Preserving judicial supremacy come Heller high water.

• Author: Softness, Benjamin S.

INTRODUCTION I. HELLER AND MCDONALD: THEIR BARK AND THEIR BITE. A. Heller v. District of Columbia B. McDonald v. City of Chicago C. Scholarly Reactions II. WHY MINIMALISM? THREE THEORIES A. Mandatory Minimalism B. Foot-in-the-Door Minimalism C. Power-Preserving Minimalism III. HISTORICAL EXAMPLES OF POWER-PRESERVING MINIMALISM: MARBURY AND BROWN IV. HELLER AS BROWN CONCLUSION INTRODUCTION

It is the nature of laws and rights to periodically collide, and gun control and gun ownership are no exception. Every state in the Union has gun control laws, (1) and mayors of cities across the United States rely on the ability to impose limitations on gun ownership to maintain public safety. (2) At the same time, a majority of Americans believes that the Second Amendment to the Constitution (3) protects an individual right to own guns. (4) So when the Supreme Court was asked, first in 2008 and again in 2010, to define the scope of the Second Amendment, it confronted an issue of frequent cultural and political clash. (5) In District of Columbia v. Heller, the Court, interpreting the Second Amendment essentially for the first time, concluded that it protects an individual right to gun ownership. (6) Two years later, in McDonald v. City of Chicago, the Court applied the newly defined Second Amendment to the states. (7) Both cases ignited significant public and scholarly debate. (8) Between the two, over one hundred amicus briefs were filed with the Court. (9) Scholars' reactions to the rulings ranged widely from praise for the Court's originalism, to concern about questions left unanswered, to charges of judicial activism.

Yet it was not entirely clear what the Court accomplished with Heller and McDonald. Some suggested that the holdings portended a general hostility to the enterprise of gun control. Because the Court arguably left open certain key questions--such as a standard of review--scholars wondered whether lower courts armed with Heller and McDonald would invalidate gun control laws at will.

Professor Cass Sunstein took another view. (10) Sunstein viewed the Heller Court as having issued a restrained, minimalist opinion. (11) He argued that the Court's approach in the case was narrow and represented merely the repudiation of a single law which "starkly departed" from the public understanding of the right to bear arms. (12) As an empirical matter, Sunstein appears to have been correct. Three years after Heller, lower courts are not taking very many liberties with gun control laws, and very little has actually changed. (13) Post-Heller gun control, in other words, looks a lot like pre-Heller gun control.

I agree with Professor Sunstein that Heller was minimalist. (14) However, this Comment is devoted to the question of why the Court ruled in the way that it did. Sunstein suggests that minimalist rulings like Heller are strategic insofar as they pave the way for future "doctrinal innovation" in that area of the law. (15) A minimal Second Amendment holding now makes more palatable a broader Second Amendment holding later.

I do not necessarily disagree with this account of minimalism, but I think it is incomplete. Minimalism does not only facilitate doctrinal innovation in a given area of the law. On my account, the Court sometimes issues minimalist rulings in order to preserve its ability to develop doctrine at all. The Court's ability to "say what the law is" (16) depends entirely on its institutional credibility--credibility that is risked when the Court rules on controversial topics. Thus, in certain "hot-button" cases, when the Court is required to make a controversial legal determination, it does so on narrow grounds in order to preserve its institutional power. I call this approach "power-preserving minimalism." Unpopular decisions can harm the Court's authority when they result in resistance--that is, when the Court's mandate goes unfollowed. Minimalist decisions avoid this pitfall: they state a legal principle in a way that requires fairly little (or no) action by the population at large. This Comment argues that Heller and McDonald were decided in just such a way. They were the subject of intense public debate and were quite significant jurisprudentially, but their innovative legal holdings were tempered by judicial tolerance of most existing gun laws. Thus, whether they agreed or not, it was difficult for citizens or political actors (federal, state, or local) to resist or defy the decisions in any way. By demanding fairly little, the decisions preserved the Supreme Court's power.

In displaying power-preservation tactics, Heller and McDonald are two in a line of cases that includes Marbury v. Madison, (17) Brown v. Board of Education, (18) and, most recently, National Federation of Independent Business v. Sebelius, (19) the Court's decision resolving the constitutionality of the Affordable Care Act. In all of these cases, the Court set new legal precedent but demanded very little in practical effect. And in all of these cases, a chief factor motivating the Court was the preservation of its own institutional power.

An exploration of the forces that motivate the Supreme Court is not simply an academic endeavor; it bears on the core of the Court's function in our constitutional democracy. (20) The Court issues nationally authoritative interpretations of the Constitution and federal law, and these interpretations are binding on everyone, including government actors in the other coequal branches. Yet no part of the constitutional text or structure technically gives the Court this awesome power. (21) The Court relies on the public's, and the other branches', belief in and deference to the Court's institutional role and competency. (22) It thus falls to the Court to preserve that influence through its primary institutional function--to wit, deciding cases. Moreover, although this Comment explores power preservation primarily through two specific cases, the Court's repeated attempts to preserve and conserve its power is a phenomenon the significance of which is only increasing. (23) It was almost certainly at play in the recent landmark ruling upholding the Affordable Care Act. (24) And, as will be discussed, it has emerged at many key moments throughout the history of the Supreme Court.

This Comment proceeds as follows. Part I summarizes Heller and McDonald and the scholarly reactions that followed them; it also develops Professor Sunstein's position in some detail. Part II turns to a question that logically follows Professor Sunstein's analysis: that of why courts issue minimalist rulings. It lays out three potential reasons, their theoretical underpinnings, and the characteristics that define opinions motivated by each. Part III shows how the last of the three approaches, power-preserving minimalism, has appeared in at least two other important cases in United States legal history. By analogy to the cases in Part III, Part IV posits that Heller and McDonald followed the same model. It points to the judicial and historical similarities and argues that those parallels indicate a shared motivation. The Comment concludes that its analysis is valuable for two reasons. First, the analytical framework applied to Heller and McDonald is useful beyond the instant cases and may help categorize other important minimalist rulings, including the Court's historic ruling on the healthcare law. Second, concluding that the Court is at times concerned about its own influence takes appropriate account of the institutional importance of judicial supremacy in our divided system of government.

1. HELLER AND MCDONALD: THEIR BARK AND THEIR BITE

   1. Heller v. District of Columbia

      Heller was a Second Amendment challenge to a Washington, D.C., law that imposed strict limits on gun ownership in the District of Columbia. (25) In his analysis of the case, Professor Sunstein describes the law at issue as "among the most draconian in the nation--a genuine national outlier." (26) It was especially restrictive of handguns: in the Court's words, "[i]t [wa]s a crime to carry an unregistered firearm, and the registration of handguns [wa]s prohibited." (27)

      In order to address the law's validity, the Court found it necessary to answer the "long judicially unresolved" question of whether the Second Amendment protects an individual right to bear arms or rather a collective right to bear arms in connection with state militia service. (28) That endeavor constituted the bulk of the majority opinion. (29) The Court engaged in what Sunstein called "self-consciously originalist" (30) analysis, consulting numerous eighteenth- and nineteenth-century sources, including of-the-period dictionaries, (31) Blackstone's Commentaries, (32) and the Declaration of Independence. (33)

      The Court, with Justice Scalia writing for a 5-4 majority (over two vigorous dissents), concluded that the Second Amendment protects the individual right of "law-abiding, responsible citizens to use arms in defense of hearth and home" and invalidated the D.C. law. (34) A blanket ban on handguns, the Court explained, "would fail constitutional muster" under any standard of scrutiny. (35) (The Court did not apply--or set--any specific level of scrutiny. (36)) Nevertheless, the Court assured the District that the Constitution leaves it "a variety of tools for combating" gun violence. (37) It stressed that its opinion should not be read "to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places... or laws imposing conditions" on the sale of guns. (38) This qualification limited the reach of the decision considerably. Thus, despite the new legal interpretation, lower courts have applied the decision narrowly. (39)

   2. McDonald v. City of Chicago

      McDonald v. City of Chicago came two years later and considered a challenge to two municipal gun control laws in Illinois brought under...