On this day in history, President Richard Nixon nominated Warren Burger to be the 15th Chief Justice of the Supreme Court. Nixon was hoping to turn back the “activist tide” of the Court under Chief Justice Earl Warren. Burger was known as a Nixon supporter, a critic of Chief Justice Warren, and an advocate of a strict constructionist reading of the Constitution. Nevertheless, such a philosophy did not always coincide with conservative interests, as when Burger led the court in the unanimous decision United States v. Nixon (418 U.S. 683, 1974), holding (in the matter resulting from the Watergate scandal) that no person, not even the president of the United States, can be completely above the law, nor use executive privilege as an excuse to withhold evidence that is “demonstrably relevant in a criminal trial.”
Justice Burger retired on September 26, 1986, in part to lead the campaign to mark the 1987 bicentennial of the United States Constitution. He had served longer than any other Chief Justice appointed in the 20th century.
He did not hide from the limelight thereafter however. Most notably, during an interview by Charlayne Hunter-Gault on “The MacNeil/Lehrer NewsHour” (PBS Television Broadcast, December 16, 1991), Justice Burger was asked how he thought the Bill of Rights could be better. He responded:
If I were writing the Bill of Rights now there wouldn’t be any such thing as the Second Amendment, that a well regulated militia being necessary for the defense of the state, that people (have the) right to bear arms. This has been the subject of one of the greatest pieces of fraud – I repeat the word fraud – on the American public by special interest groups that I have ever seen in my life time.”
As legal scholar Cass Sunstein reported, Justice Burger further declared in a speech in 1992: ” . . . the Second Amendment doesn’t guarantee the right to have firearms at all.” In his view, the purpose of the Second Amendment was “to ensure that the ‘state armies’–‘the militia’–would be maintained for the defense of the state. “
Sunstein adds that far from making a reckless statement, “Burger meant to describe what he saw as a clear consensus within the culture of informed lawyers and judges–a conclusion that was so widely taken for granted that it seemed to him to be a fact, and not an opinion at all.”
Alas, times have changed. As law professor Mark Tushnet wrote in 2007 (Out of Range, Oxford University Press), the new dispute over the Second Amendment can be understood as part of the “culture wars” now dividing the country. The pro gun-rights movement is trying to use the imprimatur of the Constitution to bolster its position, and has achieved enormous success, even within the courts.
But the use of the Second Amendment can certainly be seen as a stretch, as Burger maintained. Sunstein writes:
. . . to explore the original understanding of the Second Amendment is to enter an altogether different nation, whose central preoccupations were not at all like our own. In the founding era, many people were fearful of a standing army, and that fear was closely entangled with their support for the right to keep and bear arms . . . as a way of protecting state militias and thus checking the national government.”
Sunstein observes that state militias no longer serve anything like their old role:
As some of the founders hoped and others feared, national defense is undertaken by a professional military, which is the equivalent of a standing army. And if the national government is really determined to oppress us, we won’t be much helped by pistols and rifles.”
“The individual right to have guns,” writes Sunstein … “is best taken as a contemporary creation and a reflection of current fears, not as a reading of the civic-centered founding debates.”
We may learn more of Burger’s views on the subject after 2026, when his papers, donated to the College of William and Mary, will be open to the public. In the meantime, we are assured of hearing more about the ways in which the Second Amendment “guarantees” the right to obtain the means to wreak havoc and death on one’s fellow citizens.