This past week, many conservatives mourned the loss of Antonin Scalia, the Supreme Court justice who was the father of “originalism,” a rubric for interpreting the Constitution as a dead letter as opposed to an evolving document.
Scalia died last Saturday, while on a quail hunting trip at the Cibolo Creek Ranch in Shafter, Texas. He was 79. Reports say he died of “natural causes” while sleeping. No autopsy was performed, and there were “no signs of foul play,” according to the county sheriffs who arrived on scene.
While Scalia certainly has a special place in the hearts of many right-wingers, he also has a special place in the hearts of many gun owners, that is because he penned what is arguably the most important Supreme Court ruling on the Second Amendment in recent history.
In the landmark case Distict of Columbia v. Heller, Scalia wrote the (5-4) majority opinion which found that the Second Amendment was an individual right not contingent upon militia service. This was HUGE! For obvious reasons. Gun-grabbers have long argued (and continue to argue) that the 2A is a right that was conferred only within the context of militia service, ergo if you or I did not belong to a civilian militia, we did not have an un-infringeable right to keep and bear arms.
This ass-backward reading of the Second Amendment was very troublesome, but it prevailed for years, until Heller, and it allowed certain big cities and federal enclaves, e.g. D.C., to enact various draconian gun laws, including bans on handguns and concealed carry.
But after Heller, after it was made clear that the Second Amendment was, indeed, an individual right, everything changed. It was a watershed moment. Gun prohibitions began to fall like dominos. State and municipal governments who wished to limit one’s right had to reckon with the gravity of Heller (and McDonald v. Chicago, which extended the Heller decision to all the states in 2010). It didn’t take long for anti-gunners to realize that they were now fighting a losing battle. The 2A was here to stay!
Yet, it wasn’t all good news. Scalia, in the majority opinion, unfortunately, left the door open for narrowly tailored restrictions on the Second Amendment:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing 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.
Adding in a footnote, “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”
An honest look at this implies that the government can still create gun-free zones, regulate the firearms industry and, although it’s not explicitly stated, pass laws limiting gun ownership — remember, what was mentioned was not “exhaustive.” Take, for instance, the issue de jour, bans on black rifles. Are those supported by Heller?
The answer is, well, it’s not quite clear. Heller states that the Second Amendment protects weapons “in common use at the time” and that this frame of reference is supported by the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”
The key questions courts are now debating is whether AR-15s, AK-47s and others are “in common use” or whether they are considered to be “dangerous and unusual.” With 5 million or more black rifles in circulation, one can safely conclude that they are commonly owned and widely popular. But since Heller didn’t explicitly address this question, gun-grabbers have seized on the opportunity to exploit this loophole.
This was something Scalia was keenly aware of. In the interview with Fox New’s Chris Wallace, he explains how this particular issue will “have to be decided.”
“Yes, there are some limitations that can be imposed,” Scalia, said. “What they are will depend on what the society understood was reasonable limitation” during the founding and framing of the Constitution. Scalia gave a historical example, a “head axe,” which was banned under an affrighting statute that prohibited weapons designed to intimidate and/or scare people.
Wallace then asked about high-powered black rifles, which can fire “a hundred shots in a minute,” and whether or not those can be banned by state governments and municipalities without violating one’s right to keep and bear arms.
“The [2nd Amendment] does not apply to arms that cannot be hand-carried.” Scalia said. “It’s to keep and bear. So, it doesn’t apply to cannons. But I suppose there are handheld rocket launchers that can bring down airplanes that will have to be — it will have to be decided.”
Scalia knew that there was unfinished business. He knew the high court would have to take up a case addressing this specific issue. In fact, this past December, the high court passed up an opportunity to take on such a case, to the dismay of both Scalia and justice Clarence Thomas.
The case involved an Illinois city’s gun ban that prohibits the sale, purchase and even possession of “assault weapons” as defined by local Highland Park law. Included on that list of banned items were AR-15s, AK-47s, AK-pattern rifles by name, you know, the usual suspects.
The high court did not give a reason on why it rejected the case, but in a 6-page dissent, written by Thomas and signed by Scalia, the two men made their displeasure known.
“Based on its crabbed reading of Heller, the Seventh Circuit felt free to adopt a test for assessing firearm bans that eviscerates many of the protections recognized in Heller and McDonald,” wrote Thomas. “If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing.”
Scalia (and Thomas) wanted to set the record straight. He wanted to take Heller to its logical conclusion, which is to protect the millions of black rifles in common use. Sadly, he will not have that chance. It’s a case of unfinished business.
Looking ahead, president Obama will likely appoint someone to replace justice Scalia. Yes, given the 5-4 split decision on Heller, I know what your thinking: God help us!