On June 26, 2008, the Supreme Court in a 5-4 decision in District of Columbia et al v. Heller ruled in the majority opinion written by Antonin Scalia that the 2nd Amendment “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
The 2nd 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.
Scalia dismissed the first part of the Amendment: “The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause.” This is poppycock. As an “originalist,” Scalia knows that the Founders did not include reference to a “militia” on a whim. The holding of arms by citizens was meant as a check, not of those citizens, but of the states in which they lived against an oppressive federal government or social insurrection, hence the use of “militia” in the text. This question was resolved nearly 150 years ago in something called the Civil War. Now the Founders, if they had wished to recognize an individual right to possess weapons, could easily have done so, but they did not. It is only by reading out the first part of the amendment or misreading it, both of which Scalia does, that he arrives at his conclusion.
Scalia does not end there. He can not. Having done away with the restriction contained in the amendment’s initial phrase, he is left with a now unfettered, absolute freedom in its second. So if your neighbor kept a nuke in his or her backyard, or, worse from Justice Scalia’s point of view, it was one of his neighbors, you and he would have no recourse. This makes even him uncomfortable and he immediately backtracks.
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
Justice Scalia is a lucky man that not only does he know what the Founders meant but that they always agree with him –even when history and a plain reading of the text would suggest the opposite. What Scalia along with the other conservative justices has done here is simply to substitute a Second Amendment that they would like to see in the Constitution for the one that is actually there. It is a radical, even “activist”, thing they have done. Roberts and Alito, in particular, swore up and down at their confirmation hearings their adherence to the principle of stare decisis (respect for precedent). Their vote in this case, if further evidence were needed, shows they lied.
What is important too to remember is that even if there were no Second Amendment, this would not mean that guns and other weapons would be automatically banned. It would just mean that there could be restrictions on their use and ownership, much as there are for cars, tobacco, and alcohol. The question, as in this case, is where to draw those lines, and for that you do not need a Supreme Court intervening with its creative writing approach to the Constitution.