Heller Might Not Have Been Had Some Nominations Gone Differently

AP Photo/J. Scott Applewhite, File

The Supreme Court of the United States, or SCOTUS, gave Second Amendment advocates a lot of breathing room. While the Heller decision wasn’t perfect, it did at least find that the Second Amendment was an individual right, something that was long contested for some ungodly reason.


Now, Heller is established as a benchmark decision. While it’s routinely ignored by the lower courts, I expect we’ll soon see some of those cases come up and get smacked down hard.

Yet over at The Volokh Conspiracy, law professor Josh Blackman plays a little “what if…?” game and find that Heller could have gone very differently.

In 2005 and 2006, two vacancies arose on the Supreme Court. President Bush initially picked John Roberts for the O’Connor seat, but then elevated Roberts to the Chief seat after Chief Justice Rehnquist died. (I sometimes dream what would have happened if Rehnquist hung on a few more months, and we got Chief Justice Alito). Bush tapped Harriet Miers for the O’Connor seat. After an outrage, Bush picked old-faithful Sam Alito for that position. Still, we know from The Nine and Supreme Conflict that Bush considered two other Fourth Circuit judges: Judges Luttig and Wilkinson.

First, in 2008 Judge Wilkinson attacked Heller in the Virginia Law Review. He wrote, “The Roe and Heller courts are guilty of the same sins.” It is impossible to know whether a Justice Wilkinson would have viewed the case differently. But I am skeptical. I think he would have cast the fifth vote to uphold the D.C. law. There would have been an obsequious defense of judicial restraint.

Second, let’s consider Judge Luttig. After he lost his chance at the Supreme Court, he stepped down to become General Counsel at Boeing. From time to time, Luttig would publish an op-ed. Eventually, he got on Twitter and opined on several Trump-related controversies. Luttig had the cachet of a Republican federal judge, so people paid attention to him. But to my knowledge, Luttig never weighed in on the Second Amendment. Until now. Today, he filed an amicus brief supporting New York in NYS Rifle. He was joined by Peter Keisler, Carter Phillips, Stuart Gerson, and host of other people former Republican officeholders.


In other words, Heller could look very, very different today.

As it is, it’s more constraining on gun rights than many of us, myself included, would like. However, it also bars a lot of stuff that many in the government would love to do. In fact, I’ve long argued that Heller actually precludes an assault weapon ban. After all, the decision said you can’t ban an entire class of firearms that’s in common use, and the most popular firearm model in America is most definitely in common use.

I’ve given more than a little guff to Chief Justice John Roberts, but the truth of the matter is that as bad as I might think he is, it might have gone down very differently. Our Second Amendment rights might have ended up being severely limited by the courts. While individual states might still preserve Second Amendment rights, the fact that SCOTUS decided they didn’t actually have to would embolden many anti-gun states.

As it is, they don’t show much restraint, but with a supportive SCOTUS decision, they might have begun running rampant over people’s Second Amendment rights.

And both of these men were almost nominated. If very easily could have gone precisely that way.


It kind of makes me think I need to offer Roberts an apology.

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