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How the Roberts Court Undermined Sensible Gun Control

Why did the conservative justices, who seem so devoted to “originalism,” upend the well-established meaning of the Second Amendment?

September 23, 2015

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.

(Photo: Think­stock)