Justice Scalia Recognized the Constitutionality of Some Gun Control Measures, And For That He Was Criticized as Not Sufficiently Originalist

Cass Sunstein column on Justice Scalia’s Heller opinion:

Justice Scalia’s opinion did not come close to embracing the arguments made by those who invoke the Second Amendment as an all-purpose weapon against democratic efforts to prevent the murder of high-school kids. On the contrary, his opinion is full of permission slips for federal, state and local governments to act.

In a crucial sentence, Justice Scalia wrote, “Nothing in our opinion should 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.”

Justice Scalia also emphasized that the Second Amendment is restricted to weapons “in common use at the time.” He added that the Constitution leaves government with many tools for combating the problem of handgun violence, including regulation.

As I note in my upcoming book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption:

But even Heller  was not fully originalist. As Sara Anonchick Solow and Barry Friedman explain, it was less originalism than lawyerly interpretation. Heller  “deals not only with text and original meaning, but with pre- and post-ratification practice, precedent, evolved understandings, normative justification, and consequentialist limitations on the right. It is by surveying this broad array of sources that Justice Scalia locates the ethos of self-defense purportedly at the center of the Second Amendment.” Or, as Professor Laurence Tribe and Joshua Matz put it, “Focusing . . . on how Heller works—the sources it cites, the logic, the scope of the rights it creates— we discover a ruling exquisitely attuned to the living constitutionalism that Scalia so vehemently disdains.”

Professor Nelson Lund goes further, saying that Scalia’s reasoning in Heller  is “at critical points so defective—and in some respects so transparently nonoriginalist—that Heller should be seen as an embarrassment for those who joined the majority opinion. It may also be widely (though unfairly) seen as an embarrassment for the interpretive approach that the Court purported to employ. Originalism deserved better from its judicial exponents.” Although Lund agreed that Scalia was right on originalist grounds in finding within the Second Amendment an individual right to bear arms, he found the rest of the analysis on the permissibility of the D.C. handgun ban to be both non-originalist and ahistorical.


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