D.C. v. Heller, Roe v. Wade, and the Fallacy of Scalia’s “Textualism”
June 23, 2009
I have to preface this post by saying that I am an advocate of a Constitutionally protected right for citizens to keep and bear arms in self defense. But, like the Constitutionally protected right to privacy established in Roe v. Wade, this right is not something that is actually to be found within the original meaning of the Constitution. And though I believe that D.C. v. Heller, last year’s landmark Second Amendment Supreme Court case, had the right outcome in establishing such a right, it is unfortunately based on abysmally bad analysis on the part of the majority opinion author Justice Scalia. As the brilliant Judge Posner wrote of the Heller case:
The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property. It is doubtful that the amendment could even be thought to require that members of state militias be allowed to keep weapons in their homes, since that would reduce the militias’ effectiveness. Suppose part of a state’s militia was engaged in combat and needed additional weaponry. Would the militia’s commander have to collect the weapons from the homes of militiamen who had not been mobilized, as opposed to obtaining them from a storage facility? Since the purpose of the Second Amendment, judging from its language and background, was to assure the effectiveness of state militias, an interpretation that undermined their effectiveness by preventing states from making efficient arrangements for the storage and distribution of military weapons would not make sense.
The Court evaded the issue in Heller by cutting loose the Second Amendment from any concern with state militias (the “National Guard,” as they are now called). The majority opinion acknowledges that allowing people to keep guns in their homes cannot help the militias, because modern military weapons are not appropriate for home defense (most of them are too dangerous), and anyway the opinion says that the only weapons the Second Amendment entitles people to possess are ones that are not “highly unusual in society at large.” Modern military weapons are highly unusual in society at large. By creating a privilege to own guns of no interest to a militia, the Court decoupled the amendment’s two clauses. from Richard Posner, In Defense of Looseness
What Scalia did with the Heller opinion is undermine the very foundation of the outcome he wanted to achieve. By resorting to shoddy historical cherry-picking, Scalia debases his own closely held philosophy, and becomes himself an activist, (or to use his own turn of phrase, a “vigilante justice”). See, via Fabius Maximus:
If the courts are free to write the Constitution anew, they will write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority.” Antonin Scalia, Vigilante Justices: The Dying Constitution
So, by employing these vigilante tactics, Scalia is not only abrogating his notion of the Consitution as dead, but he is allowing those who oppose his politics to use his own words against him. Scalia’s logic as employed in Heller would lead him to endorse the outcome of Roe, a decision which he condemns on the grounds that the “Constitution says nothing about abortion.” Well, it also says nothing about a right to keeping handguns for self defense– so which is it? Indeed, the partisanship of Justices can sometimes be quite appalling, and just as Scalia is willing to violate his own principles as a means to a right-wing end in the Heller case, so too might a majority left-leaning court be willing to adopt an “textualist” position for the purpose of overthrowing Heller.