Advocates of the Second Amendment and constitutionally limited government were dealt a massive blow last week when Justice Antonin Scalia passed away. Losing this titan of the judiciary will have a centuries-long impact on legal issues in the United States. Justice Scalia’s legal opinions leave a profound jurisprudence, especially as it relates to the Second Amendment.
In District of Columbia v. Heller, Justice Scalia wrote the majority opinion that overturned D.C.’s ban on handgun ownership. His ruling helped re-establish the Second Amendment as an individual right that, in the words of Justice Scalia, “belongs to all Americans.” Here are some of the best quotes from Justice Scalia’s Heller opinion.
First, Justice Scalia blows apart the claim that one must participate in a government militia to exercise the Second Amendment:
“…the ‘militia’ in colonial America consisted of a subset of ‘the people’—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to ‘keep and bear Arms’ in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as ‘the people.’”
The Justice then calls upon the history of weapons prohibition, pointing out a scenario our framers likely considered:
“Thus, if petitioners are correct, the Second Amendment protects citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a select militia of the sort the Stuart kings found useful, but not the people’s militia that was the concern of the founding generation.”
It’s clear that Justice Scalia recognizes the right to keep and bear arms is not and should never be contingent upon serving in a government militia.
Justice Scalia then takes on the argument that the framers of the Constitution could hardly imagine anything beyond muskets, therefore, we are free to ban certain kinds of more advanced weapons. He retorts:
“Just as the First Amendment protects modern forms of communications…and the Fourth Amendment applies to modern forms of search…the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
Later, Justice Scalia addresses the central issue of this case: in which the District of Columbia barred individuals from owning handguns. He argues that banning the ownership of such a preferred and common form of firearm clearly violated the Second Amendment, and that storage laws adversely affect one’s ability to defend oneself saying:
“…the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute.”
Perhaps most compellingly, Justice Scalia reiterated that the Constitution only pronounces what are already natural rights of humans, declaring:
“…it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876) , ‘[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.’”
This reminds all Americans that government does not grant rights upon its citizens. Rather, it is through the consent of the governed that government has any power at all. The rights to life, liberty, and property are natural rights of Americans—not rights bestowed upon subjects.
And while the Justice conceded that many believe the Second Amendment to be a relic in need of serious revision or outright repeal. Even still, the Justice reminded Americans and the Court of its place in our constitutional republic:
“Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”
Crucially, Justice Scalia leaves a legacy of recognizing the limits of the government’s authority. His words, especially on the Second Amendment, make clear the value of restraining the impulses of overbearing institutions. Finally, he leaves our nation with something to ponder as the president nominates a ninth judge to the court.
“A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.”