December 19, 2015

To say that Supreme Court Justice Antonin Scalia has created confusion regarding the Second Amendment would be to understate the case. To be sure, others on the Court have subscribed to or restated his views, but his majority opinion in District of Columbia v. Heller [82] led the way, and he has subscribed to the restatements. 

In Heller, in the course of interpreting the Amendment, he rewrote it: by, in effect, expunging the limiting clause, "A well regulated Militia, being necessary to the security of a free State;" by converting the phrase "keep and bear arms" — a militia reference — into "keep and carry arms;" and by reading into the Amendment "the individual right to possess and carry weapons in case of confrontation." The last is a strange principle which suggests that it is good policy to be armed in case an argument might arise. Justice Scalia, like George Will, must have read too many old westerns.[83] 

The Amendment’s statement of purpose, quoted above, was rendered ineffective by labeling it a "prefatory clause," and declaring that it cannot limit the scope of the "operative clause," which is "the right of the people to keep and bear Arms, shall not be infringed." Strait forward textual analysis was abandoned, and replaced by theorizing about what the Amendment should have said. As noted below, what it should have said is an elusive concept.

Moving toward the issue in the case, Justice Scalia’s formula became "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Upon finally reaching the issue, he narrowed the effect of the new interpretation to this ruling: "the District's ban on handgun possession in the home violates the Second Amendment . . . ." 

As he found rights not mentioned in the Amendment, so he found unmentioned restrictions. "[N]othing 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." The last would seem to sanction all manner of restrictions on sale. I wonder if he meant that.[84] 

Until Heller, the Second Amendment had been interpreted far more narrowly. In United States v. Miller,[85] the defendant had been indicted under the National Firearms Act for transporting a short-barreled shotgun in interstate commerce, "not having registered said firearm as required." The District Court held that the Act violated the Second Amendment. The Supreme Court reversed, noting that the Amendment pertains to militias: "With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." In his dissent in Heller, Justice Stevens summarized the Miller holding thusly: "The view of the Amendment we took in Miller — that it 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 — is both the most natural reading of the Amendment's text and the interpretation most faithful to the history of its adoption."

Justice Scalia instead contended that Miller’s reference to militias merely meant that "the type of weapon at issue was not eligible for Second Amendment protection", because it was not a typical militia weapon. "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." That interpretation was based on Miller’s statement that, when called for militia service, "men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." Justice Scalia also took the opportunity to reiterate his revision of the Amendment by asserting that the "traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense." In doing so, he reduced the reference to militias to an arms inventory, and again substituted self-defense as the right protected.

The Miller opinion is not a model of clarity, but Justice Stevens’ interpretation is more persuasive, especially as Justice Scalia’s version creates more problems than it solves.

Given the above reading of Miller, Scalia’s alleged originalism, and his contention that the Amendment must be interpreted against the background of eighteenth-century English law, one might expect him to conclude that only weapons known at the time of ratification would be protected. Early in the opinion, he seemed to reject that: "Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. . . . [T]he Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." Later, he reversed course: "We think that Miller's ‘ordinary military equipment’ language must be read in tandem with what comes after: . . . ‘men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.’ " Again: "We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ . . . We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ See 4 Blackstone 148-149 (1769) . . . ."

How, then, does Justice Scalia protect modern weapons, which were not in common use in the Eighteenth Century, which would be dangerous and unusual compared to those which were? He might argue that modern pistols are "of the kind" used in the Seventeen Nineties, but what of other weapons? Are assault weapons merely the modern form of muskets? Apparently not; following the citation to Blackstone, he said: "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." Well, yes. May they be banned? Perhaps: "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. . . . 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." The "prefatory" clause recedes even further into the background. He may be saying that only handguns are protected, or perhaps adding simple types of rifles. This is the sort of confusion which arises when a court attempts to legislate.

Justice Scalia’s inventive redrafting of the Amendment is anomalous in the light of this statement of his philosophy, also found in Heller: "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad." If he really means that, there must be an exception where future judges think the original scope too narrow.

Justice Scalia ended his opinion with this partial concession: "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." He rejected that approach: "But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home." (The D.C. law was not an absolute prohibition, although it was very restrictive).

In McDonald v. Chicago,[86] the Supreme Court extended the Heller decision to the states. The plurality opinion, written by Justice Alito, and joined by Scalia, at one point more or less accurately recited the holding in that case: "In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense." However, at another point, it slipped in a broadening of the rule: "our central holding in Heller [was] that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home" (emphasis added). Possession of a handgun for protection of hearth and home was expanded to keeping and bearing "arms," apparently of any kind, for lawful purposes, apparently anywhere.

This year, the Court of Appeals for the Seventh Circuit, in Friedman v. City of Highland Park,[87] upheld a municipal ordinance which "prohibits possession of assault weapons or large-capacity magazines (those that can accept more than ten rounds)." The Supreme Court, apparently either believing that Highland Park conforms to Heller, or regretting the latter decision, denied review by a vote of 7 to 2. Justices Scalia and Thomas dissented in an opinion written by Thomas but presumably reflecting Scalia’s views. They recited the expanded McDonald formula: "a personal right to keep and bear arms for lawful purposes," but then declared that Heller "asks whether the law [being challenged] bans types of firearms commonly used for a lawful purpose . . . ."

Now the right is not possession of a handgun in the home (the actual holding of Heller), nor the use of arms by law-abiding, responsible citizens in defense of hearth and home (Heller intermediate formula), nor possessing and carrying weapons in case of confrontation (Heller general formula), nor keeping and bearing arms for a lawful purpose (McDonald), but possessing arms "commonly used for a lawful purpose." Used by whom? The military? The police, very much militarized? Even limiting the reference to the hypothetical law-abiding citizen, that would include assault rifles, which some find necessary in hunting. Indeed, the Highland Park dissent noted that the city ordinance in question "criminalizes modern sporting rifles (e.g., AR-style semiautomatic rifles), which many Americans own for lawful purposes like self-defense, hunting, and target shooting." Perhaps they are, after all, not dangerous or unusual, and merely are modern muskets.

The right may be to possess or it may be to carry ("bear"). The right may be limited to handguns or it may apply to "arms." The right may be limited to law-abiding, responsible citizens, or it may extend to anyone. It may be limited to bearing arms for lawful purposes, or it may cover possession (and carrying?) of arms "commonly used" for a lawful purpose.

Most of the discussion has to do with possession, rather than use, and limits on use are not considered, other than some references to lawful use. The Highland Park dissent apparently would not look to the use in any specific case: the issue merely is "whether the law bans [possession of] types of firearms commonly used for a lawful purpose." Leaving that aside, and assuming that the formula will require "lawful" use, what is the result if a given use is prohibited by local law? Might the Second Amendment override that and, if so, what is the test? Also, consider the stand-your-ground statutes, which encourage shooting people. Has the Court spread the cloak of the Second Amendment over those laws by finding "the individual right to possess and carry weapons in case of confrontation"?

It isn’t clear where the Court is going, which isn’t surprising, as it doesn’t seem to know either.

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82. 554 U.S. 570 (2008)

83. In the Nov. 15, 1993 issue of Newsweek, Mr. Will devoted a long article to a book by someone named Jeffery Snyder whose answer to crime - and, apparently, to mere incivility - is to arm everyone. He cited a line from a science-fiction novel that "an armed society is a polite society." Mr. Will expanded on that by reference to a novel in which the immortal line "When you call me that, smile" is found and declared: "Such was politeness in the armed society of 19th-century Wyoming."

84. I made a more extended comment on in the post of 7/6/08.

85. 307 U. S. 174, 178 (the 1939)
86. 561 U. S. 742, 780 (2010)

87. Decided 4/27/15.