Cross-posted on The Nation
In common with the other big rightward swerves by the Roberts Court, the 2008 ruling in District of Columbia v. Heller was an aggressive exercise in mendacity. By upending the well-established meaning of the Second Amendment, the Court made the country less safe and less free. It did this under the guise of a neutral and principled “originalism” that looks to the text as it was first understood back in 1791 by the amendment’s drafters and their contemporaries.
Heller’s 5–4 majority decision, written by Justice Antonin Scalia and joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito, was less in sync with the founding generation than with the top priority of a powerful interest group closely aligned with the Republican right. The National Rifle Association had been waging an intense 30-year campaign to secure an individual’s constitutional right to keep and bear arms by winning over members of the public, high-level politicians, and, ultimately, the Supreme Court. Mission, to an alarming degree, accomplished.
The decision declared, for the first time, that the Second Amendment protects an individual right to a gun, at least for self-defense in the home. It invalidated key parts of th e District of Columbia’s unusually strict handgun ban, which prohibited the possession of nearly all handguns in the violence-prone city and required that firearms be stored unloaded and disassembled, or bound with a trigger lock.
In the process, the conservative justices engaged in an unsubtle brand of outcome-oriented judicial activism and “living constitutionalism” that they claim to abhor—an irony noted by a host of devoted Supreme Court watchers across the ideological spectrum. Richard Posner, the prominent Reagan-appointed federal appellate judge and prolific commentator on legal and economic issues, derided Scalia’s flawed approach as “faux originalism” and a “snow job.”
To grasp the audacity of what Scalia & Co. pulled off, turn to the Second Amendment’s text: “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.” To find in that wording an individual right to possess a firearm untethered to any militia purpose, the majority performed an epic feat of jurisprudential magic: It made the pesky initial clause about the necessity of a “well regulated Militia” disappear. Poof! Gone. Scalia treated the clause as merely “prefatory” and having no real operative effect—a view at odds with history, the fundamental rules of constitutional interpretation, and the settled legal consensus for many decades.
“The Second Amendment was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several states,” then-Justice John Paul Stevens correctly noted in his minority opinion, joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer. “Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms.”
Then there was Scalia’s peculiar breakdown of the phrase “keep and bear arms” into its component words to argue that the Second Amendment protects a general right to possess guns—even though, as Stevens pointed out, the term “bear arms” was most commonly used in the 18th century to describe participation in the military.
And let’s not overlook the most absurd thing, which Breyer tried to get at in a separately filed minority opinion: At a moment in modern America when more than 30,000 lives are lost to gun violence each year, and mass shootings are a common occurrence, the majority opinion relied heavily on a guesstimate (and a rotten one at that) of what the Second Amendment meant more than 200 years ago, with no common-sense balancing test taking into account the real-world consequences for today.
“The idea that the founders wanted to protect a right to have a Glock loaded and stored in your nightstand so you could blow away an intruder is just crazy,” says Saul Cornell, a leading Second Amendment scholar cited by the dissenters in both Heller and McDonald v. Chicago, the 2010 Supreme Court sequel that struck down Chicago’s similarly strict handgun ban and extended the new Second Amendment right to states and cities. Adding to the dishonesty, Scalia refused to acknowledge that he was overturning the Court’s venerable Second Amendment precedent, United States v. Miller, instead straining mightily, if unconvincingly, to draw distinctions.
As radical as the holding is, the majority could have done even more damage. Scalia stopped short of applying the newly discovered individual right beyond “hearth and home,” leaving the constitutional status of toting guns outside the home for another day. And, possibly to secure the vote of a wavering justice, he offered assurance that Heller posed no threat to long-standing gun- control laws and regulations short of total gun bans.
Owing a good deal to that flash of moderation, Hel- ler’s appalling jurisprudence and real-world harms have tended to be under-recognized. The decision gave the NRA a big jolt of energy and a potent new rhetorical tool that has bolstered the group’s already formidable ability to stop needed gun-safety reforms—to the point of blocking hugely popular congressional proposals such as extending background checks to all gun sales, even following the 2012 school massacre in Newtown, Connecticut. Heller is also wielded to advance the NRA’s maniacal drive to normalize the presence of guns and spread “concealed carry” permits, even absent a special need and adequate screening or training. Coincidentally or not, the number of states with lenient or no concealed-carry permitting requirements has grown significantly since Heller changed the terms of the debate.
We may be approaching another moment of reckoning. Since 2008, several federal courts have upheld state rules that allow officials discretion in issuing concealed-carry licenses. The Supreme Court declined to review those decisions. But forthcoming rulings by federal appellate courts in cases testing the constitutionality of similarly restrictive permitting requirements in San Diego and the District of Columbia could become fodder for a new round of Scalia-style “originalism.” If that happens, we may look back at Heller as a step toward something worse.
It shouldn’t come to that. There is language in Heller, as well as new historical research, to support upholding the concealed-carry permitting limits at issue. Still, it’s a scary thought.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.