Second Amendment Ruling Is Justice Scalia’s Originalism ‘Legacy’

U.S. Supreme Court

Second Amendment Ruling Is Justice Scalia’s Originalism ‘Legacy’

Posted Jun 27, 2008, 05:25 am CST
By Debra Cassens Weiss

The majority ruling yesterday by Justice Antonin Scalia finding a Second Amendment right to own handguns in the home is “his most important in his 22 years on the court,” according to a New York Times story.

Scalia has a no-compromise style that often leads to loss of his colleagues’ votes, USA Today reports. But yesterday’s 5-4 decision has observers suggesting it is a symbol of the influence of the 72-year-old Scalia.

Scalia has long argued that the meaning of the Constitution should be evaluated based on originalism, which he defined in a 60 Minutes interview this way: "[Originalism is] what did the words mean to the people who ratified the Bill of Rights and the Constitution."

In an interview with Legal Times, Northwestern University law professor John McGinnis noted that Scalia's emphasis on originalism had an impact on both the justices in the majority and the dissent in yesterday's decision, District of Columbia v. Heller.

Said McGinnis: "All justices adopted an originalist approach, suggesting that originalism commands consensus support, at least when the issue is whether a right that is in the Constitution can be restricted."

Supreme Court litigator Thomas Goldstein makes a similar point. “This case really is his legacy,” Goldstein told USA Today. “Not only is the issue fantastically important, but the way the case was decided—on the basis of history and the original understanding [of the Framers]— is his great contribution to the law. That he could keep five votes with so many issues in play shows how far he has moved the law."

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Posted by William McDevitt - 4 months, 3 weeks, 6 days, 7 hours, 6 minutes ago

Originalism may have its place in terms of providing “legislative history,“ but to think that we should interpret and apply the concepts of the Constitution today the same as in the 18th Century is absurd.
Posted by Daniel M - 4 months, 3 weeks, 6 days, 6 hours, 17 minutes ago

The whole point of the 2nd ammendent was to insure that our own government could never subjugate us. Freedom of speech is nothing if you don’t have the ability to protect it when threatened, by any needs neccessary. By the way, I don’t know where you live, but where I live if you call a cop he might show up in 15 minutes if you are lucky. I live in a city with a population of 500,000 and most times the police don’t arrive in time to even catch the criminal let alone stop them from commiting a crime. So for you wealthy, well attended citizens this may seem barbaric, but to many of the rest of us it’s about survival.
Posted by R. Ross - 4 months, 3 weeks, 6 days, 2 hours, 51 minutes ago

I don’t have a problem with the outcome of the case, i.e., an individual right to bear arms.

I do have a problem with Scalia’s insistence that it is an “originalist” interpretation.

If it is a “originalist” interpretation, it only means that MEN have a right to bear arms. There is no constitutional provision or amendment that guarantees women the same rights as men. After all, didn’t the writers of the 14th amendment only intend “persons” to be men (just as the founders did)?

Of course, knowing Scalia, that would be consistent with his intent—a sexist to the end.

As to the issue of needing guns to protect your 1st amendment rights—does that mean child pornographers should use guns to protect their “right” to publish child pornography? Or is there a federalist paper wherein the founders discuss how they would restrict the first amendment to “protected speech” which wouldn’t include obscenity?

If we went with originalist intent, then Plessy v. Ferguson would still be the law of the land and Brown v. Board of Education would never have become the law.

“Originalist” is just another word for “judicial activist” when the activism promotes a right wing cause.
Posted by R. Ross - 4 months, 3 weeks, 6 days, 2 hours, 47 minutes ago

Oh, and I forgot to mention, it will be interesting to see how Scalia feels about the “originalist” approach to the incorporation issue and whether or not the 2nd amendment’s individual right applies to state and local laws as well. Heller only addresses federal law.

Will Scalia once again be a hypocrite and abandon his “states rights” pronouncements because such state rights could intrude on his false doctrine of constitutional interpretation? He led the march of states right hypocrites in Gore v. Bush. Why stop there.
Posted by J - 4 months, 3 weeks, 4 days, 7 hours, 20 minutes ago

So much confusion from the posters above (save, Daniel).

If we allow the constitution to be interpreted according to the “flavor of the day” as poster #1 wants, the entire document will be eroded in short order. It’s important that we keep it a dead document. Not a “living, breathing” document like liberals want. The only reason anyone would want it to be “living” is so that they can twist it according to their own beliefs. This must be avoided at all costs. The fact that that U.S. has been so stable over the past 200+ years is amazing in so many ways, and we can only thank a stable, unchanging constitution for that. Hell, even modern countries like Germany and Italy have seen massive upheaval over the past 100 years. A lack of a secure constitution allowed that to happen, in part.

As for poster #3-4, I don’t even know where to begin. Gore brought the decision of the Florida state officials into court. It got appealed up to the Supreme Court. Scalia said: “let the state decide how to run things.“ And the decision was left with state officials. Seems pretty “state’s rights” to me. It was liberals—Gore & Co.—who wanted a judicial decision to overcome state authority.
Posted by DBN - 4 months, 3 weeks, 4 days, 1 hour, 10 minutes ago

While I prefer the “originalist” view, Scalia does pick and choose when he wants to apply it. He more often than not—in those cases where he wants to reach a particular end—relies on “precedent” rather than originalist interpretation (i.e. medical marijuana laws).

He is not an originalist when it comes to the 9th and 10th amendments.

Finally, the problem we originalists have it—where does the Supreme Court even get its authority? Not the Consitution, but in a sinlge judicial activist overreach in a court case called Marbury v. Madison.

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