Scalia’s Legacy on Gun Rights: Unfinished Business

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!

{ 12 comments… add one }
  • Tom Horn February 19, 2016, 5:50 pm

    Goodbye to Freedom’s Best Friend

    Thank you, Honorable Supreme Court Justice Antonin Scalia. You will be sorely missed.

    The liberals believe Justice Scalia upheld a, “dead,” interpretation of our U.S. Constitution (fixed, based on the Founding Father’s exact meaning of the document at the time of its writing). They (the liberals) believe in an, “alive,” interpretation: an interpretation of the Constitution that is plastic and malleable, changing with the times.

    This is a terrible analogy created by the liberal media. Justice Scalia, in fact, believed in a, “concrete,” interpretation of the Constitution. The liberals believe in a, “plastic,” interpretation, which can change with current fad, fashion, and fancy. Justice Scalia, a great logical thinker, realized that the U. S. Constitution is the foundation and bedrock of our government. Like, principles, morals, and values, foundations must be firmly grounded, stable, and rock solid. Any architect or builder knows you cannot build something permanent on a shifting foundation. It just doesn’t work. Believe me here, the liberals will have our Nation founded on ever shifting quicksand, bowing to the loudest self-interest group chanting on the Capital steps. A nation thus founded cannot long endure.

    This is why the coming elections are so critical. Many of our Supreme Court Justices are advancing in age, and their replacements, and the representatives we send to Washington to approve their appointments will decide the course of our great Nation. Get out and vote.

  • Frederiksted February 19, 2016, 4:56 pm

    Just recall that Scalia was somewhat selective when he chose to be an ‘Originalist’ _ _ http://www.huffingtonpost.com/ronald-a-lindsay/scalia-and-originalism-may_b_9237446.html

  • Hamilton February 19, 2016, 11:51 am

    Mr Sense, please be careful here. Don’t forget the terrible oppression which the WVa coal miners and their familes were under in the days up to the end 1960s. It has continued to a somewhat lesser degree up to the present. Check out the “yellow dog clause”. Check out the “Battle of Blair Mountain”. Check out Don Chaffin who was tyrant of Logan County WVa and for many extended miles beyond. These striking miners and their families had no help whatsoever. Be careful, you do not have a clue how the unionization help them. But check out the facts that the coal operators were able to bring in the Army to quell a strike. Check out that Billy Mitchell brought in the military air force of the day to bomb the miners who were striking. These miners were wearing a red handkerchief around their neck so the could be recognized by other miners who were on the mountain with them as they defended themselves against the gun thugs of Baldwin-Felts out of Bluefield. Chaffin was able to literally get anyone with a red handkerchief court marshaled. check it out. Btw, no one will bring it up, but it was those men who fought against massive oppression who were the “red necks”. Finally the union came in and there was some letup.
    However, check out the documentary “HARLAN COUNTY USA”. That was a strike in KY against the oppression around 1970. My best friends were there on the front lines. .But coal seems to carry a curse. ………… on the other hand, the bottom line for whatever is going on between humans is “follow the money”. I hear what you are speaking out about. The unions become the oppressors once in power.

  • Nathan February 19, 2016, 9:29 am

    Great article!

  • Stephen Kutney February 19, 2016, 8:50 am

    I think it would be nice if a gun manufacture like Remington would come out with a 22 rifle called the Scalia.

    http://www.deseretnews.com/article/635187836/Young-Scalia-carried-rifle-while-riding-NY-subway.html?pg=all

  • Dan February 19, 2016, 5:01 am

    Our political system has been so corrupted by corporate money that there is only one thing that can reliably be predicted, and that is that the working class will continue to be squeezed by cost cutting, relocating production to other countries, and Right to Work Laws (all blatant assaults on unionization). The biggest threat to our right to possess or carry firearms is public sentiment. If any of these politicians feels it is in their best interest to support further restrictions on firearms, whether Republican or Democrat, they will, and you will then see that these politically appointed justices are not independent at all. Our two party system currently consists of Republicans (the Wolves), and Democrats (the Wolves in Sheep’s clothing), so as sheep, we may want to sleep with one eye open!

    • Mr. Common Sense February 19, 2016, 9:37 am

      Dan,
      Unionization is one of the biggest problems we currently have today in the US. Sorry to burst your bubble, but if you were worth more, then your employer would pay you more. I am PROUD to live in a Right to Work State and pity you for needing a union to govern what happens to you at work. What ever happened to people trying to better themselves, not be lazy, and taking pride in working for a living? Sure you can have more time off and are responsible for less while on the clock, but what will ever remain true is that you cannot multiply wealth by dividing it. Also, there’s still a few good guys still in office. Not many but a few.

      • Andy February 19, 2016, 4:13 pm

        Mr Common Sense, I don’t know what planet your from, but your statement “If You Were Worth More Your Employer Would Pay You More”, is one of the most ridiculous statements that I have ever heard! Try telling that to the millions of health care workers who educate themselves, follow their calling to take care of other human beings, are than payed some of the lowest wages, receive some of the worst health benefit packages, and after a long career receive very minimal if any retirements, all while Administrators stuff their own coffers. I am actually in a management position in healthcare, fighting constantly for more compensation for the employees in my department, but due to administrative guidelines stacked against the workers, it rarely happens. In most businesses today, the mantra followed is ” Get As Many People To Do As Much As Possible For As Little Compensation As Possible”. I have always thought that there would not be a need for a union in any business treated their employees fair.

      • Mark February 19, 2016, 7:08 pm

        The “free market” will fix everything? Is that why Google & Apple had a “gentlemans agreement” not to hire each other’s workers & fix wages artificially low? How many times has Microsoft been convicted of price fixing & anti-competitive behavior? Every year, in *every* state there are thousands of out-of-court settlements by companies large and small for unpaid overtime. That’s a pretty basic right that’s been accepted for fifty-plus years, and it’s been slipping away, not because workers “like” working without overtime compensation, but because employers have market power & are able to extort free labor contrary to law.

        The free market doesn’t work without checks and balances, and a government that’s been defunded isn’t a check. Unions (were) a check until they were gutted by corporate hacks from both parties.

        Mr Scalia did the right thing on the second amendment, but he also wrote that being actually innocent wasn’t a valid reason to stop someone from being lawfully executed. If you got a “fair” trial, you could be executed, even if you didn’t do the crime. Please find a rationalization of that in our constitution.

      • Dan February 19, 2016, 8:27 pm

        Mr. Common Sense is obviously affiliated with or employed by the Chamber of Commerce or something similar.
        I remember complaining about union dues when I was a young railroad employee, and one of the old-timers got very angry and said that I didn’t know what it was like before unions. He said a company truck would drive over to his neighborhood and pick from the crowd of men waiting on the corner who would work that day. He said if your wife wouldn’t sleep with the foreman there was a good chance you didn’t work, and if you got injured at work, you were on your own. Why do you think our bought and paid for politicians (Democrats and Republicans) have allowed Mexicans to pour over our borders by the millions?

    • tom February 19, 2016, 12:07 pm

      Being free to be employed without being forced to join a union and have your dues go to liberal politicians is a bad thing? Instead, government should use force to violate people’s liberty and mandate that they join and fund a private organization?

      How long did it take you to rationalize that?

      • Mark February 19, 2016, 7:44 pm

        The government doesn’t do jack to protect worker’s rights. Unions do. That’s why big businesses and their lackeys hate unions. If you can find a job that pays less because you’re unionized (and paying those oppressive dues), I’d love to see it. Union workers make more than non-Union workers, that’s a fact backed up by at least seventy years of history.

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