Antonin Scalia and the Clear and Present Danger of Second Amendment Fundamentalism
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. —Second Amendment to the Constitution of the United States.
If you’re looking for someone to blame for the continuing partisan paralysis on gun control after the Orlando bloodbath, I have a candidate for your consideration. And no, it’s not congressional Republicans, or the National Rifle Association, although their fingerprints are all over the country’s inaction in the face of our unyielding epidemic of gun violence.
My nominee is the late Supreme Court Justice Antonin Scalia.
Scalia, who died in his sleep in February while on a hunting trip in Texas, gets my nod as the author of the 5-4 majority opinion in the landmark 2008 decision, District of Columbia v. Heller, which held for the first time that the Second Amendment protects an individual right to bear arms.
Now, of course, I’m not saying that Scalia was in any way directly responsible for the murderous rampage of the Orlando shooter, Omar Mateen, or the perpetrators of the other mass shootings that have ravaged American communities over the past three decades, or even for the lunacy of the gun-waving, Constitution-thumping Cliven Bundy clan and other proponents of the “sovereign citizen” movement.
But on an array of issues ranging from gay rights to gun rights, Scalia brought an incendiary temperament to the bench, and the rhetorical style of a fuming political activist that inspired an almost worshipful devotion from his admirers and discouraged civility, reasoned discourse and, ultimately, respect for law.
Beginning with his appointment to the high court in 1986, Scalia was the intellectual leader of what I and many other legal commentators have termed a conservative “judicial counterrevolution,” aimed at wresting control of the nation’s most powerful legal body from the legacy of the liberal jurists who rose to power in the 1950s and ’60s under the leadership of then-Chief Justice Earl Warren.
Scalia was also a key architect of the jurisprudential theory of original intent—the idea that judges should interpret the Constitution according to the intent of the framers and the purported “original public meaning” of the terminology used in the Constitution.
Heller was his crowning glory. In it, he delved selectively into the archives of colonial history and the early years of the republic to conclude that the framers of the Second Amendment actually intended to protect purely personal gun ownership rights. In doing so, he broke with the great weight of prior scholarship and court opinions, including the Supreme Court’s 1939 decision in United States v. Miller, which had held the amendment protected private gun ownership only in connection with service in long-since antiquated state militia.
Although Heller was technically limited to gun ownership in the nation’s capital and other federal venues, the court extended its individual-rights analysis to the states two years later in the case of McDonald v. Chicago, a 5-4 ruling authored by Justice Samuel Alito, with Scalia concurring—and doubtless lending a guiding hand. Together, the decisions elevated gun ownership in America to the status of a basic national right, alongside free speech, the privilege against self-incrimination, equal protection, due process and other constitutional bulwarks.
In fairness to Scalia, his Heller opinion did not foreclose new gun-control legislation or directly threaten most measures already on the books. In fact, he wrote that the Second Amendment, like all other constitutional rights, is subject to “reasonable regulation.”
But when you hear Republican politicians like Sens. John McCain, Tom Cotton, Marco Rubio and Mitch McConnell, or the National Rifle Association’s loud-mouthed executive vice president, Wayne LaPierre, explain why they oppose even the most modest of new federal reforms, they inevitably invoke an ideology of Second Amendment fundamentalism animated by Scalia and Heller.
Like its religious counterpart, gun-rights fundamentalism views society through a simplistic filter, populated, in LaPierre’s nauseating catchphrase, by “good guys” and “bad guys.” The armed citizenry is mythologized and lionized. Government regulation—especially at the federal level—is met with suspicion, paranoia, fear and, whenever possible, rejection.
To be sure, there are important economic factors that also undergird the largely Republican opposition to gun control. The NRA’s campaign contributions, lobbying and ad budget are enormous, and its determination to defeat hostile candidates at the polls is legendary.
But it is the fundamentalist ideology that gives the gun-rights camp respectable public cover in the face of one mass shooting after another, and which, thanks to Scalia, endows it with the imprimatur of constitutional law.
It would be one thing if Scalia had gotten the historical analysis of the Second Amendment correct in Heller. But the tragic fact is that he got it so thoroughly wrong.
As former Justice John Paul Stevens noted in his lengthy dissenting opinion in Heller, Scalia’s exegesis not only rendered the opening “militia clause” of the Second Amendment meaningless, but he also distorted and underplayed the importance of the actual debates conducted during the founding era on the amendment’s purpose and meaning. Those debates, Stevens forcefully argued, focused not on personal gun ownership but on the state militia, which the founders viewed as an antidote to a burdensome and potentially oppressive permanent standing federal army. The militia were seen as the best means for “providing for the security of a free State” against popular insurrections like Shay’s rebellion, the anti-tax uprising of Massachusetts farmers of 1786-87 that exposed the weaknesses of the fledgling national government as constructed under the Articles of Confederation.
In the end, the Second Amendment was worded as a federalist compromise, with the states retaining their right to organize militia and other provisions of the Constitution (for example, Article II, Section 2), clarifying that ultimate control over the militia would vest in the executive branch of the federal government. Personal gun ownership rights were left, as they had been during the colonial period, to the police powers of local government.
Following Heller, Scalia’s scholarship was widely panned by respected historians such as Jack Rakove of Stanford University for its “faulty rethinking of the Second Amendment” and Saul Cornell of Fordham University for being “a constitutional scam” and “an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution’s original meaning.”
That Scalia got it so wrong matters not just to students of constitutional law, but also to everyday people who want to prevent the next Mateen or Dylan Roof from getting their hands on easily acquired firearms.
Although Maine Sen. Susan Collins, a Republican, has introduced a still-pending bill that would prevent those on the government’s “no-fly” list from buying guns, no new federal gun-control legislation has been passed by both houses of Congress since Heller. And since McDonald, the Supreme Court has refused to hear another Second Amendment case, in which Heller’s analysis might be reversed or narrowed.
Instead, we have a patchwork system in which some states, such as Connecticut, California and New York, have adopted tough restrictions on semi-automatic weapons and the issuance of concealed- and open-carry gun permits, while many others, including Texas and Florida, make it possible to obtain AR-15s in less than 10 minutes.
So if you’re looking for someone to blame for our collective impotence in response to the madness of gun violence in America, by all means point an accusing finger in the direction of Congress and the NRA. But don’t forget to include the departed Antonin Scalia, who gave gun rights the blessing of the Constitution and the highest court in the land.