Robert Bork's Second Amendment

Readers of Law and Liberty may have noticed that I am a fan of Justice Antonin Scalia (for example, here and here). I am also an admirer of Robert H. Bork, whom my colleague John McGinnis has described as “the most important legal scholar on the right in the last 50 years.” Bork was a pioneer in both the field of antitrust law (with his influential 1978 book The Antitrust Paradox) and constitutional law, as the father of what we now call “originalism.” In his seminal 1971 article in the Indiana Law Journal, entitled “Neutral Principles and Some First Amendment Problems,”[1] and in his later best-selling books, The Tempting of America (1990) and Slouching Towards Gomorrah (1996), Bork eviscerated the “noninterpretive” theories of constitutional law that dominated the legal academy in the 1960s and 1970s.

For his heresy, and in particular for his outspoken opposition to the judicial recognition of unenumerated rights such as the right of “sexual privacy” in Griswold v. Connecticut[2](the precursor of Roe v. Wade) Bork was shamefully denied confirmation to the U.S. Supreme Court 30 years ago today, on October 23, 1987.

The Bork hearings before the U.S. Senate Judiciary Committee were an unseemly spectacle, surely one of the most disgraceful episodes in the Senate’s history. Less than an hour after President Reagan announced his nomination of Bork, Senator Ted Kennedy (D-Mass.) made one of the most demagogic speeches ever delivered on the Senate floor, accusing Bork of favoring “back-alley abortions,” segregated lunch counters, “rogue police” conducting midnight raids, and similar scurrilous charges.

The nominee later pointed out that “Not one line of that tirade was true,” and many people on the Left knew it, but at the time the anti-Bork sentiment among liberal interest groups was so strong that the media uncritically repeated Kennedy’s (and others’) calumnies. Only upon Kennedy’s death in 2009 did journalists begin to acknowledge that his smear of Bork was entirely false. “But it worked,” as a writer for the Economist noted.

Consider that, had this worthy candidate been seated on the Court  in 1987, Anthony Kennedy would not have been nominated and would probably still be sitting in semi-obscurity on the Ninth Circuit bench. On the High Court instead of Kennedy for a quarter-century, Bork would have been aligned with its conservative bloc in most cases. Accordingly, the past 30 years of constitutional law would likely have turned out quite differently: Instead of 5 to 4 decisions protecting flag-burning, gay rights and same-sex marriage, and continuing the scourge of abortion, the opposite would have occurred.

As a justice, Bork would likely have been a more conservative (but less sarcastic) version of Scalia—less sympathetic to criminal defendants, not as deferential to administrative agencies, and with a narrower conception of the First Amendment than Scalia’s. Although no one can be certain, one case stands out as an example of an important constitutional law decision in which a conservative result might have been decided differently under Justice Bork: District of Columbia v. Heller, [3] the landmark 2008 case recognizing, for the first time, an individual right to keep and bear arms pursuant to the Second Amendment.

Heller, authored by Scalia, was a 5 to 4 decision in which Kennedy joined the conservatives (Roberts, Thomas, and Alito) instead of the liberal bloc of Stevens, Breyer, Souter, and Ginsburg. While Heller is usually praised by originalists, it was (and remains) a controversial decision.

Why do I suggest that Bork might have voted differently from Kennedy? 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.”[4] 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.

In fact, Bork’s skepticism regarding the gun lobby’s advocacy of individual rights under the Second Amendment (shared by former Chief Justice Warren Burger) may have been the reason the National Rifle Association chose to remain neutral during Bork’s 1987 confirmation hearings. Moreover, Bork might have been reluctant to overrule (or distinguish into irrelevance) the arguably contrary precedent in United States v. Miller[5], which is what  the majority in Heller did. It appears that Bork construed Miller the same way Justice Stevens’ dissent in Heller did: as ruling that the Second Amendment confers a collective, not an individual, right. The way he put it in Slouching Towards Gomorrah (12 years before Heller) was: “The Supreme Court has consistently ruled that there is no individual right to own a firearm.”

None of this is conclusive, of course. Historical analysis of the Second Amendment in recent years has greatly increased our knowledge regarding its original meaning. It is possible that a Mr. Justice Bork, had he read the briefs and listened to the oral argument in Heller, would have been persuaded to join Scalia’s majority opinion—as in fact Anthony Kennedy did. Musing about an issue in a broadly focused book is not the same as reaching a decision in a concrete case. Still, Bork was a clear thinker who was stubbornly committed to principle. For decades, he decried judges’ overriding democratically enacted laws based on fanciful interpretations of vague constitutional text in their pursuit of  a  policy result they find desirable.

I’m not an expert on the Second Amendment, or the Heller decision, but it is ironic to think that liberals—by trashing the reputation of the highly honorable Robert Bork in the Judiciary Committee three decades ago—may have ensured a legal outcome they now deplore. If so, on the 30th anniversary of Bork’s defeat in the Senate, we should include the Heller decision as part of his considerable legacy.

[1] 47 Indiana Law Journal 1 (1978).

[2] 381 U.S. 479 (1965).

[3] 554 U.S. 570 (2008).

[4] Robert Bork, Slouching Towards Gomorrah (HarperCollins, 1996) p. 166.

[5] 307 U.S. 174 (1939).