Why Liberals Should Thank Justice Scalia for Gun Control

One of the ironies of the gun-control debate is that Justice Antonin Scalia’s ruling in an important Supreme Court case left the door open to gun control. The conservative jurist and star of the ideological Right didn’t get soft and squishy in his 2008 ruling in District of Columbia v. Heller, the Court’s biggest ruling on guns in modern times, though Gun Owners of America Executive Director Larry Pratt says he did.

Not really. Scalia authored a 5-4 ruling that struck down D.C.’s law banning handguns and as well as its requirement that owners purchase and use a gun lock and keep their guns unloaded. He took on a liberal shibboleth that the Second Amendment only applies to well-regulated militias and not to individuals. No, he said, the constitutional protection applies to individuals, too.

The ruling was decried by the Court’s liberal members, the D.C. government, and any number of groups. (In 2007, as the case moved toward the Supreme Court, I wrote about the murder of a friend who was carjacked in the District. I wrote that the ban was bad policy—I thought people should be allowed to have guns for the purpose of self-protection—but in the interests of federalism, D.C. ought to be enable to enact what it wants. Photos from the funeral are here thanks to Stephen Voss.)

Some five years later, after the Newtown, Conn., tragedy, the ruling is back in the spotlight. If President Obama can somehow convince Congress to pass the measures he’s most wedded to—a ban on large magazines and certain semiautomatic weapons and extending background checks on gun purchases to close the gun-show loophole—then he’s bound to face court challenges from gun groups and gun owners who will claim that any such laws are unconstitutional. While there’s no telling what the Court might do in the future, if you look back at Scalia’s opinion in Heller, it suggests that there’s less danger of those kinds of restrictions being overturned than there was with the Affordable Care Act—most of which the Court upheld, including the controversial individual mandate. There seems even less likelihood that the Court would pull another Citizens United, the sweeping decision that the Court used to overturn a longstanding restrictions on campaign finance. They may not side with every bad, but some they surely will.

Scalia will never be a hero to liberals, of course. But his emphasis on originalism and textualism seems to coincide with liberal interests on guns precisely because there were restrictions on guns during the colonial era; his reading of the original intent of the law was that it allowed an average person to have a typical firearm. Indeed, back in July, when he was promoting a new book, Scalia told Fox News that the Second Amendment “undoubtedly” permits some restrictions on firearms.

Look at the syllabus of the Court’s brief that he wrote:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. [United States v.] Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

Heller may allow all of the Obama proposals to be upheld, but one never knows. Still, even as he led the Court to strike down D.C.’s handgun ban, Scalia issued an opinion rich with clues for how he might rule. The opinion talks a lot about weapons that are widely held. When he heard arguments for the case, Scalia said, “I don’t know that a lot of people have machine guns or armor piercing bullets.” He notes “dangerous and unusual weapons.” If gun advocates can make the case that a badass Bushmaster is a commonly held weapon, they might get some traction with Scalia, but if high-powered, semiautomatic weapons with large magazines are considered a subculture, it’s hard to see Scalia voting to strike down those laws. (He’s already made it clear that the Constitution’s phrase “bear arms” means something that you can carry, so tanks and planes are out, in case you were worried.)

Former Justice John Paul Stevens said last fall, as quoted by The New York Times: “Even as generously construed in Heller, the Second Amendment provides no obstacle to regulations prohibiting the ownership or use of the sorts of automatic weapons used in the tragic multiple killings in Virginia, Colorado, and Arizona in recent years. The failure of Congress to take any action to minimize the risk of similar tragedies in the future cannot be blamed on the Court’s decision in Heller.” On that, he and Scalia might agree.