In Rucho v. Common Cause, the Supreme Court declared that partisan gerrymandering is a nonjusticiable political issue. Two factors seem key to the Court’s holding: the difficulty of finding a manageable standard to assess such claims and the thorny expansion of judicial review into an area of deep political controversy. Some of these same concerns permeate Second Amendment litigation; but, perhaps surprisingly, they gave the Heller majority no pause when it first announced an individual right to keep and bear arms.
First, consider the issue of manageable standards. In Common Cause, the majority dismissed the idea of striking down the gerrymanders before the Court—which it acknowledged were “highly partisan” and could lead to outcomes that “reasonably seem unjust”—without at the same time creating a standard to decide the constitutional line in all other such challenges. Specifically, the Chief Justice rejected Justice Kagan’s suggestion that the Court could strike down the Maryland and North Carolina maps at issue on the theory that this much is too much. “That,” according to the Chief, “is not even trying to articulate a standard or rule.”
But, as Charles Fried ably showed just days after the Common Cause opinion, “[t]he law is replete with conclusions that depend on judgments that something is extreme, unusual, or outrageous, without offering the precise boundaries of that judgment.” Consider, for example, Lawrence v. Texas, which didn’t rely on traditional tiers-of-scrutiny analysis or settle all future questions about LGBTQ rights. Fried also listed several examples where the Chief himself has argued for a less-than-precise dividing line in constitutional matters.
Indeed, Heller itself is a powerful example of the type of this-much-is-too-much reasoning Common Cause rejected: The Court struck down the District of Columbia’s complete handgun ban without saying how other Second Amendment cases should be analyzed or where the line is between permissible regulation and unconstitutional prohibitions. Justice Scalia, in other words, employed the theory of Justice Kagan’s Common Cause dissent. As he said, “whatever else it leaves to future evaluation, [the Second Amendment] surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” And even though the Court gave a few examples of other regulations that might be upheld, it gave no reasons why and provided no explanation as to how courts should review them. (See “Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit.”)
Nor did this failure to create a new, manageable test for assessing future Second Amendment claims concert the Heller majority. It expressly rejected Justice Breyer’s criticisms of this failure.
JUSTICE BREYER chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U. S. 145 (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.
Recognition of an extreme outlier was enough to declare unconstitutionality in Heller, but not in Common Cause. That’s not the only puzzling disjuncture between the two cases. Take a set of striking similarities in each: despite the existence of gun regulations and gerrymandering dating back to the Founding era, the Supreme Court had never before struck down regulations or partisan maps as unconstitutional; and both issues are—and have long been—heated and politically contentious issues. Chief Justice Roberts hammered this point in Common Cause:
What the appellees and dissent seek is an unprecedented expansion of judicial power. We have never struck down a partisan gerrymander as unconstitutional—despite various requests over the past 45 years. The expansion of judicial authority would not be into just any area of controversy, but into one of the most intensely partisan aspects of American political life.
On the other hand, Justice Scalia, writing for the Heller majority, saw no similar concerns there:
It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods.
Concerns about the political thicket were likewise brushed aside. After all, the judge’s job is to say what the law is. As Justice Scalia put it, “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.” (Justice Stevens, in dissent, bemoaned the court’s entry into the political thicket on an issue where there was no discernible political process failure; on the other hand, when it came to legislative districting, he argued, the Court’s “entry into that thicket was justified because the political process was manifestly unable to solve the problem of unequal districts.”)
The juxtaposition between Common Cause and Heller highlights the dissonance between competing theories of the judiciary’s role and perhaps feeds the belief that judges are no more than politicians in robes. After all, the conservative justices—including in both cases, Justices Thomas and Alito alongside the Chief—thought one right worth announcing for the first time, despite the stridently partisan nature of the debate and failure to create any rule or standard for future cases. In the other, they thought those factors counseled judicial abstention. Something similar might be said for the other side. Justice Breyer decried Heller’s failure to announce a standard or method for assessing future Second Amendment claims, but he joined Justice Kagan’s opinion that would have held simply that “this much is too much” partisan gerrymandering. In the pending Second Amendment challenge, New York State Rifle & Pistol Association, Inc. v. City of New York, we may have another chance to tell whether ideology tells the full story in these cases.