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 free state,” it reads, “the right of the people to keep and bear arms shall not be infringed.” As both Scalia and his dissenters (Justices Stevens and Breyer) point out, this amendment, like many of the rest of the Bill of Rights, was written to meet historically based objections to the original constitution that had emerged during ratification debates. The Founding Fathers had already inserted a protection against a national standing army by restricting any appropriation for such to a maximum period of two years, but that did not satisfy everyone. Some wanted to ensure that a permanent militia large enough to resist the encroachments of the central power would always continue to exist—and many remembered the attempts of the British Kings Charles II and James II to disarm Protestant militias on the eve of the Glorious Revolution of 1688, which had given British subjects many of the same rights. For that reason the Second Amendment was passed.

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, however, is no longer anything but a historical curiosity in the United States except among a few rural Americans of politically marginal views who still expect a militia to restrain the federal government. The militia is the ancestor of today’s National Guard, which a few southern Governors in the 1950s and 1960s did try to use to restrain federal power to insist upon integration, but which (as they found) is ultimately under the authority of the President anyway. We have no body designed to resist federal encroachments, and we have no plans to have one. The Second Amendment has become, in a sense, an irrelevance—it has in effect been repealed for lack of interest, because the people of the several states, whom it was designed to protect, no longer care about its actual purpose.

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, however, does not seem to me to be of much help to him. Some states codified such a right (always, one might note, a minority), while others did not. Neither did the authors of the Second Amendment, suggesting that such a right was none of their concern. Scalia’s rather novel argument is that because some of them mentioned it, all of them believed in it.

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 Eng. Stat. at Large 441 (1689). This right has long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights and What It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle). It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament. See Schwoerer, To Hold and Bear Arms: The English Perspective, in Bogus 207, 218; but see 3 J. Story, Commentaries on the Constitution of the United States §1858 (1833) (hereinafter Story) (contending that the “right to bear arms” is a “limitatio[n] upon the power of parliament” as well). But it was secured to them as individuals, according to “libertarian political principles,” not as members of a fighting force. Schwoerer, Declaration of Rights, at 283; see also id., at 78; G. Jellinek, The Declaration of the Rights of Man and of Citizens 49, and n. 7 (1901) (reprinted 1979).

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 19^th-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 United States v. Miller, 307 U. S. 174 (1939). “[H]undreds of judges,” we are told, “have relied on the view of the amendment we endorsed there,” post, at 2, and “[e]ven if the textual and historical arguments on both side of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself . . . would prevent most jurists from endorsing such a dramaticupheaval in the law,” post, at 4. And what is, according to JUSTICE STEVENS, the holding of Miller that demandssuch obeisance? That the Second Amendment “protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature’s power to regulate the nonmilitary use and ownership of weapons.” Nothing so clearly demonstrates the weakness of JUSTICE STEVENS’ case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [shortbarreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” 307 U. S., at 178 (emphasis added). “Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Ibid. Beyond that, the opinion provided no explanation of the content of the right. This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. JUSTICE STEVENS can say again and again that Miller did “not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns,” post, at 42–43, but the words of the opinion prove otherwise. The most JUSTICE STEVENS can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General’s argument (made in the alternative) that the right was collective, see Brief for United States, O. T. 1938, No. 696, pp. 4–5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

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, however, is what happens to the whole issue of the kind of weapon involved when Scalia gets down to his conclusion.

“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.

Presto! Without any substantial basis in common law precedent and in total defiance of virtually every discussion of the Second Amendment and of its language, a right to the defense of one’s home with firearms has been created out of nowhere. And why should it extend to handguns? Scalia’s answer reads as if it had been written in the offices of the NRA.

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.

Americans are entitled to handguns because they like them. I cannot help but note that that is exactly the argument Scalia rejected a couple of years ago with respect to sex between consenting adults. Nor can I forbear to note that burglars and intruders are, of course, a tiny fraction of the Americans killed by handguns in American homes. The vast majority of such deaths involve murders of family members and acquaintances, and suicides.

This month marked the 40^th anniversary of Robert Kennedy’s death, and November will mark the 45^th 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 United States, by getting liberals interested in the restriction of firearms. In the same way, Roe v. Wade created the powerful anti-abortion movements. Those two lobbies, in alliance now with virtually the entire Republican party, have mounted a legal/political campaign parallel in its length and intensity to the civil rights movement of the first two-thirds of the twentieth century in an effort to enshrine their views. The NRA has now succeeded and abortion rights law is also hanging by a thread. But ironically, the evidence of Judge Scalia’s opinion suggests—to me at least—that traditional Anglo-American gun rights have always had a mainly political significance and that no right to firearms for personal self-defense has ever been recognized. If it had, he could have written a better opinion.