritarianism. "In wide areas of life," Bork wrote, "majorities are entitled to rule, if they wish, simply because they are majorities."

Bork's majoritarian philosophy has clear implications for the legal battles over gun control. Take D.C. v. Heller, in which the Court struck down Washington's handgun ban. As Bork might have asked, what business do unelected federal judges have sticking their noses into the regulatory consensus reached by the local officials that are directly accountable to Washington's residents? If would-be gun owners don't like what the law says, the Bork-ian argument goes, they should take their complaints to the ballot box, not to the courthouse.

As it happens, that very argument is alive and well in certain conservative legal quarters today. Back in February, conservative Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the 4th Circuit joined the majority of that court in upholding Maryland's ban on "assault weapons" and detachable large-capacity magazines. "It is altogether fair to argue that the assault weapons here should be less regulated," Wilkinson wrote in concurrence, "but that is for the people of Maryland (and the Virginias and the Carolinas) to decide."

Robert Bork may be gone, but his majoritarian judicial philosophy lives on.

Related: When Judicial Activists Switched Sides