How Scalia Botched Heller and Let the Left Undermine the 2nd Amendment

Twelve years after the Supreme Court ruled that the right to keep and bear arms is an individual right "unconnected with service in a militia," the Second Amendment is in worse shape than ever.  New York; California; Massachusetts; Connecticut; and Washington, D.C., with a combined population of 70 million, have outlawed the sale of most semi-automatic rifles and all gun magazines capable of holding more than ten rounds to the public.  Colorado, New Jersey, Vermont, Maryland, and Hawaii also have restrictions on magazine capacity.  Seventeen states have so-called "red flag" laws, allowing the summary confiscation of a person's firearms on hearsay, even if that individual has not been charged with a crime.  A number of states have banned the sale of firearms between private parties, and New York and California prohibit the sale of ammunition without a government background check and registration of the purchase with the police.

None of this legislation has been declared unconstitutional in court.

This week, Gov. Ralph "Coonman" Northam and the Democrat-controlled state Legislature in Virginia  are poised to impose New York–style gun control on the former capital of the Confederacy, including an "assault weapon" sales ban, a magazine ban, an "assault weapons registry," a "red flag" law, and a private transfer ban, despite vocal opposition from rural gun-owners.  The passage of such legislation, which is a near certainty as of this writing, would deal a humiliating blow to the National Rifle Association, which located its national headquarters in Fairfax so its employees and lobbyists would not be subject to the District of Columbia's harsh gun laws.  (Indeed, one Democrat-sponsored bill in the Virginia Legislature seems to written solely for the purpose of spitefully and vindictively closing the shooting range at NRA headquarters.)

The Democratic Party — with only a handful of exceptions, such as Sens. Manchin and Tester —  is committed to passing identical legislation on a national level the next time it wins majorities in both houses of Congress and captures the White House.

The blame for all of this can be placed squarely on the late Justice Antonin Scalia, author of the majority opinion in District of Columbia v. Heller.

Heller was hailed as a "landmark" decision — a triumph of conservative jurisprudence and Scalia's philosophy of "originalism" — when it was decided in 2008.  But the intervening years have demonstrated that the argument he presented in his opinion was unsound and contained language that enabled the political left to enact most of the gun control it wanted anyway.

Scalia began by rejecting the argument, held by dissenting Justice John Paul Stevens and by the gun-control lobby for many decades, that the Second Amendment allows state militias (today's National Guard) to possess guns.  He correctly pointed out that a plain reading of the text states that the "the right of the people to keep and bear arms" — not the right of the militias — is the right that "shall not be infringed." Scalia went on to argue that the Founders understood the right to keep and bear arms as a right of personal self-defense: "Nine state constitutional provisions written in the 18th century or the first two decades of the 19th century enshrined the right of citizens to 'bear arms in defense of themselves' ... putting these textual elements together, we find that they guarantee the individual right or possess and carry weapons in case of confrontation."

Scalia further attacked "the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment."  Clearly, then, modern arms like the AR-15 rifle should be protected.

In light of such clear-cut jurisprudence, how has the political left been able to pass restrictive purchase requirements, carry requirements, and outright bans on modern arms without the slightest opposition from the courts?

The answer is that Scalia practically invalidated his own opinion with the following:

Like most rights, the right secured by the Second Amendment is not unlimited[.] ... [N]othing 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.

Further:

We ... recognize another important limitation on the right to keep and carry arms. [The majority opinion in U.S. v. Miller] said ... that the sorts of weapons protected were those 'in common use at the time[.]' ... We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons."

The left has seized upon these phrases in an attempt to drive a stake into the heart of the Second Amendment.  Indeed, H.R. 1296, the Assault Weapons Ban of 2019, with 216 Democratic sponsors in the House, cited Scalia's language directly.  The stated purpose of the bill is "to ensure that the right to keep and bear arms is not unlimited."

"Mental illness" is a broad, subjective, ambiguous concept that can include conditions ranging from paranoid, delusional schizophrenia to commonplace anxiety to the rather questionable "oppositional defiant disorder."  Gun-banners have interpreted it as broadly as possible; one Virginia Democrat already pronounced all defenders of the Second Amendment "mentally ill."

If the right to keep and bear arms is a right to personal self-defense, what clause of the Constitution makes it invalid on the grounds of a school or government building?  And how can discretionary and restrictive permitting processes, intended to make it extremely difficult or impossible to own and carry handguns, continue to exist in states like New York and New Jersey?

Perhaps the most grievous error Scalia committed was his failure to overturn the Supreme Court's decision in U.S. v. Miller, the only prior case dealing with the individual right to possess a gun.  Miller, decided in 1939, was a flawed precedent.  It upheld the National Firearms Act of 1934, which placed severe restrictions and punitive taxes upon machine guns, suppressors, short-barreled rifles and shotguns, and destructive devices "in interstate commerce."  The Miller court ruled that these items were not "in common use" by the militia, thus not protected for individual ownership.

These are the "longstanding prohibitions" on "dangerous and unusual weapons" and "conditions and qualifications on the commercial sale" that Scalia referred to in Heller.  But none of these supposedly "longstanding" prohibitions existed prior to the NFA of 1934, which was the first federal gun law in the nation's history.  And nothing in the Constitution allows one provision, "the right to keep and bear arms," to be infringed by another provision — in this instance, the interstate commerce clause.

Would anyone accept the idea that journalists writing newspapers in "interstate commerce" should be subjected to punitive taxation, government licensing, and registration of their articles with a federal agency?  Who would accept federal taxation, registration, and licensing of a pastor or rabbi preaching sermons "in interstate commerce"?

Gun prohibitionists have used the language of Miller and Heller to contend that the semi-automatic rifles are "dangerous and unusual" and may be prohibited  — despite the fact that only a tiny fraction of annual homicides are committed with long guns of any type.

The "common use" test articulated by the Miller court is a classic example of a Catch-22, and Scalia made a serious logical error in upholding it.  A firearm is protected by the Second Amendment if it is in common use; but it cannot be in common use if it is banned.

That makes no sense.

Further, firearms technology has advanced over the past two and a half centuries.  Arms that were once in common use, such as the Brown Bess musket and the Colt 1873 revolver, can no longer be said to be "in common use."  Are they no longer protected?  Conversely, the Glock pistol capable of holding 16 or more rounds and the fully automatic M-4 carbine with a 30-round magazine were not in "common use" when Miller was decided — because they had not yet been invented.  But they are in common use today, particularly by the military and by the police (who are not "the militia").  According to the logic of the Miller court, then, they should be available for civilian use, yet these are precisely the type of arms that modern gun control legislation has banned or seeks to ban for everyone but the military and the police.

"Common use" is also a highly subjective phrase.  A federal district court judge laughably ruled that the AR-15 rifle is not in common use and thus may be prohibited — while other courts have ruled that uncommon weapons like nunchaku and stun guns are protected under the Second Amendment.

The Heller decision turned out to be a bust.  Aside from overturning a local handgun ban in the District of Columbia and providing the precedent to do the same in Chicago, it did nothing to advance gun rights nationwide.  Rather, it provided gun-controllers with plenty of justification for equally restrictive legislation on a much larger scale.  It is high time for the Supreme Court to issue a decision clearly and decisively upholding the plain language of the Second Amendment and to strike down the myriad laws "infringing" on the "right of the people to keep and bear arms."  But that will not happen unless Donald Trump wins a second term and is able to replace aging liberal justices Ruth Ginsburg and Stephen Breyer with staunchly and reliably conservative justices.

If Trump fails, the political left will continue to exploit the ambiguous and contradictory language that Justice Scalia used in Heller to undermine the Second Amendment until the constitutional "right" to keep and bear arms is effectively nullified and turned into a discretionary, government-granted privilege, as it is today in places like New York and California.

Twelve years after the Supreme Court ruled that the right to keep and bear arms is an individual right "unconnected with service in a militia," the Second Amendment is in worse shape than ever.  New York; California; Massachusetts; Connecticut; and Washington, D.C., with a combined population of 70 million, have outlawed the sale of most semi-automatic rifles and all gun magazines capable of holding more than ten rounds to the public.  Colorado, New Jersey, Vermont, Maryland, and Hawaii also have restrictions on magazine capacity.  Seventeen states have so-called "red flag" laws, allowing the summary confiscation of a person's firearms on hearsay, even if that individual has not been charged with a crime.  A number of states have banned the sale of firearms between private parties, and New York and California prohibit the sale of ammunition without a government background check and registration of the purchase with the police.

None of this legislation has been declared unconstitutional in court.

This week, Gov. Ralph "Coonman" Northam and the Democrat-controlled state Legislature in Virginia  are poised to impose New York–style gun control on the former capital of the Confederacy, including an "assault weapon" sales ban, a magazine ban, an "assault weapons registry," a "red flag" law, and a private transfer ban, despite vocal opposition from rural gun-owners.  The passage of such legislation, which is a near certainty as of this writing, would deal a humiliating blow to the National Rifle Association, which located its national headquarters in Fairfax so its employees and lobbyists would not be subject to the District of Columbia's harsh gun laws.  (Indeed, one Democrat-sponsored bill in the Virginia Legislature seems to written solely for the purpose of spitefully and vindictively closing the shooting range at NRA headquarters.)

The Democratic Party — with only a handful of exceptions, such as Sens. Manchin and Tester —  is committed to passing identical legislation on a national level the next time it wins majorities in both houses of Congress and captures the White House.

The blame for all of this can be placed squarely on the late Justice Antonin Scalia, author of the majority opinion in District of Columbia v. Heller.

Heller was hailed as a "landmark" decision — a triumph of conservative jurisprudence and Scalia's philosophy of "originalism" — when it was decided in 2008.  But the intervening years have demonstrated that the argument he presented in his opinion was unsound and contained language that enabled the political left to enact most of the gun control it wanted anyway.

Scalia began by rejecting the argument, held by dissenting Justice John Paul Stevens and by the gun-control lobby for many decades, that the Second Amendment allows state militias (today's National Guard) to possess guns.  He correctly pointed out that a plain reading of the text states that the "the right of the people to keep and bear arms" — not the right of the militias — is the right that "shall not be infringed." Scalia went on to argue that the Founders understood the right to keep and bear arms as a right of personal self-defense: "Nine state constitutional provisions written in the 18th century or the first two decades of the 19th century enshrined the right of citizens to 'bear arms in defense of themselves' ... putting these textual elements together, we find that they guarantee the individual right or possess and carry weapons in case of confrontation."

Scalia further attacked "the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment."  Clearly, then, modern arms like the AR-15 rifle should be protected.

In light of such clear-cut jurisprudence, how has the political left been able to pass restrictive purchase requirements, carry requirements, and outright bans on modern arms without the slightest opposition from the courts?

The answer is that Scalia practically invalidated his own opinion with the following:

Like most rights, the right secured by the Second Amendment is not unlimited[.] ... [N]othing 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.

Further:

We ... recognize another important limitation on the right to keep and carry arms. [The majority opinion in U.S. v. Miller] said ... that the sorts of weapons protected were those 'in common use at the time[.]' ... We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons."

The left has seized upon these phrases in an attempt to drive a stake into the heart of the Second Amendment.  Indeed, H.R. 1296, the Assault Weapons Ban of 2019, with 216 Democratic sponsors in the House, cited Scalia's language directly.  The stated purpose of the bill is "to ensure that the right to keep and bear arms is not unlimited."

"Mental illness" is a broad, subjective, ambiguous concept that can include conditions ranging from paranoid, delusional schizophrenia to commonplace anxiety to the rather questionable "oppositional defiant disorder."  Gun-banners have interpreted it as broadly as possible; one Virginia Democrat already pronounced all defenders of the Second Amendment "mentally ill."

If the right to keep and bear arms is a right to personal self-defense, what clause of the Constitution makes it invalid on the grounds of a school or government building?  And how can discretionary and restrictive permitting processes, intended to make it extremely difficult or impossible to own and carry handguns, continue to exist in states like New York and New Jersey?

Perhaps the most grievous error Scalia committed was his failure to overturn the Supreme Court's decision in U.S. v. Miller, the only prior case dealing with the individual right to possess a gun.  Miller, decided in 1939, was a flawed precedent.  It upheld the National Firearms Act of 1934, which placed severe restrictions and punitive taxes upon machine guns, suppressors, short-barreled rifles and shotguns, and destructive devices "in interstate commerce."  The Miller court ruled that these items were not "in common use" by the militia, thus not protected for individual ownership.

These are the "longstanding prohibitions" on "dangerous and unusual weapons" and "conditions and qualifications on the commercial sale" that Scalia referred to in Heller.  But none of these supposedly "longstanding" prohibitions existed prior to the NFA of 1934, which was the first federal gun law in the nation's history.  And nothing in the Constitution allows one provision, "the right to keep and bear arms," to be infringed by another provision — in this instance, the interstate commerce clause.

Would anyone accept the idea that journalists writing newspapers in "interstate commerce" should be subjected to punitive taxation, government licensing, and registration of their articles with a federal agency?  Who would accept federal taxation, registration, and licensing of a pastor or rabbi preaching sermons "in interstate commerce"?

Gun prohibitionists have used the language of Miller and Heller to contend that the semi-automatic rifles are "dangerous and unusual" and may be prohibited  — despite the fact that only a tiny fraction of annual homicides are committed with long guns of any type.

The "common use" test articulated by the Miller court is a classic example of a Catch-22, and Scalia made a serious logical error in upholding it.  A firearm is protected by the Second Amendment if it is in common use; but it cannot be in common use if it is banned.

That makes no sense.

Further, firearms technology has advanced over the past two and a half centuries.  Arms that were once in common use, such as the Brown Bess musket and the Colt 1873 revolver, can no longer be said to be "in common use."  Are they no longer protected?  Conversely, the Glock pistol capable of holding 16 or more rounds and the fully automatic M-4 carbine with a 30-round magazine were not in "common use" when Miller was decided — because they had not yet been invented.  But they are in common use today, particularly by the military and by the police (who are not "the militia").  According to the logic of the Miller court, then, they should be available for civilian use, yet these are precisely the type of arms that modern gun control legislation has banned or seeks to ban for everyone but the military and the police.

"Common use" is also a highly subjective phrase.  A federal district court judge laughably ruled that the AR-15 rifle is not in common use and thus may be prohibited — while other courts have ruled that uncommon weapons like nunchaku and stun guns are protected under the Second Amendment.

The Heller decision turned out to be a bust.  Aside from overturning a local handgun ban in the District of Columbia and providing the precedent to do the same in Chicago, it did nothing to advance gun rights nationwide.  Rather, it provided gun-controllers with plenty of justification for equally restrictive legislation on a much larger scale.  It is high time for the Supreme Court to issue a decision clearly and decisively upholding the plain language of the Second Amendment and to strike down the myriad laws "infringing" on the "right of the people to keep and bear arms."  But that will not happen unless Donald Trump wins a second term and is able to replace aging liberal justices Ruth Ginsburg and Stephen Breyer with staunchly and reliably conservative justices.

If Trump fails, the political left will continue to exploit the ambiguous and contradictory language that Justice Scalia used in Heller to undermine the Second Amendment until the constitutional "right" to keep and bear arms is effectively nullified and turned into a discretionary, government-granted privilege, as it is today in places like New York and California.