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Antonin Scalia and the Clear and Present Danger of Second Amendment Fundamentalism

By Bill Blum
2
Bill Blum
Contributor
Bill Blum is a former judge and death penalty defense attorney. He is the author of three legal thrillers published by Penguin/Putnam ("Prejudicial Error," "The Last Appeal" and "The Face of Justice") and is a…
Bill Blum

Antonin Scalia, a Supreme Court justice from 1986 until his death in February, brought an incendiary temperament to the bench. (YouTube)

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. —Second Amendment to the Constitution of the United States.

If you’re looking for someone to blame for the continuing partisan paralysis on gun control after the Orlando bloodbath, I have a candidate for your consideration. And no, it’s not congressional Republicans, or the National Rifle Association, although their fingerprints are all over the country’s inaction in the face of our unyielding epidemic of gun violence.

My nominee is the late Supreme Court Justice Antonin Scalia.

Scalia, who died in his sleep in February while on a hunting trip in Texas, gets my nod as the author of the 5-4 majority opinion in the landmark 2008 decision, District of Columbia v. Heller, which held for the first time that the Second Amendment protects an individual right to bear arms.

Now, of course, I’m not saying that Scalia was in any way directly responsible for the murderous rampage of the Orlando shooter, Omar Mateen, or the perpetrators of the other mass shootings that have ravaged American communities over the past three decades, or even for the lunacy of the gun-waving, Constitution-thumping Cliven Bundy clan and other proponents of the “sovereign citizen” movement.

But on an array of issues ranging from gay rights to gun rights, Scalia brought an incendiary temperament to the bench, and the rhetorical style of a fuming political activist that inspired an almost worshipful devotion from his admirers and discouraged civility, reasoned discourse and, ultimately, respect for law.

Beginning with his appointment to the high court in 1986, Scalia was the intellectual leader of what I and many other legal commentators have termed a conservative “judicial counterrevolution,” aimed at wresting control of the nation’s most powerful legal body from the legacy of the liberal jurists who rose to power in the 1950s and ’60s under the leadership of then-Chief Justice Earl Warren.

Scalia was also a key architect of the jurisprudential theory of original intent—the idea that judges should interpret the Constitution according to the intent of the framers and the purported “original public meaning” of the terminology used in the Constitution.

Heller was his crowning glory. In it, he delved selectively into the archives of colonial history and the early years of the republic to conclude that the framers of the Second Amendment actually intended to protect purely personal gun ownership rights. In doing so, he broke with the great weight of prior scholarship and court opinions, including the Supreme Court’s 1939 decision in United States v. Miller, which had held the amendment protected private gun ownership only in connection with service in long-since antiquated state militia.

Although Heller was technically limited to gun ownership in the nation’s capital and other federal venues, the court extended its individual-rights analysis to the states two years later in the case of McDonald v. Chicago, a 5-4 ruling authored by Justice Samuel Alito, with Scalia concurring — and doubtless lending a guiding hand. Together, the decisions elevated gun ownership in America to the status of a basic national right, alongside free speech, the privilege against self-incrimination, equal protection, due process and other constitutional bulwarks.

In fairness to Scalia, his Heller opinion did not foreclose new gun-control legislation or directly threaten most measures already on the books. In fact, he wrote that the Second Amendment, like all other constitutional rights, is subject to “reasonable regulation.”

But when you hear Republican politicians like Sens. John McCain, Tom Cotton, Marco Rubio and Mitch McConnell, or the National Rifle Association’s loud-mouthed executive vice president, Wayne LaPierre, explain why they oppose even the most modest of new federal reforms, they inevitably invoke an ideology of Second Amendment fundamentalism animated by Scalia and Heller.

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