DC v. Heller: Scalia's Decision Will Backfire

So much for Scalia's much-vaunted "originalism," which advocates reading the Constitution as it would have been understood at the time of the Founding.
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A virtuoso performance -- that's the only way to describe Justice Antonin Scalia's majority
opinion in yesterday's DC v. Heller decision.

After all, here was a jurist whose entire career is supposedly based on scrupulous fidelity to the words of the Founding Fathers, and Scalia had to figure out a way to disregard thirteen of those precious words. Here's how he did it =- and why his decision will eventually come back to haunt conservatives.

He starts with the text of the Second Amendment, which says: "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." For decades, the conventional (and common-sense) interpretation of the amendment has assumed that the first thirteen words of the amendment -- the bit about the "well-regulated militia" -- informs the purpose of the rest of the amendment.

Naturally, Scalia does not like those first thirteen words, so he discusses the amendment in reverse order, starting with the "operative" clause ("the right of the people to keep and bear Arms shall not be infringed"), and leaving the militia-related language to the end. By reading the amendment backwards, Scalia begins with an unfettered right "to keep and bear arms" (look, that's what it says!), and, having established such a right, the mere "prefatory" words of the first half of the amendment become nothing more than window dressing.

Powerful stuff, no? Perhaps all Constitutional amendments will now be read back-to-front; or at least the first ten amendments, which comprise the Rights of Bill.

Quite apart from his re-ordering of the amendment, Scalia plays fast-and-loose with the words of the text. The right established in the "operative" clause is "to keep and bear arms." Time and again, scholars have shown that the phrase "bear arms" had an overwhelmingly military meaning in the eighteenth century. A group of professors of linguistics and English submitted an amicus curiae ("friend of the court") brief, citing a survey of 115 examples of the phrase "bear arms" in books and pamphlets published at the time of the Constitution. In all but five of those examples, "bear arms" was used to convey military action.

Given the choice between the commonplace military interpretation of "bear arms" and the exceedingly rare non-military interpretation, Scalia opts for the non-military usage -- which, of course, makes perfect sense when interpreting a sentence which begins with a tribute to a "well regulated militia." To bolster his conclusion, Scalia relies on a 1998 Supreme Court decision which actually concerned the interpretation of the phrase "carries a firearm."

So much for Scalia's much-vaunted "originalism," which advocates reading the Constitution as it would have been understood at the time of the Founding.

Scalia does concede that there is a "link" between the two clauses of the Second Amendment, but he argues that the prefatory clause of the Amendment merely announces "a" purpose of the right to bear arms, not "the" purpose of the right. In other words, what the Founders meant to say was: "every person has an unfettered right to keep and bear arms, and as an added plus, the militia will be armed too!"

This approach is bound to backfire on conservatives. The hallmark of conservative interpretation of the Constitution has -- until now -- been to stick closely to the text. Most importantly, the long-running campaign to reverse the New Deal expansion of federal power is based on the argument that the "enumerated powers" of Article I (Section 8) must be read narrowly. In 2000, for example, the Justices overturned the Violence Against Women Act because they could find no authority for the act in Section 8.

But if Scalia can twist the language of the Constitution to read rights expansively, then he can scarcely object to those who read the Constitution's powers expansively. Advocates can argue that Section 8 of Article I is just like the militia clause of the Second Amendment; that is, it merely announces some of the purposes of Congressional power -- not all of the purposes. Of all people, Scalia should realize that once you disregard the text, even thirteen little words, you have set a precedent for generations to come.

For now, conservatives are hailing Scalia's decision as a brilliant piece of jurisprudence, but in time they will realize that he was shooting blanks.

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