Mr. Justice Breyer Writes a Dissenting Opinion

On June 28, the Supreme Court released the decisions that finished the business of the year. Notable among them was the judgment handed down in McDonald v. Chicago on the Second Amendment and the right to bear arms. Just two years earlier a slim majority of the Court affirmed for the first time that the plain words of the Amendment meant, in fact, what layers of long articles in the law reviews could not quite explain away. The Amendment contained just one sentence: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” But an earlier version of the Amendment contained a final clause declaring that an obligation to serve in the military would not be imposed on people who bore “conscientious” scruples about serving. When that provision itself proved elusive to define and defend, it was dropped.

Still, its inclusion could have bolstered the claims made by many commentators that the Amendment referred mainly to “the people” who were assembled in militias, not to individual persons, holding or keeping arms for the purpose of protecting themselves. But the Court found ample reason to hold, in District of Columbia v. Heller , that the Amendment did indeed refer to the right of ordinary persons to have a “private” access to guns to protect themselves, and that meant mainly handguns.

Whether the denizens of Anacostia in D.C. could deploy bazookas or AK-47’s was quite another matter. As was the question of whether the District of Columbia could require those handguns to be registered, to contain safety locks, to come along with licensed training in the use of the guns. None of those questions was foreclosed. To recognize an individual right to bear arms did not insulate that right from all manner of plausible regulations, any more than the individual right to engage in political speech could insulate persons from laws that barred libel, obscene phone calls, threatening letters, speaking too loudly outside a hospital, or speaking too critically to people entering an abortion clinic.

The question in the McDonald case was whether that right of a person to defend himself with arms could be “extended” from the District of Columbia to the states and their subdivisions. The question had to be puzzling to people who had only a bare acquaintance with constitutional law. There was a time when the question was far livelier in our public life and far clearer then to ordinary folk. Stephen Douglas could readily assume, during his debates with Abraham Lincoln, that even people from the backwoods of Illinois would follow him when he treated, as an unserious argument, the claim that the decision of the Court in the Dred Scott case would be applied to Illinois.

The Court had declared nothing less than a constitutional right not to be dispossessed of one’s ownership of a slave when one entered into a territory of the United States. The owner of Dred Scott had sojourned for a long while in the Northwest Territory, from which slavery had been famously barred. And yet that stay in “free” territory had not dissolved his ownership of Dred Scott. Lincoln warned that people would go to sleep in Illinois as a “free state” and wake up in Illinois as a state in which the right of property in a slave would now be respected and protected. To which Douglas responded that the notion was just absurd: The territories of the United States were not, after all, states. They were governed exclusively by Congress until portions of them would be organized as states.

The Supreme Court struck down the bar to slavery in the territories by invoking the Fifth Amendment: that a person shall not be “deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The slave did not count, of course, as one of those persons whose “liberty” was protected. But the holder of slaves was recognized as the only one with a claim to the possession of “property” in this case. Congress had not recognized this form of property as legitimate in the Northwest Territory, but that Act of Congress, in barring this property, was now struck down by invoking the Fifth Amendment. And everyone understood at the time that the Fifth Amendment did not apply to states.

The first eight amendments, which we have come to call the Bill of Rights, were understood as restrictions that bore solely on the federal government. Hence the First Amendment reads “Congress shall make no law . . . abridging the freedom of speech, or the press.” Lincoln, in a clever, insightful move, pointed out that there were other “rights” contained in the Constitution apart from those mentioned in the first eight amendments. And those “rights,” in other parts of the text, would be quite enough to act as vehicles in applying to the states the new right recognized in the Dred Scott case.

In time, of course, Douglas and the partisans of slavery would have recognized the implications seen by Lincoln”when it would become politically convenient for them to discover these implications , lurking there all along. In the aftermath of the Civil War the Fourteenth Amendment would place serious restrictions on the authority of the states to abridge the rights of citizens and persons. And through the Fourteenth Amendment the Court would start “incorporating” against the states different parts of the Bill of Rights. The right of people not to be forced to incriminate themselves, not to be put in jeopardy twice and tried for the same offense, not to be barred from confronting the witnesses brought against them”these kinds of rights would be slowly “incorporated” and applied to the states. Hence the surprise of the conservative wing of the Court in the McDonald case: It had been a cardinal doctrine of the liberal persuasion for years that all honest-to-goodness rights should of course be applied to the states. Why the posture of astonishment and even outrage now by the liberal wing when the Court recognized the right to bear arms as a genuine right of the person”and then took the next step in applying that right to Illinois?

The dissents were led for the liberal wing of the Court by Justices Stevens and Breyer. Stevens delivered himself of a long discourse, using his final moments on the Court to pronounce an anathema on “originalism.”

Stevens was kind enough in his last moments to spare the audience at the Court his long opinion. But Justice Stephen Breyer readily stepped into the slot to convey, in his winning way, the points that made up his extended argument in dissent. It was a considerable labor to explain why the liberals on the Court would now so markedly strike off at odds with the course they had followed for more than sixty years, in favoring the “incorporation” of more and more parts of the Bill of Rights. Might it have had something to do with guns? Or with the liberal aversion to the culture of those people who used guns, either in hunting or in their willingness actually to shoot thugs? As Breyer strained to show, it was no aversion, really, to guns; the objections sprung wholly from the principles of jurisprudence. He would then proceed to set forth those serious complications of principle and prudence that should give judges pause before they took this matter of guns out of the hands of local politicians, ever sensitive to the sentiments of their voters, and ever open to finding the right mix of regulations that could bring safety to the public.

I was in the courtroom that day, and as I listened to Justice Breyer unfold his teaching in jurisprudence, it struck me that every item could find its place in an opinion, accumulating in its force”though not especially apt or compelling in meeting the opinion put forth by Justice Alito. Breyer was assembling the most plausible dissenting opinion, but not for McDonald v. Chicago . It was the dissenting opinion that could have borne with even more plausibility and force . . . in Roe v. Wade . It was Back to the Future. Consider even now the march of his points as he advanced.

• The decision of the Court to find, in the Second Amendment, the right of an individual to possess arms for his own defense would amount, said Breyer, “to a significant incursion on a traditional and important area of state concern, altering the constitutional relationship between the states and the federal government. Private gun regulation,” he went on, “is the quintessential exercise of a State’s “police power””i.e., the power to “protec[t] . . . the lives, limbs, health, comfort, and quiet of all persons . . . . ”

But of course there is nothing more “quintessential” to the province of local government in this country than the laws on homicide and assault. Ordinary murders are not generally prosecuted in federal courts. Until the 1970s, it was virtually unimaginable that the federal government would have anything much to do with the matter of abortion. There was, of course, the barring of abortion in the District of Columbia, the National Institutes of Healthy, military hospitals, and outposts abroad. But the primary responsibility for dealing with this branch of homicide was never thought to repose anywhere but in the local governments.

• “Determining the constitutionality of a particular state gun law,” said Breyer, “requires finding answers to complex empirically based questions of a kind that legislatures a are better able than court to make.” Unless Breyer has the most artfully focused case of amnesia, he should have known that this was indeed one of the most important arguments raised against Roe v. Wade . Justice Blackmun, writing for the majority of the Court in Roe , professed not to know when human life begins. He did not know, that is, what any textbook at hand could have readily told him. It required the Senate Committee on the Judiciary to survey virtually all of the textbooks on embryology and obstetric gynecology, bringing out the remarkable convergence of the scientific evidence on a point that Justice Blackmun regarded as inscrutable and unanswerable.

Life begins, according to the textbooks, with the union of a male and female gamete to form a new entity, a zygote, with a genetic definition quite different from that of either parent. In other words: conception. The Supreme Court did not have the means of calling experts in to testify, and it did not have the occasion to do extensive research without the presence of an actual case to be decided. Without that focus, there was no need driving the Court to gather evidence on the evolving techniques for performing surgery on infants in the womb; on the question of how early a fetus can be removed from the womb and sustained with artificial incubators and other means; or on just early that offspring in the womb can experience pain.

• The regulation of guns was a matter quite portentous to Breyer because “it embodies a judgment that the regulation will help save lives.” To weigh the constitutionality of these regulations of guns “would thus almost always require the weighing of the constitutional right to bear arms against the “primary concern of every government”a concern for the safety and indeed the lives of its citizens.” In the full corpus of Breyer’s writings touching on abortion, almost nothing reveals more dramatically the convenient closing of his mind to the fact that the surgical dismantling of body parts in an abortion actually marks the destruction of a human life.

• It is possible, of course, to conceive of many variations and gradations in the regulation of guns. So many, in fact, that the Court could judge these regulations only by addressing “issues of empirical fact.” Breyer asks, “How can the Court determine if there are less restrictive alternatives without considering what will happen if those alternatives are implemented?” It seems evident to Breyer that the Court would be better able to weigh its judgments if it could draw on a richer fund of experience, with fifty separate states flexing their freedom and inventiveness to try out a vast mix of regulations. But a point so obvious would surely have been even more obvious on the matter of abortion: As Aristotle reminded us, for example, a decision taken in ignorance is not exactly a “voluntary” decision. And so what varieties of things may be done to insure that the woman contemplating an abortion understands what she is doing: understands, that is, whether that child she is carrying is less than human, or how far along it is in its development, or just who, among its relatives, it happens to resemble.

As we have already seen, there are many variations simply in dealing with the matter of minors separated from their parents. Until abortion was elevated as right of high standing, it was regarded as unthinkable that any surgeon had a legal freedom or right to act upon a child without the awareness and consent of her parents. It should be quite as clear, then, in the case of abortion as in the case of guns, that the Court would have a far richer ground of information in judging the practice of abortion in America if the separate states were allowed to show the fuller range of their inventiveness and authority as they sought to deal this matter of taking small human lives on a grand scale.

• And finally, Justice Breyer took it as his coup d’grace , his flourishing finish, his riposte that surely silences all churlish attempts to argue further, that the “incorporation” of this right to bear arms as a right now bearing on all of the states would “impose on every, or nearly every, state a different right to bear arms than they currently recognize”a right that threatens to destabilize settled state legal principles.” Let’s see if we have that: With Roe v. Wade the Court articulated a constitutional right to abortion and then swept away, with one stroke, the variety of laws and conventions in the separate states that deal with the killing of embryos in the womb. Every state”including the most liberal states”had its policies displaced in favor of the most radical, unrestricted right to abortion found anywhere in the western world. Even the liberal states were being forced to accept a right to abortion strikingly “different . . . than they currently recognize.”

And what of unsettling principles long settled? No noticeable effect there? The protection of the laws on homicide were suddenly removed overnight from the protection of a whole class of human beings. Their lives could now be taken, with dismembering or poisoning, without the need to render a justification”or provide an anesthetic. The law recognized for the first time a right to take a human life for wholly private reasons, for one’s own self-interest. At the same time, the people in the separate states were told they were no longer free to deliberate together in public in deciding whether their laws on homicide would continue to cast their protection on a child in the womb, as they had done virtually since their beginning. For Justice Breyer, had none of these things ever come into sight? And had they not generated at least a minor tremor, a hint of suggestion that things once deeply settled in the laws had become inverted overnight and deeply unsettled?

Clearly, this list of concerns unfolded by Justice Breyer, concerns so deeply jural, marking off the principles of federalism, put forth with furrowed brow, is just so much badinage. For as the comparison to Roe instantly shows, these principles of demarcation are nothing that Breyer takes seriously for a moment when they get in the way of any “right” that he regards as truly important. He touched the core of the problem early on in his opinion when he noted the need to consider whether the “right” at issue was “fundamental.” And revealingly, nothing in the tests he put forth reached the substance of the right itself. Breyer would consider whether there was any “contemporary disagreement about whether the right was fundamental,” whether its elevation in the ranks of rights would “advance or hinder the Constitution’s structural aims, including its division of powers.” Once more, it took the most heroic screening on the part of Breyer in order to deflect from his notice that the right to kill a human infant in utero has been the subject of the most intense, unabating “contemporary disagreement” for thirty-seven years. And the ascendance of judges, sweeping away the authority of legislators at every level, has had the most distorting effects in altering the division of powers within the constitutional scheme.

But why not talk directly about the substance of these rights? What exactly are we talking about: A right to do what , either with guns or with children in the womb? When it comes to guns, Breyer has a keener sense of the rightness of regulating guns than he has of the rights that people have in mind when they object to be deprived of their guns. One of the people bringing the suit in Chicago was Otis McDonald, a man in his seventies, who lives in a neighborhood that has turned dangerous. As Justice Alito noted, the murder rate has risen notably in Chicago since those stiffer laws on guns came into effect. Chicago now has one of the highest murder rates in the country. The right at stake for Otis McDonald is the right of innocent people to protect their own lives and their freedom.

Three years earlier, in the Heller case, Justice Scalia invoked that precise right as the ground of the judgment for the Court. For Scalia this was a move a bit rare for him, for he had to move beyond the text of the Second Amendment. He invoked that venerable commentator on the English laws, William Blackstone, to contend that what was involved here was “the natural right of resistance and self-preservation.” Was Scalia appealing then to natural right (or natural law)? That jurist, so famously dubious about natural law, was quick to note that the Court had once described Blackstone as “the preeminent authority on English law for the founding generation.”

Well, which was it? Is there a deep principle that makes it rightful for the innocent to defend themselves against armed assailants? Or was that a “right” protected in the Constitution only because it was thought that the Founders followed Blackstone on this point? Breyer was willing himself to fly past any claim to such deep natural rights and convert everything into an argument about “history.” Blackstone, he suggested, was simply of another time, and it was just not enough to invoke his maxims in settling any cases in our own day. That line of Blackstone, said Breyer, “reflected the provision in the English Declaration of Right of 1689 that gave the King’s Protestant ‘subjects’ the right to have Arms for their defense suitable to their Conditions, and as allowed by law.’” Translation: There is no natural right of the innocent to protect themselves”that “right” was simply conferred on some people by the positive law, the law that was “posited” or enacted by the authorities in England. Neither Breyer nor Scalia was comfortable in acknowledging a natural right that would be there even if the positive law had not said the magic words. For both judges, apparently, it was an argument about “history” and the “original understanding” contained in the Constitution.

And yet, the “right to abortion” was not conferred by the positive law. It was conferred by the Supreme Court sweeping away the positive laws that protected the infant in the womb, and overriding them on behalf of a right regarded now by the judges as running even deeper, the right to end a pregnancy. That move seemed to imply then the presence of a natural right, but without supplying its moral substance and its justification. Breyer is convinced that human lives are involved in the right to bear arms, but they are the lives lost in accidents, or in the lives taken as personal quarrels flare into the brandishing of guns. The people who are simply trying to protect themselves against assailants do not seem to register or count for him in the same way. Surely, he must also know that the infants destroyed in abortion are of the same species, quite as human, as the people whose lives he sees threatened by a free-wheeling culture of guns. But he has long made the decision that those lives do not count in the reckoning of things.

And reckoning may be the key. Breyer is addicted to the constant “balancing” of rights. On the one hand we find the concern to protect innocent lives, and that concern may be overborne by a concern for utility: For some reason, the interests of pregnant women are reckoned higher, of more utility, than the lives of the infants yet unknown. And the lives of ordinary folk trying to protect themselves with guns are outweighed by the vision of a world delivered from a culture of violence augmented with guns. But of course the empirical weighting cannot really be done; it is all speculation. Behind all of the deep-dish theories and the pretensions to jurisprudence, there is the brute, unlovely fact that the judges care more about some lives than others. With Justice Breyer the world beckoning to him through his own jural vision is the world of men and women liberated from unwanted pregnancies, and the world that treats as crude and uncultivated the people who are at home with the use of guns. Of course, the world that the rest of us inhabit might be made into a merciless place for the victims screened from his moral vision, but with this consolation: that when the law teaches us, enduringly, not to notice, we will not be any more disturbed than Justice Breyer by the things we no longer notice.

Hadley Arkes is the Edward Ney Professor of Jurisprudence and American Institutions at Amherst College and a member of the First Things editorial and advisory boards. His latest book, Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law , is just out from Cambridge University Press.