copyright 2009 Keith McWalter

I open any opinion by Justice Scalia with the same kind of anticipation with which one greets the approach of a family cat with something dead in its mouth. What has it got now, and did I really want it killed and brought to me? 

The majority opinion (this was a 5-to-4 decision) in District of Columbia v. Heller, handed down last year, is classic Scalia. The opinion is made to turn on the question of whether the Second Amendment’s statement that “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” confers an irreducible individual right, or is intended to preserve the possibility of forming a militia when necesary (i.e., is a “collective” right linked to military service). Said differently, the question is whether this statement should be in any way limited to its historical context, or expresses a right so fundamental in nature (like the right of free speech contained in the First Amendment) that it should float free of its 18th Century context and persist in literal terms into the 21st.

Justice Scalia’s opinion is essentially a sequence of simplistic — one might say reductionist — recitations of what each prominent word and phrase in that statement is said to mean in one or more dictionaries, coupled with some sprightly (if pedantic) digressions into the historical context of those words from before the signing of the Constitution through the Civil War. Interspersed in all this are healthy dollops of scorn heaped on the dissenting Justices, in particular Justices Stevens and Breyer, whose views are at varous points called “profoundly mistaken,” “a fundamental misunderstanding of a court’s interpretive task,” “simply wrong” and — not to put too fine a point on it — “grotesque”. (One can only imagine what these guys say to each other in the men’s room.)

The opinion is a textbook example of “strict constructionism” (which one can most readily grasp as the judicial equivalent of religious fundamentalism). Its overall tone is that of working out an elaborate crossword puzzle (does the “prefatory clause” limit the “operative clause”; is the phrase “bear arms” idiomatic or literal?), rather than that of rendering an opinion that will directly affect — lethally, in thousands of cases — the life of a society. Completely absent is any consideration of the real-life data surrounding the use of handguns in the United States, who owns, shoots or dies by them, what impact their availability has on the drug trade or law enforcement in other countries (e.g., Mexico), or what range of possible restrictions on same might apply today or be applied in the future. There is only passing (and one-sided) analysis of case law precedent on the point. Rather, it is as though Scalia put a bunch of English and History majors (who happened to have law degrees) in a room and told them not to come out until anyone could own a handgun in D.C.

You can tell I’m not crazy about the result. I happen to think this is possibly the most pernicious ruling handed down by the Supreme Court since Bush v. Gore. But leave that aside. What bears emphasis is that the opinion in D.C. v. Heller is, without question, a piece of judicial activism precisely of the kind decried by opponents of abortion rights, gay rights, and gun control. Scalia has produced an aggressively activist opinion in strict constructionist drag.

Consider the factual and legal context: a D.C. law, enacted by duly-elected representatives of the aforementioned “people,” bans carrying handguns and prohibits the registration of handguns. It also requires residents to keep lawfully-owned firearms of any kind unloaded and disassembled, or bound by a trigger lock or similiar device. It does not ban the possesion of all guns, nor does it prevent the use of guns that are outside its scope. It seems, in fact, carefully tailored to balance the “competing interests” that are the traditional grist of Constitutional rights cases: the wish of the society and its elected legislators to regulate certain potentially dangerous or dysfunctional behaviors, weighed against the right of us all to act in self-interested, whimsical, or anti-social ways.

Scalia strikes down the law to the root. None of it survives, not even the trigger lock requirement, on the unexplained ground that the Second Amendment requires not only that handguns be available, but that they be available for “immediate” use. This takes us into Roe v. Wade-land in terms of judicial micro-managing of the pre-supposed consequences of a Constitutional phrase. The plausible argument that, even assuming the Second Amendment confers an individual right to own a gun, it should be viewed in its historical context at least insofar as the nature of the firearm is concerned, is likewise dismissed as ‘”frivolous.”

Rather, Scalia, astonishingly, looks to the popularity of the particular weapon as the indicia of its Constitutional protection: “It is enough to note…that the American people have considered the handgun to be the quintessential self-defense weapon….[for] whatever reason…and a complete prohibition of their use is invalid.” One might also note the handgun is the D.C. gang-banger’s offensive weapon of choice too, but that datum doesn’t earn the majority’s attention. Presumably the “popularity” test might bring any number of weapons within Constitutional ambit; we’re limited only by our collective imaginations and craziness.

This is social engineering in the guise of jurisprudence — again, exactly what the right wing hates when the shoe is on the other judicial foot. Except in cultural desirability (depending on your point of view), it is indistinguishable from the California Supreme Court striking down a statute that prohibits gay marriage. We either like freedom or we don’t — which is it? The answer, as always, is unfortunately that we like our kind of freedom and not the other guy’s.

Strict constructionism is not the antithesis of judicial activism, but just another form of it, as this ruling makes clear. Judges and jounalists both inhabit that limbo region where opinion can be easily tricked out as “fact” and polemicism poses as analysis. There is no natural law, folks, and there is likewise no single, perfect reading of even so apparently simple a sentence as that contained in the Second Amendment. There is only the will of the majority, in this particular case a majority composed of five. One can only assume that were Justices Roberts or, God help us, Thomas not on the panel, the ruling would have gone the other way. Such is life in our Republic lo, these last many years. The very fact that the Executive Branch nominates Supreme Court judges and the Legislative Branch approves or disapproves of them underscores that all judges are regarded, at bottom, as “activist” — meaning likely to carry out a preconceived agenda to their constituents’ ends. The sooner we all recognize this, the more honest our view of the judiciary will become.