Scalia restored right to bear arms

[Allegiance]

Scalia restored right to bear arms: Randy Barnett

Randy E. Barnett 8:27 a.m. EST February 17, 2016

Supreme Court Justice's 'new originalism' refinement led to landmark 'Heller' decision.

I feel a powerful sorrow at the death of Antonin Scalia. Because he was still at the height of his powers, and showed no sign of illness or old age, his passing feels more like an assassination than a natural part of the process that claims us all. Just last fall, he visiting Georgetown Law, as he has so many law schools, to speak to and take questions from our first year students. It seems like yesterday he visited my seminar to discuss the book he co-authored, Reading Law: The Interpretation of Legal Texts.

Not that I always agreed with him. When I argued the medical marijuana case of Gonzales v. Raich in the Supreme Court, I faced a pretty hot and hostile bench. But while his demeanor toward me was respectful, his questions were the toughest for me to handle that morning. Naturally, I was deeply disappointed when he sided with the progressives on the Court to uphold the application of the federal Controlled Substances Act to those who grew marijuana for themselves for medical purposes as authorized by state law. And in 2010, I was disappointed that he did not concur with Justice Clarence Thomas’s use of the original meaning of the Privileges or Immunities Clause to apply the right to keep and bear arms to the states.

But despite our disagreements, I always respected him as a jurist who strived, however imperfectly, to put the rule of law ahead of his own political preferences. He was never the right-wing bogeyman his critics made him out to be. I will miss him, but American constitutional law will never forget him.

If they make any lasting contributions at all, Supreme Court justices typically make them from the bench in their opinions — perhaps most importantly in their dissents in which they can speak with their own voice and not for a committee of their fellow justices. But Scalia made a much larger contribution to the approach to constitutional interpretation that is today called “originalism.” No single person did more to make "originalism" the constitutional theory to beat than Antonin Scalia.

The term “originalism” was actually coined in 1980 in a law review article by then-Stanford Law professor Paul Brest in which he criticized scholars and others who claimed that the text of the Constitution should be interpreted according to the original intentions of its drafters, who are referred to as “the framers.” Then, in 1985, in a highly publicized and controversial speech to the American Bar Association, Ronald Reagan’s Attorney General, Edwin Meese powerfully defended what he called, “a Jurisprudence of Original Intention.”

 

As Meese recalls, behind the scenes, Scalia — then a judge on the D.C. Circuit Court of Appeals — objected that this version of originalism was wrong. Rather than search for the original intention of the framers of the Constitution, Scalia maintained that we should instead be identifying the “original public meaning” of the text as it would have been understood at the time of its adoption. More than any other, this single refinement obviated many of the objections that had been made to originalism in the 1980s by living constitutionalists like Brest and others. In the 1990s it led to what is now sometimes called “the New Originalism.”

Having shaped the theory itself, Scalia then employed it in one of the most important cases of our lifetime: the 2008 case of District of Columbia v. Heller, which restored a previously lost clause of the Constitution: the Second Amendment. Since the 1960s, gun control advocates — who were rarely originalists themselves — had been contending that the right to keep and bear arms in the Second Amendment solely protected what they called a “collective right” of states to have a militia. And most lower federal courts of appeals then adopted this view when considering newly-enacted gun control measures. Then, starting in the 1980s, originalist scholars began pushing back with evidence that, like the rest of the Bill of Rights, the amendment protected the fundamental right of individuals to own, possess, carry and use firearms, subject to the reasonable regulation thereof.

When the District of Columbia’s ban on the private possession of handguns was declared unconstitutional by the D.C. Circuit Court of Appeals — one of the few circuits that had not adopted the collective rights reading of the Amendment in the 60s and 70s — the issue of the Second Amendment’s meaning came squarely before the Supreme Court.

 

Because Scalia accepted what is called the doctrine of “stare decisis” or precedent, in which the court generally follows its previous decisions, he was far more reluctant than his fellow originalist colleague, Justice Clarence Thomas, to revisit previous nonoriginalist decisions of the court that had gotten the meaning of the Constitution wrong. But since the Supreme Court had addressed the meaning of “the right to keep and bear arms” protected by the Second Amendment just once in its history — in a cursory and somewhat cryptic 1930s opinion — he could reach the question of original meaning unencumbered by precedent.

In a sweeping and masterful opinion, Scalia systematically presented and analyzed the evidence that established — to my mind conclusively — that the “right to keep and bear arms” was an individual right that merited the same protection as the First Amendment’s freedoms of speech, press and assembly. It was not enough that the District of Columbia claimed its complete ban on handguns was “reasonable.” As with other fundamental constitutional rights, he concluded, that claim must be judicially scrutinized. And the district handgun ban failed that scrutiny.

Perhaps as significant as the decision itself, by the time Heller was decided, all nine of the justices felt the need to approach the meaning of "the right to keep and bear arms" from an originalist perspective. In his dissenting opinion, Justice John Paul Stevens, joined by the other three “progressives,” abandoned the “collective right of states” reading in favor of a newly-minted theory that, with the Second Amendment, the framers intended to protect the individual right of a citizen to bear arms in an organized militia.

 

Like all opinions, Justice Scalia’s in Heller was not perfect –— in particular in its handling of what was a “reasonable regulation” of the right. But it nevertheless was the culmination of his ambition to place the original meaning of the text at the center of constitutional law. He had prevailed in a way that few justices ever do.

Of course, Antonin Scalia did so much more than these two things and there is good reason why he is likely the most discussed justice in every constitutional law course taught in the U.S. His dissents are crystal clear, accessible, engaging, sometimes caustic and always provocative. He freely admitted he wrote them for law students to read, not for his fellow justices. And, as I teach my students, even his 2005 concurring opinion in the Raich case is much better reasoned than the majority opinion of Justice Stevens that Scalia refused to join.

But if these two things were all he had done — improved the theory of originalism and shepherded its eventual adoption by the Supreme Court to restore an entire amendment in the Bill of Rights — Antonin Scalia would still be among the most impactful justices in our history. His shoes will be very difficult for anyone to fill, but he has set a powerful example for future generations of judges to follow.

 

[Colonel Dan, SASS #24025]

[Gunner Gatlin, SASS 10274L]

Praying that his seat gets a worthy and wise successor who can continue his work.

 

GG ~