Scalia's Quagmire

by ROBERT HEROLD & r & & r & & lt;span class= & quot;dropcap & quot; & I & lt;/span & n D.C. v Heller, the U.S. Supreme Court chose to use a problematic city ordinance to take up a fundamental constitutional question: Is the right to keep and bear arms guaranteed by the Second Amendment an individual right or a collective right? For three quarters of a century, courts have ruled that the right is collective, not individual, that the militia clause is controlling and keeping and bearing arms is so circumscribed. As a result, state and local governments have had the leeway to regulate guns, subject to certain reasonableness tests. The D.C. ordinance could have been narrowly challenged on just these grounds. It requires that anyone owning a handgun have it locked and disassembled -- which, it would seem, destroys the self defense rationale, that is unless you could talk the robber into waiting around while you put your gun back together.





The Amendment is not all that clear. It reads: "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." One might suppose that the Court would be interested, at the very least, in what the framers intended. Not Scalia. He is of the so-called "original meaning" school of thought. Boiled down, original meaning goes to the question, what did reasonable people think the amendment meant at the time it was passed? Justice Scalia, writing for the narrow 5-4 majority, decided that the original meaning of the Second Amendment was that the right to keep and bear arms was an individual right.





To get at original meaning, Scalia all but ignores the ratification debates as well as historical context. He begins his analysis by turning the clock back from Revolutionary times by more than a century, to England and lawyer William Blackstone, whose commentaries are still considered the final authority on the common law. Scalia argues that, according to Blackstone, gun rights in Merry Old England were individual, therefore, at the time the Second Amendment was written, were pre-existing. But that raises the question: When does originalism begin? Or, for that matter, when does it end? Scalia also cites post-Civil War articles to buttress his conclusions. Oh yes, he fails to explain the strict gun control laws in England today, Blackstone notwithstanding.





& lt;span class= & quot;dropcap & quot; & H & lt;/span & ere's what we know: The Second Amendment was written by James Madison. He wrote it for the same reason he wrote the Federalist Papers, to gain support for the ratification of the Constitution in those states that had strong anti-federalist sentiment. The concerns in these states went to Article 1, Section 8, of the proposed Constitution, which gave Congress the power to "provide for the calling forth of the Militia to execute the Laws of the Union, suppress insurrections and repel invasions." Could the Congress abolish state militias? Under this power, could the Congress take state militias and create a standing army? Madison sought to defuse this issue. Individual rights had nothing to do with much of anything. At stake was federalism, what it meant and where did the power of the national government give way to the states.





Scalia is interested in none of this. He cites Madison a total of three times in his entire opinion. Justice John Paul Stevens, in his dissent, cites Madison 10 times. Scalia gives more ink to Blackstone and writers just prior to and after the Civil War than he does to Madison and the other framers.





It turns out that the very clause that Scalia dismisses as "prefatory," the opening clause which states, "A well regulated militia being necessary to the security of a free state," was for Madison the important clause, prefatory or not. Scalia engages in what critics term "law office history" -- that is, "the selective and uncritical use of quotations, stripped from the context in which they were uttered," and given a meaning that would astound contemporaries. This opinion has to be the poster child of law office history.





& lt;span class= & quot;dropcap & quot; & T & lt;/span & he problems with Scalia's originalism are numerous and obvious. Nineteenth century politics in America focused not on individual rights but on issues over states rights. Federalism was at the center of the American political debates. They required the most time to resolve at the Constitutional convention. These were the issues that took America into a terrible war. It wasn't until the Supreme Court, almost a century later, accepted as law the incorporation doctrine, which extends the Bill of (individual) Rights to the states, that anything about Scalia's argument makes the slightest sense. And incidentally, Scalia still thinks this doctrine is an incorrect reading of the Constitution, but he used it anyway to strike down the D.C. ordinance.





Was there a general presumption of individual gun rights in 1787? Likely there was, but that's entirely beside the point. The question is, was this issue of Constitutional importance in 1787? No it was not. "The people" didn't even have the right to directly elect Senators until 1913 when the 17th Amendment was finally ratified. The important national issues for the framers went to standing armies and state militias.





Scalia seems to sense towards the end of his long opinion that he is about to create a political quagmire. So, he waffles: Yes, individuals can keep and use guns for self-defense within the home. With this caveat, Scalia turns a weakly argued opinion into a hopelessly muddled one. And now he has managed to toss us all deeper into Justice Felix Frankfurter's much-to-be-avoided "political thicket."