Partway through the majority opinion in New York State Rifle & Pistol Association v. Bruen, in which the United States Supreme Court struck down a century-old state law restricting the carrying of handguns in public, one is struck by the realization: these people are guided by no coherent judicial philosophy whatsoever.
The case is one of a handful of rulings in the past few weeks – on school prayer, on environmental regulation, and of course on abortion – with which the conservative majority on the court has begun to rewrite decades of jurisprudence. But in its recklessness, in its single-mindedness and above all in its determined opportunism can be found the seeds of the others.
In Dobbs v. Jackson Women’s Health Organization, the decision that overturned Roe v. Wade, the majority purported to show that a constitutional right that previous Supreme Courts had long held to exist did not in fact exist. In New York State Rifle, the majority’s objective was the contrary: to conjure a near-absolute right, not only to keep a gun at home but to carry it about, out of the Second Amendment’s vague provision for a “well-regulated militia.”
The majority opinion is notable less for its conclusion than its reasoning. The Court explicitly ruled out any attempt to balance means against ends – to weigh the good that might be achieved by gun restrictions against the harm to Second Amendment rights. Such analysis is common in U.S. courts with respect to other rights; the Court has now made a special exception when it comes to guns.
Here, it insists, the only matter to be examined is whether such restrictions are consistent with the “historical traditions” of the United States. The Court’s basis for this exclusively history-focused approach is that, while means-ends analysis embroils judges in murky discussions of sociological data and the like, there exists a broadly shared understanding of the history of these things that one can simply look up – an assumption it promptly invalidates by its own obvious cherry-picking of the historical record.
The Court adopts this approach, then, in part because it wants to: because it yields the results it prefers. But it is also because it can – because there is no legal requirement for U.S. courts to consider whether and to what extent there might be sensible exceptions to the rights so ringingly guaranteed by the U.S. Constitution. They do, of course, but they are basically freelancing.
In free speech cases, for example, U.S. courts will often simply declare that the speech in front of them is not speech, or not the sort of speech the framers intended to protect. Means-ends analysis is likewise applied on a sliding scale depending on whether the matter at hand is held to touch on the “core” of a right or the periphery. When it comes to gun rights, as the Supreme Court has now instructed, it will not be applied at all.
Consider, by happy contrast, the example of the Canadian Charter of Rights and Freedoms, and its first section: the famous “reasonable limits” clause.
The key to “reasonable limits” is that it is itself reasonably limited. Charter rights, it says, are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Those words – “only” and “demonstrably justified” – are critical. The onus is always on the state to justify a given limitation on rights, and the right can be limited only so far as this is demonstrated.
Compare an earlier draft of the clause, which allowed such limits as were “generally accepted” in a free and democratic society. Or compare the language of the European Convention on Human Rights, which allows exceptions if they are “necessary.” Again, a much less stringent standard.
What is “demonstrably justified” was further codified in Regina v. Oakes, an early Charter case. The limitation must have a “pressing and substantial” objective to which it is “rationally connected”; it must impair rights as little as possible; and the harm to rights must be proportional to the good achieved.
The Oakes test doesn’t guarantee sensible decisions: judicial fallibility has not yet been abolished. But as a template for “structured compromise,” it may be the best attempt at balancing individual rights and the public good yet devised.
That’s not only a matter of law. The U.S. Supreme Court has become a major source of division between Americans, in part because the stakes are so high: the consequences for rights are starkly different depending on who controls the Court.
Reasonable limits, by contrast, invites our courts to make the sorts of moderate course corrections that, even as they curb Parliament’s worst excesses, leave it clear that Parliament is the prize.
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Andrew Coyne