Placeholder Image

Commentary

Scalia’s Gun Rights Legacy Is Likely to Stand, No Matter Who Replaces Him

It also leaves proponents of gun regulation plenty of room to pursue their agenda.

When I’ve asked students in my constitutional law courses to identify the contemporary member of the Supreme Court whose opinions they most admire, the justice named most often has been Antonin Scalia. For students of opposing ideology, that admiration has sometimes come grudgingly, but never hesitantly — such was the duly famous force and clarity of Scalia’s writings. But when I’ve pressed my classes to then identify the most important of Justice Scalia’s opinions, my question is often met with head-scratching.

Constitutional law casebooks are full of Scalia opinions, and yet — with one major exception — nearly all of them are dissents. His impact on constitutional methodology is massive: Originalism owes much of its current prominence to his scholarly and judicial output. But for all his stature and influence, and considering his thirty years of service as a justice, Scalia authored surprisingly few majority opinions for the court in constitutional cases.

That one major exception is District of Columbia v. Heller, the 2008 decision that breathed new life into the Second Amendment. In the case, the Supreme Court held for the first time that the Constitution protects an “individual” right to keep and bear a handgun for purposes of self-defense. Justice Scalia wrote for a five-justice majority, and his opinion has been called by many a triumph of the originalist approach that he spent his career championing. (Justice John Paul Stevens’ dissent, it should be noted, also took an originalist approach, but concluded that the Amendment was limited to protecting arms in connection with militia service.)

Following Scalia’s untimely passing on Saturday, the Heller decision provides a rallying point both for progressives anxious for President Barack Obama to successfully install a successor who will tilt the balance of the court to the left, as well as for conservatives angling to block a nomination in the hope that a Republican will win the White House and preserve the right’s majority on the court. But whichever side wins that fight, Scalia’s gun rights legacy looks secure — and it’s a legacy that gives gun reformers plenty of room for pressing their agenda. Overturning Heller is not only unlikely, but unnecessary to the cause of reasonable gun control.

On first read, Heller would appear to be a good candidate for reversal. It was a deeply 5-4 divided case, and even the majority opinion seems to bear hallmarks of unsteady compromise. History has shown that changes in personnel can make 5-4 decisions vulnerable. Consider 1989’s South Carolina v. Gathers, a 5-4 decision authored by Justice William Brennan, in which the court limited the use of victim impact evidence in criminal sentencing. The following year, Brennan stepped down from the court. One year later, Gathers was overturned by Payne v. Tennessee. Justice Scalia, who had dissented in Gathers, was in the majority in Payne.

It’s also highly plausible that any case reopening the Second Amendment questions raised in Heller would start with four votes against another expansive interpretation of individual gun rights — and that’s before a replacement to Scalia is seated. Two years after its Heller decision, in the case of McDonald v. City of Chicago, the justices again divided 5-4. (Justice Sonia Sotomayor had taken the place of retired Justice David Souter in dissent.) In that case, the question was whether the holding of Heller — which involved a D.C. regulation, and therefore only applied to the federal government — should be made applicable to state and local governments as well. In legal terms, this is known as the question of “incorporation.” The four dissenters not only voted against incorporation, but called into question the Heller result.

Even so, it seems unlikely that a change in the makeup of the court, on its own, will be enough to lead to Heller’s reversal. Though how much respect for precedent will bind the justices is hard to predict in any given case, they undoubtedly take it seriously. McDonald itself provides an example. In that case, the petitioner asked for the Second Amendment to be incorporated against the states through the Privileges and Immunities Clause — an argument that has strong historical justification, but little doctrinal support. Despite his affinity for history-based argument, Justice Scalia admonished the petitioners’ lawyer to stick to the well-worn path of substantive due process, “which as much as I think it’s wrong, even I have acquiesced in it.” Heller does not have nearly the same heritage as substantive due process, but stability-minded justices might nonetheless prefer to let it lie.

More importantly, for the court to reverse Heller, it would first have to take up another major Second Amendment case, and the chances of that happening anytime soon likely have decreased with Scalia’s death. Since Heller and McDonald, the Justices have declined dozens of petitions raising Second Amendment issues, much to the frustration of some advocates who argue that lower courts are under-enforcing gun rights. Since it only takes four votes to grant cert, it would be easy enough for the Heller majority to have rectified that perceived problem. Scalia, joined by Justice Thomas, certainly had gone on record as favoring such a move — both recently took the unusual step of dissenting from the court’s decision not to hear Second Amendment cases. But the other three justices in the Heller majority (Alito, Kennedy, and Chief Justice Roberts) have so far declined to vote to take a new significant Second Amendment case. With Scalia’s departure, it’s even less likely that such a petition will be granted a hearing.

Assuming that Heller remains on the books, what does it mean for the future of gun rights and gun regulation in the United States? Probably not as much as supporters of gun regulation fear, nor as much as gun rights proponents want. Despite broad claims about its likely impact, the “individual right” interpretation of the Second Amendment has not radically changed the legal landscape. Roughly 95 percent of Second Amendment challenges brought since Heller have failed, and the evolving doctrine leaves ample room for reasonable gun regulations. The primary obstacles to stronger gun laws remain political, not constitutional.

And who should advocates of gun control thank for this state of affairs? None other than Justice Scalia himself. That’s because even as Heller held in favor of the “individual” right to keep and bear arms, it emphasized that such a right — like all other constitutional rights — is subject to reasonable regulation. Scalia laid out that balance in this key paragraph from his opinion:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

In a footnote, Scalia added: “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” For a justice who labored to make constitutional rules certain and unchanging, leaving open the list of permissible restrictions on gun ownership and use is especially notable.

Heller is probably Justice Scalia’s most significant majority opinion in a constitutional case. It may well be the high water mark of originalism. No matter what happens with the composition of the court going forward, the particular — and heretofore contested — meaning of the Second Amendment that he established seems to be secure. But, thanks in part to the language of Heller itself, so is the constitutionality of reasonable gun control.

Joseph Blocher is a Professor of Law at Duke Law School. As an associate at O’Melveny & Myers LLP, he assisted the merits briefing for the District of Columbia in District of Columbia v. Heller.

[Photo: Flickr user Stephen Masker]