Scalia Made It All About Four Words

With just four months remaining before the Supreme Court rules in New York Rifle and Pistol Association (NYRPA) v Bruen, time is clearly very short to try to have an impact on justices’ thinking and analysis on this incredibly significant – and threatening – Second Amendment case.  

June is virtually tomorrow, and greater random violence could lie ahead come fall.

Indeed, the conceptual outlines of a decision may well have already taken shape in the Court’s deliberative black box; there are some signs that conservative justices will support the petitioners’ call for a relaxation of NY state regulations restricting concealed carry of firearms. 

There is still time and space to call out the selective and suspect reasoning of the most recent “landmark” ruling, Heller v District of Columbia (2008); opinion shapers and thought leaders need to speak out, frequently and eloquently.  They need to draw public scrutiny and attention to the textual issues, flawed history, manipulated militia narrative, and, most importantly, the questionable and implicitly destabilizing reasoning that underpins the rote defense of those, including Scalia, for whom the Second Amendment is really only about its final four words “shall not be infringed”.

There are a number of dimensions to this problematic, indeed dangerous, approach to the 27 word, 231 year old Amendment which was written in and for a different political, social and technological age, an age far distant from that of the United States of 2022.  We should focus on those dimensions, but the starting point must be a very close and critical look at the Court’s basic premise in its decision in Heller and the tenuous (a generous characterization) basis for Justice Scalia’s 5-4 majority opinion.

It is worth highlighting two things at this juncture, that the Scalia majority opinion seems preemptively written, and that it achieved the barest majority.  For both reasons, the majority opinion in Heller provides little basis as a foundation for a ruling favoring the NYRPA, which seeks to expand Heller’s home defense argument to all of the country’s streets and public spaces.  How one gets from “a man’s home is his castle” to” the streets are his castle” is unfathomable in its logic and unacceptable as a matter of law and public policy.

It is equally unfathomable and unacceptable that the nation’s law enforcement organizations and their leaders are not out in full force arguing against the NYRPA position out of simple concern for the protection of their officers on the street.  It is clear that officers are understandably nervous.  Something is wrong with both the general situation of relative police silence on gun safety regulations and the particular circumstances of individual and group police lethal actions, and neither contributes to greater public security and rule of law. A SCOTUS ruling for NYRPA only makes this situation worse.

We really must look more closely at Scalia’s Heller argument.  In his 60 page meandering presentation, he opens with a brief 6 page cursory amble of assertions and hypotheticals to reject the importance of the Amendment’s “prefatory” clause on “a well organized militia” in order to reach the startling starting point conclusion on page 7:

 “We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.”

So, that’s the point of departure for Scalia and the majority, based on a disingenuous “my assertion stands” argument from the get go, dismissing the Amendment’s first 13 words as simply being of no consequence. 

His opening presentation, while failing to make the case for his starting point conclusion, does prepare the ground for a wandering tour of English and British history in an attempt to make the case for armed self-defense, citing references from time to time and place to place with the arms in question single shot firearms, swords or knives, and not multi round firearms, much less modern military capable assault rifles.

He eventually argues further that modern weapons are irrelevant to the discussion of the right that “shall not be infringed”.

According to Scalia (page 56): It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

So, for Scalia, full steam ahead.

At this point, one can only shrug with incredulity.

As we wade through the history and discussion, we find that Scalia does throw a couples of bones to the common sense gun safety crowd, writing on page 54: “Like most rights, the right secured by the Second Amendment is not unlimited.” and on page 22 “Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose”.

Meanwhile, the public campaign supporting Heller and presaging a SCOTUS ruling in favor of the petition NYRPA has begun with a February 4 conservative op-ed piece in the Washington Post. 

The author posits the notion that lead Heller dissenter and soon to retire Justice Breyer could bolster his legacy by stepping away from his convincing dissent and stepping up as a compromiser to write a majority opinion (implicitly to join the six conservative justices) that somehow concedes to the NYRPA position but frames the decision in a way that also grants space for some sensible gun safety measures that the majority of Americans, and this writer, believe are so desperately needed today.

Adroit thinking indeed for the “shall not be infringed” tacticians but something that can’t be taken to the bank.

Justice Breyer is a man of demonstrated conviction.  Let’s hope he is willing to sustain, indeed strengthen, his clear and convincing position in dissent in Heller.

And let’s hope that the majority of the Supreme Court justices will, as they should, recognize and accept the substance of the prefatory clause setting the militia context for the operative clause about keeping and bearing arms.

Indeed, less than six months after the Bill of Rights came into force on December 15, 1791, the Congress passed needed legislation, with President Washington signing in to law, on May 8, 1792, to create a “well regulated” militia.  And indeed, that system was soon relied upon, and led by Washington himself, to put down the September 1794 insurrection in western Pennsylvania known as the “Whiskey Rebellion”. 

With that as a starting point for the USA-era militia, that is, putting down insurrections, militia shortcomings through the 19th century led to the creation of the National Guard in 1903, and a new era prevailed, and the Second Amendment’s “well organized militia” became an obsolete relic of American history.

Let’s hope that, as they deliberate on NYRPA v Bruen, the Justices come to realize and act upon — as they chose not to in Heller — the hard truth that the Amendment as written does not correspond at all to 21st century realities or social mores. 

Equally importantly: the Second Amendment’s impact is actually to corrode societal comity and stability, while facilitating the annual loss of tens of thousands of innocent lives, imposing real economic costs on the country, and endangering the lives of our respected and valued law enforcement officers.

Please make the effort to read Heller and explore the arguments of NYRPA v Bruen.  Speak out for accurate history, credible and sound jurisprudence, and simple common sense.  Speak out and loudly about what is at stake, in NYRPA v Bruen and for the country. 

Don’t let the Court hide behind a questionable majority opinion that some would use to open the door to greater gun violence in our great land.