So Let’s Say Justice Scalia Writes D.C. v. Heller …
posted by Mike O'Shea
Tomorrow may be the big day. (Or we might have to wait again. At least I’m improving my calcium intake.) Court-watchers have noticed that, with the issuance of yesterday’s opinion by Justice Souter in the right-to-counsel case of Rothgery v. Gillespie County, the only case left from the Supreme Court’s March sitting is D.C. v. Heller, and the only Justice who hasn’t written any majority opinions from that sitting is … Justice Antonin Scalia. Tom Goldstein thinks it’s “exceptionally likely” that Scalia was assigned to write the Court’s lead opinion in the most important Second Amendment case in American history.
What could that mean for the decision in Heller? As I’ll explain, I think a Scalia-authored opinion would be great news for those who are mainly concerned with the Second Amendment as a limit on federal gun control, but somewhat ambiguous news — at least in the short term — for those who hope for the incorporation of the Second Amendment as a check on state and municipal governments.
In the Heller oral argument, Justice Scalia was the clearest voice in favor of the broad individual rights view of the Second Amendment — what pro-rights scholars often call the “Standard Model.” He emphatically rejected the various “collective rights” theories of the Second Amendment, under which it protects only a prerogative of state governments rather than a right of individuals. Justice Scalia also brought up Blackstone’s emphasis on the right to arms as a necessary adjunct of the right of self-defense, and suggested that D.C.’s high crime rates, far from supporting gun prohibition, were instead “[a]ll the more reason to allow a homeowner to have a handgun.” Scalia suggested that under U.S. v. Miller, individuals have a Second Amendment right to keep and use a broad class of firearms in “common use” at this time — though not arms that are “uncommon” for private citizens, such as machine guns.
(ASIDE: Note that under this view, while full-auto M-4s and M-16s may be unprotected by the Second Amendment, there would be powerful arguments that popular, modern semi-automatic rifles like the AR-15 — a vastly more common firearm in private hands today than machine guns — are indeed protected arms “in common use,” so that an attempt by Congress to renew the expired federal semi-auto “assault weapons” ban could be held unconstitutional.)
Justice Scalia was also the strongest voice in oral argument for applying strict scrutiny to laws that threaten Second Amendment interests, as the Court does with many types of laws that impinge on First Amendment freedoms.
At one point in the argument Scalia, a hunter, displayed his personal familiarity with America’s legitimate gun culture. Pressing counsel for D.C. on a hypothetical involving the constitutionality of a limit on the number of guns individuals could own, Justice Scalia suggested that Americans are entitled to own a wide range of guns for different needs — even name-checking a couple of popular rifle cartridges: “You mean you can’t have … you know, a turkey gun and a duck gun and a .30-06 and a .270 and … different hunting guns for different [purposes]?”
Thus, as a limitation on the federal government — not just D.C., but also Congress, the President, and the BATFE — a Scalia-penned majority opinion in Heller is likely to give Second Amendment advocates all that they can realistically expect from this Court.
The question of incorporation is thornier. Justice Scalia wrote about the Second Amendment in his stimulating book A Matter of Interpretation: Federal Courts and the Law (1997). (I was reminded of this passage by a recent discussion thread on a popular firearms forum.) There, Scalia seemed to embrace a broad individual-rights view of the Amendment, consistent with his remarks a decade later in the Heller argument. But he also seemed skeptical about incorporating the Amendment:
[T]he Second Amendment [i]s a guarantee that the federal government will not interfere with the individual’s right to bear arms for self-defense. … Dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that. … [T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states.
Id. at 136-37 n.13 (emphasis added).
Hmm. That’s literally true as far as it goes; just Barron v. Baltimore. But far more to the point: Is the Second Amendment plus the Fourteenth Amendment a “limitation upon arms control by the states”? Perhaps Scalia was just being fastidious with his language in the quoted passage — expressing the point that, strictly speaking, it is not the provisions of the Bill of Rights that are applicable to the states, but rather the Fourteenth Amendment, which has been interpreted as incorporating the content of (most of) those amendments. Or perhaps he really meant to signal skepticism about Second Amendment incorporation.
If an individual right prevails in Heller, it’s not going to be easy to avoid the incorporation of the right to arms, no matter how the Court chooses to approach it. We already have about a century’s worth of precedents that gradually incorporated most of the individual amendments in the Bill of Rights against the states via the Fourteenth Amendment‘s Due Process Clause. The test for whether an amendment qualifies for “selective incorporation” under this approach stresses several factors, such as whether the right has an English antecedent; is widely protected in state constitutions; and continues to enjoy strong support today. Suffice to say that the right to arms satisfies these factors — more so than many of the rights the Court has already incorporated.
Alternately, one could take Justice Thomas’s (and Justice Hugo Black’s) more originalist approach to incorporation, and ask whether the right to arms is a “privilege or immunity” that was understood to be protected by the Privileges or Immunities Clause of the Fourteenth Amendment. Here again, there are substantial historical arguments for incorporating some form of the right to arms, as scholars such as Akhil Amar and Stephen Halbrook have recognized — again, as strong or stronger than the arguments for other rights the Court has previously incorporated.
Justice Scalia has not previously sought to undo the 20th-century consensus on incorporation. Some of his most famous opinions, such as Crawford v. Washington (2004), which refurbished the Sixth Amendment’s Confrontation Clause, are premised upon the incorporation of the Bill of Rights against the states. (Justice Thomas has suggested de-incorporating some Bill of Rights guarantees, such as the Establishment Clause, but still appears to support a substantial amount of incorporation of individual rights against the states.)
In the long term, some form of Second Amendment incorporation is probably inevitable. That issue is not on the table in Heller, which deals with the District of Columbia rather than a state, but as I’ve suggested before, the Court can choose to drop hints about the incorporation question in its opinion. The opinion may be circumspect about this if Justice Scalia writes it. We’ll see.
A last thought: Many are surprised at the prospect of Justice Scalia drafting the majority opinion in Heller. Scalia holds strong views and is sometimes reluctant to temper his expression of them. This can cause him to lose votes when he drafts a would-be majority opinion. If there is a pro-rights majority, one might have expected Chief Justice Roberts to assign the opinion to himself or Justice Kennedy in order to hold five votes in this landmark case.
It’s true: there is a risk of a Scalia-written plurality accompanied by a separate (and controlling) Kennedy concurrence in the judgment. Yet Scalia sometimes holds his Court — even in important and controversial cases. Against the familiar examples like Harmelin and Michael H., where, on a key point, Scalia’s uncompromising opinions merely announced the judgment of a fractured Court, we must balance the cases like Kyllo — a calm, measured opinion that held five firm votes in an important Fourth Amendment case. Nor are all of Scalia’s successful majority opinions so modestly written. Printz v. U.S. and Crawford v. Washington were far-reaching.
I look forward to the Justices rendering most of my prognostications about Heller moot by deciding the case — hopefully tomorrow.