Events over the past several weeks have brought the issue of gun control into stark relief. Over the past two weeks from the time of this writing, there have been at least three mass shooting events. Lives were lost, families mourn, communities feel less secure.
To some degree, these mass shooting events have lost their ability to shock. That’s due at least in part to their frequency. Published reports show that there were 611 mass shootings in 2020. For those like me who might be math challenged, this comes to 1.67 mass shooting each day.
It is truly amazing that these shootings still have any power to shock us. According to data from the Center for Disease Control, since 1968 1.5 million Americans have been killed as a result of gun violence. Compare that number to the 1.2 million Americans killed in all of America’s wars.
Thanks to the influence of the National Rifle Association, ostensibly the voice of gun owners - not to mention gun manufacturers - the possession and use of guns has been elevated to a political issue, one that in no small measure has been influenced by NRA campaign money. Campaigns for elective office have become increasingly expensive over the years. Donors, trading on candidates’ focus on winning and maintaining office, influence policy outcomes through the strategic delivery of campaign funds. And the NRA has elevated this practice to an art form.
As much of a political issue as gun possession and violence is, it is also a legal issue. For more than six decades, the Second Amendment has been interpreted by gun rights groups as protecting the absolute right of individuals to own guns. This argument was and remains total bull pucky. No constitutional right is absolute, there are always exceptions. Guns are no different even if the Second Amendment stands for what it’s advocates claim it stands for.
In it’s entirety, the Second Amendment 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." That’s it. As we’ll see in a moment, there is a reason why it’s so awkwardly constructed.
There have been three Supreme Court decisions addressing whether there is a Second Amendment right for a person in their individual capacity to own a gun. The first two found that gun ownership was directly linked to to maintaining a militia. The third decision, District of Columbia v. Heller in 2008, found there was an individual right to own a gun independent from maintaining a militia.
This majority opinion was written by Justice Antonin Scalia, perhaps one of the most acerbic, blustering, bullying Justices to ever sit on the Court. All those attributes were on full display in this opinion. It’s like the law school he attended had as a motto, “if you can’t befuddle them with brilliance, baffle them with...” Well, we know how that ends.
Complete disclosure, I’m not a fan. That said, I can still appreciate a well thought out opinion even if I disagree with it. Unfortunately this opinion is not one of those that I can appreciate.
A brief note about the case. Dick Heller, a guard at one of the District’s federal buildings, wanted to purchase a handgun for his personal protection in his home. D.C. had an ordinance that prohibited the purchase and possession of handguns in the District. Heller challenged the ordinance on Second Amendment grounds and that challenge eventually made its way to the Court.
I will confess a bias - the only gun I have use for is a squirt gun on a hot summer day. Even super soakers are ok in the right situations. So the outcome of Heller did not make me happy. But it’s the legal (non)reasoning that undergirds the opinion that I object to. In a nutshell, as an expression of legal reasoning and constitutional analysis, there’s very little there there.
Scalia is an “Originalist” who believes that the Constitution means expressly what is embodied by its language and no more. And if there is any question about what the words mean, he looks to the “public understanding“ of those words at the time they were written. So for the body of the Constitution written in 1787 and the Bill of Rights written in 1790, the the words contained therein reflected their public understanding at those times. To Scalia, anything else is either rank speculation or just dead wrong.
And then Scalia proceeds to torture the reader with a 1790 word salad. Let’s start with the notion of public understanding - whose understanding do we accept? Scalia has an answer, the “voters” (his word, not mine). There just a couple of teensy problems with this. First, the only people permitted to vote at all were white males, and even some of them were excluded due to failure to meet the requisite property requirements, which varied from state to state. If a voter was a woman, a person of color, an indigenous person, a child in his legal infancy, or a poor white male it didn’t matter what their “public understanding“ about anything was.
But there’s a second, more egregious problem with Scalia’s “public understanding” standard as applied here. Voters were not involved in ratifying what eventually became the Constitution’s first ten amendments. The state legislatures decided to either vote for or against these amendments. Clearly legislators were elected to their state legislatures, but given the truncated voting franchise all that can be said is that any “public understanding” was expressed by one group of elites or near elites voting their peers into public office. Hardly a cross section of the public’s understanding.
But the greater problem Scalia had to solve was the separation of the militia clause from the clause proclaiming the right to bear arms. He solved this problem by describing the first clause (militia) as prefatory and the second clause (bearing arms) as operational. In other words, in a linguistic slight of hand, Scalia diminished the militia in favor of the individual’s right to have arms. He had to do this in order to find an individual right and rule in Heller’s favor.
From there he takes us on a tour of individually held rights and then concludes that the right to bear arms is an individual right and not link to a community right or obligation. Then he writes for pages on the 1790s public meaning of specific words (e.g. “arms”), how state constitutions addressed possession of arms, and how newspapers wrote about guns and militias.
In other words, for a guy who described Justice Stevens’ dissenting opinion as something worthy of the Mad Hatter, Scalia tries to take us through the looking glass with the intent of dropping us in the middle of Wonderland.
All of this is entertaining, and some of it is accurate as far as it goes, but Scalia’s focus on verbiage is largely irrelevant and his conclusion regarding separation of Second Amendment clauses is just flat wrong.
Since my Covid enforced home confinement I’ve had an opportunity to read a number of things, and relevant here are the transcripts of the congressional debate over what would become the Second Amendment. From that reading I can safely say that the militia, rather than being a prefatory concept, was in fact the organizing object of the Amendment.
Recall that I mentioned that there was a reason for the Amendment’s awkward construction. When the Amendment was reported out of committee to the House floor, it was a much lengthier document. It included references to opposition to standing armies, and to religious based exemptions from militia service.
Scalia is correct, words have meaning related to the era in which they are used. But he ignores the context in which words are used and it is the context that gives words their meaning. For instance, I might yell “fire” in a crowded theater resulting in multiple injuries. If there is no fire, then I’ve incited chaos resulting in numerous personal injuries, but if there is a fire then even though some were injured I might have saved lives. In scenario one I’m a goat; in scenario two I’m a hero. Context matters.
When the states met in the Constitutional Convention in 1787, there were numerous forces bearing down on the proceedings. One was the fear of external threats to the sovereignty of the fledgling nation. Another was the need to produce a governing structure strong enough to effectively govern and stabilize the economy, all while distributing power within its multiple component parts to ensure that power wouldn’t accrue in a few to the detriment of the many. And finally, there was the pressure at the state level to join together in forming this strong central government while maintaining individual state integrity.
After overcoming these and numerous other pressures, the ratification process exposed the deep divide between the advocates and opponents of the new government. The opposition centered on the lack of specific assurances that individual liberties would be safeguarded.
If anything, these anti-federalist opponents feared devolving into a new monarchial form of government. To allay those fears, the first Congress undertook the task of developing various guarantees of individual liberties, all of which became the Bill of Rights.
Central to this effort was the clear articulation that state militias would remain extant in lieu of a large standing peacetime national army. It was feared that such an army under the command of a strong central government would all but destroy states’ autonomy. Therefore, the language that militias were seen as necessary for the maintenance of a free state was neither prefatory nor surplusage, it was the object of the Amendment.
In the 1790s, people were well acquainted with militias. These were not some kind of volunteer association that one could opt into or opt out of. Rather, particularly the further away from the large cities such as Boston, New York, or Philadelphia one got, the more vital militias were to an individual’s and/or a community’s survival.
Many more remote communities had a requirement that all males between specific ages (e.g. 16-49 years) were required to be in the local militia. These militias were ad hoc organizations that came to life to meet any internal or external threat to the community. This was a civic duty to the community that males were required to perform. And since these communities didn’t possess the financial wherewithal to provide weapons for all, those with firearms were expected to bring theirs when the militia was called into action.
Further indication that the Amendment’s authors saw militia as a community duty rather that an individual right was the religious exemption discussion. Some House members wanted any mention of the exemption stricken from the text, while others sought to keep it in. Still others didn’t object that people be exempt from service due to religious beliefs, but thought that since these people enjoyed the protection of a militia they should pay money for the militia’s maintenance.
To suggest that the militia was a mere prefatory clause and that the right to keep and bear arms rested solely with an individual irrespective of his relationship with a local militia just ain’t true. What Scalia did while wordsmithing any intended meaning out of the Second Amendment was to deny history and ignore the intent of the authors of the Amendment.
In his opinion, Scalia and the other four Justices who signed onto the opinion did not uphold the Constitution. They did not delve deeply into the meaning of the words used, nor did they review the context, history, and debates of those who drafted and finalized the text of the Amendment.
And because they provided little to no constitutional basis for the holding in Heller, it cannot be said that there is an individual constitutional “right” to keep and bear arms.
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