Justice Scalia or:

How I Learned to Stop Ranting and Love the Assault Weapon

by
Juliet L. Ensign-Neary

Twenty-seven words, and our interpretation of them, have dominated the national dialogue since the December 14, 2012, mass-murder of children at Sandy Hook Elementary School in Newton, Connecticut. (Adults were also murdered that day, but society owes its children a special duty of protection and ours is failing miserably.)

The NRA, the GOP and Fox News are advocating for even more guns. In the words of NRA executive vice-president, Wayne LaPierre, “The only thing that stops a bad guy with a gun is a good guy with a gun.” On the other extreme are those who want a complete ban on civilian-owned firearms. The most reasonable solution is probably somewhere in the middle—a limitation on ownership of some weapons, with strong licensing and registration components.

So, why is this “reasonable solution” not already in place? Why does Congress not pass a law? Well, it is just not that easy, folks.

The Second Amendment to the U.S. Constitution states:  ”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.” It is a plain, well-constructed sentence, seemingly devoid of ambiguity. However, in a society where debate can be had over the definition of “is,” nothing is really simple.

President Obama has vowed to make new gun control legislation a priority in his next term. However, any legislation passed by a Republican-controlled House of Representatives is unlikely to have any substantial impact on the manufacturing, sale, or ownership of firearms. In fact, gun control in the abstract is somewhat unpopular, even among Democrats and Independents. Assuming some gun control measure can be passed, it must then pass constitutional muster by the judiciary.

In a common law system, citizens are expected to know what the law is, and to conduct themselves accordingly. However, to reasonably expect citizens to understand and follow laws, there must be some predictability as to how those laws are interpreted by the courts. Facilitating this predictability is the doctrine of stare decisis, commonly referred to as precedent. Generally, lower courts are bound by the decisions of higher courts, with the U.S. Supreme Court being the final authority. The body of judicial decisions, particularly that of the U.S. Supreme Court, must guide the crafting and implementation of future legislation.

There are three decisions from the U.S. Supreme Court which shape our understanding and enjoyment of the Second Amendment:  (1) United States v. Miller; (2) McDonald v. Chicago; and (3) District of Columbia v. Heller. ___________

In United States v. Miller, 307 U.S. 174 (1939), the Court held the possession of firearms not necessary for a common defense, as part of a well regulated militia, is not protected by the Second Amendment. ———Miller specifically dealt with a weapon purported not to be in use by the military, at the time. ————

McDonald v. Chicago, 561 US 3025 (2010), extended Second Amendment protections to the states via the Fourteenth Amendment. ———- There is similar precedent regarding other civil rights, and this case is not particularly alarming, in and of itself.

However, it is Justice Antonin Scalia’s opinion two years prior to McDonald, in District of Columbia v. Heller, 554 U.S. 570 (2008), that created two enormous obstacles for advocates of gun control. ——- In Heller, the majority held the Second Amendment confers an individual right to possess a firearm for self-defense in the home. Specifically, the Court held requirements for trigger locks or the disassembly of lawful firearms, in an owner’s home, amounted to a total prohibition of that entire class of firearm. ——–

Historically, Justice Scalia has insisted the best interpretation of legislation should come only from the ordinary meaning of the words. However, in Heller, Scalia conjured the right to bear arms for personal self-defense out of nothing. His Honor posited that the first clause of the Second Amendment states a purpose for the second clause, but does not limit the second clause in scope. It is a highly unusual rationale for this most literal of judges. Surprisingly, Scalia also supported his ruling with references to the Second Amendment’s legislative history, a practice he typically vigorously eschews. (It is worth mentioning that Scalia contorted himself similarly when concurring with the Court’s 2010 holding in Citizen’s United v. Federal Election Commission.)

The U.S. Supreme Court will be the final authority on the constitutionality of any new gun control legislation. Under our common law doctrine of stare decisis, the Court has already settled three important tenets:  (1) individuals have the right to have keep and bear war-making weapons for self-defense, despite having no connection to a militia; (2) the use of trigger locks cannot be required; and (3) owners cannot be required to keep their weapons disassembled or even unloaded. In fairness to the Congress, what controls are left?