Justice Scalia's logic
Having struck one blow for traditional American liberties last week, this week the Supreme Court, again by a 5-4 majority which once again cast Justice Anthony Kennedy in the role of Justice Owen Roberts in 1935-6, delivered, in the person of Antonin Scalia, one of the most extraordinary opinions it has ever handed down. Scalia (like Kennedy) is a Silent, not a Boomer, but the opinion is a piece of Boomer jurisprudence at its worst, showing no respect for either precedent or logic. Although the issues involved are hardly so titanic, it certainly has some parallels to the Dred Scott decision of 150 years ago.
To be fair, any attempt to interpret anything today in light of the Second Amendment faces a serious problem. “A well-regulated militia being necessary to the security of a
Now the problem is that it would be extremely difficult to find any provision of the Constitution that has become as dead a letter as that one. The Third Amendment, which bars quartering of troops in peacetime or in war (except as provided by law), draws considerably less attention nowadays, but we in so sense violate it. The whole theory upon which the Second Amendment is based,
Oddly, neither Scalia nor Stevens nor Breyer addressed that point directly (although Scalia, as we shall see, reinforced it from another angle near the end of his opinion.) Instead, Scalia’s opinion is really based on the idea of a pre-existing right to bear arms to which the Second Amendment, he claims, tangentially refers. The preamble clause, he argues, is not designed to limit the scope of the right to bear arms. That, it would seem, puts a large burden upon him to show where the pre-existing right comes from. He is not very successful, in my opinion, in doing so.
Scalia obviously decided that he need only prove that “arms” in the Second Amendment did not necessarily refer to weapons for use in the militia (certainly a critical point for him since, as we shall see, he eventually had to admit that we do not, and could not, authorize the private possession of militarily useful weapons today.) To do so he cited some early American regulations of the possession of “arms” that clearly did not refer to such weapons. (Several of them refer to servants or slaves and notably are designed not to specify who could possess weapons, but rather those who could not.) He also mentioned that several early state constitutions did guarantee a popular right to “bear arms in defense of themselves and the state.” That,
Scalia then tries to turn the Glorious Revolution precedent to his own ends. Here is the text of that part of the opinion.
Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 31–53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103–106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” 1 W. & M., c. 2, §7, in 3
As we shall see, Scalia will eventually be forced into the position that the right the plaintiff Heller was asserting in this case has nothing to do with politics or government at all, but simply reflects the need for individual self-defense against burglars and such. Yet the precedent he is citing obviously provides less than no support for that position. To begin with, to limit the right to Protestants obviously made it political rather than individual, designed to make sure that a Catholic prince would not deprive them of their rights. And secondly, while this provision of the English Bill of Rights does not mention “militia,” it is obviously designed (in a much narrower and religiously biased way) to do just what the Second Amendment did, namely, to maintain an alternative source of power among at least some of the people to resist executive usurpations of power.
As it turns out, Scalia relies almost entirely upon academic commentaries—those of the English jurist Blackstone and several American successors—to argue that a right to individual self-defense existed. But if it did, shouldn’t it be reflected in dozens, if not hundreds, of Anglo-American legal precedents? Even his own quotations refer to the need to defend liberty against the state, which was not Heller’s concern and does not purport to be the concern of the Natoinal Rifle Association either. With a bow to the left (historically conceived), Scalia also quotes Charles Sumner’s famous speech “The Crime Against Kansas” (conveniently available in a recently published anthology) defending the right of antislavery settlers to defend themselves—but that is not a true legal precedent.
Scalia then comes up with some actual 19th-century court opinions with refer to a general right to bear arms in self-defense, or even to carry them in public, as was so common in the American south in those days and later, of course, in the West. But those cases, ironically, often refer to legislated exceptions to such a right, such as southern laws depriving free blacks of it. Nor does he claim (it would be impossible to do so) that there is any generally recognized right to carry arms in public, a practice that has been forbidden at many times and in many jurisdictions and still is today, although the NRA would apparently like to bring it back. And all the while Scalia keeps fudging a distinction. Many of his cases, like the Second Amendment and the relevant provision of the English Bill of Rights, obviously relate to the political purpose of allowing citizens to bear arms as a check on arbitrary power, but if they do not specifically use the word “militia,” he insists that they confirm that the Second Amendment did not only refer to the right to bear arms so as to serve in a militia. This also applies to some post-civil war cases he cites that tried to confirm the right of freed slaves to bear arms—obviously a political matter as well.
After this lengthy historical survey of cases—none of which has anything to do with keeping a revolver in one’s home for self-defense—Scalia turns to the case which his decision largely overruled, U.S. v. Miller (1939), upholding a ban on the interstate transportation of sawed-off shotguns. He summarizes it thusly, beginning with Justice Stevens' own account of it. (It is an extraordinary feature of Scalia's majority opinion that it spends so much time trying to refute the minority rather than making a case of its own.)
[In Justice Stevens's discussion of] this Court’s decision in
Indeed it does. Amazingly, Scalia adds that the government’s brief in Miller also argued rather strongly that Anglo-American law included no general right to carry weapons for self-defense, a point on which the court did not rule—but exactly the point that his opinion should have been addressing. What is truly amazing,
“It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”
And there we have it—Scalia and the majority’s admission that we are not, and could not possibly, apply the Second Amendment in the sense it was intended today. Citizen armies have no chance against regular armies anymore, and Americans, heaven help them, must rely upon other instruments—principally our legal system—to defend our rights. (Last week we saw that one of the most fundamental of those rights now hangs by the vote of a single justice.) Scalia’s ”interpretation of that right” is that it does not necessarily relate to service in a militia, but he has totally failed to show that it is detached from its broader political significance. But to make any sense out of his decision he has to detach it completely from any such significance, and he proceeds to do so.
As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. [N.B. As I have been trying to show, that is exactly what those quotations did not demonstrate.] The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” would fail constitutional muster.
It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.
This month marked the 40th anniversary of Robert Kennedy’s death, and November will mark the 45th anniversary of his brother’s. It is one of the great ironies of those two events, as I noted at the end of The Road to Dallas, that they indirectly created the pro-gun movement in the