• Show Notes

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Dear Reader, 

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Supreme Court’s opinions should not 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.

OK, folks. You got me. That opening paragraph isn’t me. It’s actually a quote – tweaked ever so slightly and telltale quotation marks removed to avoid spoiling the reveal – from U.S. Supreme Court Justice Antonin Scalia.

Justice Scalia wrote those words in a landmark 2008 ruling called District of Columbia v. Heller, striking down a federal DC firearms restriction and essentially creating a nationwide right to possess handguns for otherwise legal purposes within the home. In another decision two years later, McDonald v. Chicago, the Court extended this ruling by gutting similar state and local gun restrictions.

So, despite the measured, nuanced language in the introductory portion of the Heller opinion – about how the Second Amendment is not unlimited and permits common-sense gun regulation – Scalia quickly dispensed with the niceties and got down to the business of knocking down all manner of laws intended to do just that. 

Quick story here. When I was in law school, one of my classes met on Tuesdays and Thursdays. At the end of class one Tuesday, my professor announced that we’d not be having class on Thursday (yes!) but instead we’d be meeting at 8:00 a.m. on Saturday (say what?). Don’t ask any questions, he said; just be here. That Saturday, I rolled out of bed at 7:52 or so, staggered over to class, and pushed open the door. And there, in the front of the classroom, sat Antonin Scalia himself. My professor had clerked for the Justice a few years before, and got him to drop in. 

Now, the student body (and the professor) were overwhelmingly liberal-leaning, but I must say: Scalia mesmerized us. The gist of his talk was that he’s an originalist, a strict-constructionist. His job, as he described it, was to scrutinize the actual words written by the Framers in the Constitution, and to find the correct result by analyzing every clause, every letter, every comma. He must have said the word “text” 150 times. If you master this art – nay, this science – then you can arrive at the correct result, Scalia explained. He gave us several examples where his meticulous parsing of the Constitution’s text seemingly led to sound and reasonable results. By the end of Scalia’s talk, he had me, and many of my classmates, convinced that he had cracked the code and figured it all out. 

But after the initial buzz wore off, it occurred to my classmates and me that it was a bit odd that this mechanical process, as applied by Scalia, almost always led to the conservative policy result – given that it’s never about politics and all that. We started to wonder whether Scalia was robotically working through the textual equation to discover the one true answer, or whether he was starting with his desired outcome and then backfilling the textual analysis to match. The Heller decision, which came out about a decade after Scalia’s talk to my class, pulls back the curtain on his hypocrisy. 

The Second Amendment itself is only 27 words long: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Now, remember, according to Scalia: every word matters, every word has meaning. We’re all pretty well familiar with the “right of the people to keep and bear Arms shall not be infringed” language in the Second Amendment. But how about the whole “Militia” part that precedes it? Doesn’t it look like, on its face, the Second Amendment applies only to people serving in some kind of “militia,” and not to the civilian population at large?

Scalia has a solution. In the Heller decision, he engages in a torturous, mind-bending, dozen-or-so page dissection of the Second Amendment’s verbiage. Don’t even try to read this; trust me, it’s brutal, and (perhaps intentionally) impenetrable. Here’s a sample, if you must: “apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.” 

You’ll be shocked to learn where Scalia eventually lands on the “well-regulated Militia” language: he concludes that it doesn’t actually mean anything at all and chucks it right out the window. Yes, Justice Scalia, the paragon of “every word matters,” ignores about half of the Amendment’s text – the part that doesn’t get him to his bottom-line policy preference, conveniently. 

Since Heller and McDonald, the Court has been mostly silent on the Second Amendment, but that’s about to change. One of the few remaining cases to be handed down this term is New York State Rifle & Pistol Association v. Bruen. The case is similar in some respects to Heller and McDonald, only this one applies to New York’s restrictions on carrying of firearms outside the home. The smart money here is on the Court striking down the New York law; the big question is just how far the Court will go. In an extreme scenario, the Court might essentially establish a nationwide right to carry handguns for lawful purposes, without restrictions.  

I have no doubt the Court will continue to expand the scope of the Second Amendment in the upcoming New York case, and beyond. If anything, the Court is now more consverative, with a six-to-three majority, than it was during the last major gun cases in 2008 and 2010. All six of the current conservative justices have well-established records of reading the Second Amendment broadly – including Chief Justice John Roberts, who has shown a willingness to join with the liberals on other issues. But don’t count on him flipping on a gun case. And even if he does, the Court’s three liberals will still need at least one more conservative to join them.  

The Court’s conservatives, it seems, have learned a potent lesson from Justice Scalia. Take the part of the law that works for your favored policy or political position, do some performative linguistic gymnastics, and throw out the rest. Liberals are certainly not above intellectual disingenuousness to reach a desired conclusion either. But conservatives have the power, and they’ve increasingly exercised it to meet preordained policy goals by cloaking themselves in the selective textualism of Justice Antonin Scalia. 

Stay Informed,