Justice Scalia and The Second Amendment

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.

The Second Ammendment of the United States Constitution

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Conservative Republican President Ronald Reagan nominated Antonin Scalia to the Supreme Court in 1986. Scalia believed that we should put our modern-day personal preferences aside and refer to the text and original understanding of the language used by the Founders to determine the constitutionality of laws today.

Scalia insisted that the interpretation of the Constitution should not be subject to

“whimsical change … by five out of nine votes on the Supreme Court who decide that it ought to mean something different from what the people voted on when they – when they ratified the provision of the Constitution…”

Associate Supreme Court Justice Antonin Scalia

In a discussion about the First Amendment, Scalia said,

“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag… But I am not king.”

Associate Supreme Court Justice Antonin Scalia

When current Justice Elena Kagan was Dean of Harvard Law School., she said of Scalia,

“His views on textualism and originalism, his views on the role of judges in our society, on the practice of judging, have really transformed the terms of legal debate in this country… He is the justice who has had the most important impact over the years on how we think and talk about law.”

Associate Justice Elena Kagan when Dean of Harvard Law School

Scalia’s Originalism is a legal doctrine, but it could also serve as the common ground of American political conservatism. Stress on ‘could’.

District of Columbia vs Heller

District of Columbia had passed a law that banned handgun possession by making it a crime to:

• carry an unregistered firearm
• prohibited the registration of handgun
• required D.C. residents who owned legal firearms to keep those weapons unloaded and dissembled or otherwise disabled by trigger lock or some similar device

Dick Heller applied to register a handgun to keep in his home. D.C. authorities refused his application. Heller filed a lawsuit on Second Amendment grounds. D. C. Circuit held that the Second Amendment protects an individual’s right to possess firearms and that the D.C. law violated that right. Scalia wrote the majority opinion of the Court, affirming the decision. He was joined by Roberts, Kennedy, Thomas, and Alito. Stevens, Souter, Ginsburg, and Breyer filed a dissenting opinion.

Scalia’s Majority Opinion in Heller

Scalia’s decision in District of Columbia v. Heller held that

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home…

District of Columbia v. Heller

The decision determined that handguns are “arms” for the purposes of the Second Amendment, and struck down the requirement that firearms must be kept “unloaded and disassembled or bound by a trigger lock.”

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution… The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”

District of Columbia v. Heller

Scalia later referred to his majority opinion in Heller as the “vindication of originalism.”

When I first came on this court, I was the only originalist. counsel would not even allude to original meaning… They would cite the last Supreme Court case.

Associate Supreme Court Justice Antonin Scalia

Militia vs individual

How did Scalia determine that the Second Amendment applies to individuals rather than just militias like the National Guard?

Nowhere else in the Constitution does a ‘right’ attributed to ‘the people’ refer to anything other than an individual right.

District of Columbia v. Heller

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

District of Columbia v. Heller

Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem… That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

District of Columbia v. Heller

The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.

District of Columbia v. Heller

Reasonable Limitations and Undeniable Public Safety Concerns

Is the Second Amendment an absolute right? Scalia said no.

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not[.]

District of Columbia v. Heller

Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

District of Columbia v. Heller

Scalia’s opinion in Heller would not undo “longstanding prohibitions” on firearms regulations.

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

District of Columbia v. Heller

The discussion added that The Second Amendment is,

… like other constitutional rights: It’s subject to exceptions, some of which are derived from history, and to regulations that further certain important government interests. Courts continue to give considerable weight to the undeniable public safety concerns that animate most gun regulation.

District of Columbia v. Heller

Second Amendment Concerns Today

Before the Supreme Court currently is New York’s “proper cause law,” which requires those who apply for a license to carry a concealed weapon must show their need for self-defense. The ‘Proper Cause’ law is being challenged by the New York State Rifle and Pistol Association, which is an arm of the National Rifle Association, and two men who were denied the right to carry firearms in public for the purpose of self-defense.

Richard Dearing, the chief of appeals for New York City said,

I don’t think we can forget that we are talking about an instrument that is designed to kill people”, and that… the public safety considerations are so tremendous and varied on the side of gun regulation in a way that is not equally true of other rights.

Richard Dearing, Chief of Appeals for the City of New York

Conservative Republican President Ronald Reagan had almost nothing in common with conservative Republican President Donald Trump. Reagan and Scalia are gone. Trump appointed three justices to the Supreme Court. Are today’s Supreme Court conservative majority also constitutional originalists like conservative icon Antonin Scalia? Or will their legal ‘conservatism’ be as starkly different as Trump’s political version?

Sources:
https://www.law.cornell.edu/wex/second_amendment
https://www.nationalreview.com/2020/10/antonin-scalia-lasting-influence/
https://constitutioncenter.org/blog/justice-antonin-scalia-rails-again-about-flag-burning-weirdoes/
https://www.theatlantic.com/politics/archive/2016/02/what-made-antonin-scalia-great/462837/
https://www.theatlantic.com/politics/archive/2016/02/what-made-antonin-scalia-great/462837/
https://constitutioncenter.org/blog/justice-antonin-scalia-rails-again-about-flag-burning-weirdoes/
https://www.npr.org/2016/12/29/507436655/reflections-of-conservative-icon-supreme-court-justice-antonin-scalia
https://www.politico.com/magazine/story/2016/02/antonin-scalia-how-he-changed-america-213631/
https://www.law.cornell.edu/supct/html/07-290.ZS.html
https://constitutioncenter.org/interactive-constitution/blog/on-this-day-a-divided-supreme-court-rules-on-the-second-amendment
https://constitutioncenter.org/interactive-constitution/blog/on-this-day-a-divided-supreme-court-rules-on-the-second-amendment
https://www.scotusblog.com/2008/06/heller-quotes-from-the-majority/
https://www.vox.com/the-big-idea/2018/5/23/17383644/second-2nd-amendment-gun-control-debate-santa-fe-parkland-heller-anniversary-constitution
https://www.npr.org/2021/11/03/1049380749/gun-rights-supreme-court-arguments-new-york
https://www.npr.org/2021/11/03/1049380749/gun-rights-supreme-court-arguments-new-york

Thanks and a tip of the hat to DonkeyHotey for the image of Justice Scalia. See more of DonkeyHotey’s art at https://www.flickr.com/photos/donkeyhotey/.