The always-worth-reading Jacob Sullum has an interesting piece over at Reason today, in which he examines the future of the Second Amendment under a Scalia-less Supreme Court. As usual, Sullum makes some excellent points, but I must disagree with him on one thing:
Writing for the five-justice majority in District of Columbia v. Heller, the 2008 decision in which the Supreme Court recognized that the Second Amendment protects an individual right to armed self-defense, Scalia said that right was violated by a law that banned handguns and required owners of long guns to disable them with trigger locks or keep them unloaded and disassembled. But he strongly implied that nearly every other existing gun control law would pass constitutional muster.
I am not convinced by this at all. It is true that Scalia’s majority opinion in Heller ruled that the scope of the amendment is not infinite. But it is not true that the Court “implied” that “nearly every other existing gun control law would pass constitutional muster.” Indeed, if you look at Scalia’s subsequent output, it is difficult not to conclude that he considered at least some of the existing gun control laws to be in violation of the Constitution’s text. Musing on the question in 2012, Scalia seemed unsure as to what the originally understood definition of “arms” would mean in a modern context:
Fox’s Chris Wallace asked about weapons that can fire off a hundred shots in a minute, in reference to the recent mass murder in a movie theater in Aurora.
“We’ll see,” said Justice Scalia, referring to the need to wait on a court case that gets at the question. He then volunteered that the second amendment refers to the right to “keep and bear” arms, so that it “does not apply to arms that cannot be hand-carried…It doesn’t apply to cannons.”
Then the justice asked himself about “hand-held rocket launchers that can bring down airplanes.” About that, he ventured only, “it will have to be decided.”
“My starting point and ending point probably will be what limitations are within the understood limitations that the society had at the time,” Justice Scalia said. “They had some limitation on the nature of arms that could be born. So, we’ll see what those limitations are as applied to modern weapons.”
At the time of ratification, “arms” were defined thusly. An AR-15 is a “carbine” . . .
Moreover, as Josh Blackman noted in these pages last year, Scalia happily signed on to two dissents in which Clarence Thomas openly criticized the Court for denying writs of certiorari to plaintiffs who were seeking Heller’s protection. In one of these cases, the issue at stake was an Illinois city’s ban on so-called “assault weapons.” Per Blackman:
The City of Highland Park, Ill., criminalized all magazines that can hold more than ten bullets and so-called “assault weapons.” These are the sorts of guns and accessories owned by millions of law-abiding Americans for self-defense, hunting, and target shooting. The Seventh Circuit upheld both of these laws, limiting Heller to forbid only total bans on handguns — no other categorical bans would be affected. Plaintiffs appealed the case to the Supreme Court.
Once again, the Court denied review. And for the second time in six months, with much more powerful language, Justice Thomas penned a thoughtful dissent joined by Justice Scalia, decided yesterday. Thomas charged that the Seventh Circuit had a “crabbed reading of Heller” and “ignores Heller’s fundamental premise” that the Second Amendment “is an independent, individual right” unconnected to “what the militia needs.” Most strikingly, the court of appeals explained that even if the law didn’t actually improve safety, the law was valid because it “may increase the public’s sense of safety.” In other words, it makes people feel good. Thomas dismissed such faulty reasoning. “If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing.”
The usually even-tempered Thomas, however, saved his sharpest criticisms for the seven other justices, and by implication Chief Justice Roberts and Justices Kennedy and Alito. The trio joined the majority in Heller and McDonald, but have been absent since. Thomas faulted the “Court’s refusal to review a decision that flouts two of our Second Amendment precedents.” This stands in contrast to other cases in which lower courts violate constitution rights and in which the Court summarily reverses, without even the benefit of oral argument. “There is no basis for a different result when our Second Amendment precedents are at stake,” Thomas charged.
I find it difficult to imagine that Thomas was this upset because he had been denied the opportunity to affirm that the law in question was constitutional. Likewise, I cannot imagine that Scalia signed onto the dissent because he hoped to prove Heller had no teeth at all beyond prohibiting absolute handgun bans. If the pair were satisfied that the status quo was consistent with the Constitution’s text, they could happily have left it be. They didn’t, preferring instead to issue a sharply worded admonition. There is almost certainly a good reason for that.