Dear Dahlia and Cliff and Jack:
There is widespread agreement among commentators this morning that the Supreme Court's Heller opinion adopts a legal standard sensibly allowing "reasonable regulation" of guns. But that may not be the Second Amendment Justice Scalia has in the back of his mind. As Scalia seems to envision the amendment, certain government restraints on guns are by historical practice outside the definitional boundaries of the right—but within the amendment, the rights it creates are absolute and cannot be overcome by any showing of governmental necessity.
Fortunately for those who would seek to sustain sensible regulations, Scalia's majority opinion itself resolves very little. Understanding his broader jurisprudential conception of the amendment, however, is important. First, it suggests how the defense of other regulations should be shaped in the future to fit Scalia's particular vision. Additionally, it may be important in some cases to note that Scalia's particular approach to the amendment was not part of the holding in Heller, and should not be followed by other justices in the majority.
Justice Scalia's opinion includes a list of regulations and states upon which "nothing in our opinion should be taken to cast doubt." Most of these are cordoned off because they are "longstanding prohibitions." What is striking, however, is the rationale for the continuing validity of his relatively short list: Each and every one is justified as a historically grounded exception to the right created by the Second Amendment. Because of history, each is excluded from the definition of the "right." But within its scope the right itself may, in Justice Scalia's view, be absolute.
Heller presented an extraordinary opportunity for the veteran justice to confront a blank canvas upon which he could splash his own highly individual approach to constitutional interpretation. Antonin Scalia's Second Amendment closely resembles Hugo Black's First Amendment. Each justice distrusted the exercise of discretionary judgment by judges. Free-speech champion Hugo Black rejected any test that allowed judges to decide whether a sufficiently compelling government interest could permit the regulation of some speech. The First Amendment was absolute. No law meant no law.
Of course, if you believe a right is absolutelyprotected, you must confine the definition of the right. Justice Black had to find that flag burning was not part of "the freedom of speech" because if it were a part of that freedom, then protesters would have the right not just to burn the flag but to burn down the White House as well. Black rejected the standard approach, which was to acknowledge that although setting fire to a flag and setting fire to the White House could both be communicative, the government had a sufficiently strong and legitimate interest in suppressing White House burning but not flag burning.
That may be how Justice Scalia conceives of the Second Amendment. Indeed, he references the First Amendment in a critical passage:
The First Amendment contains the freedom-of-speech guarantee that the people ratified which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong headed views. The Second Amendment is no different.
Similarly, in Scalia's mind, the way to determine whether a gun regulation is permissible is to ask whether such a regulation was part of the historical background of the amendment and thus excluded from "the right" that was being adopted. Note that he precedes his discussion of certain permissible regulations by stating, "Although we do not undertake an exhaustive historical analysis today," we should not be taken to cast doubt on the following restrictions.
What is striking about his discussion of the presumably valid restrictions is both what is said and what is not said. In every instance, historical practice is noted. In not a single instance is the public necessity for a gun restriction noted. As to history, he notes that there will be time to expound upon "the historical justifications" for the presumed valid regulations "if and when those exceptions come before us." Justifications based upon necessity, on the other hand, are not part of Justice Scalia's calculus: "[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table." There is no need for establishing a "level of scrutiny" if the amendment, once defined, is absolute.
This approach is vintage Scalia. Find some historical practice, use it to define and limit the scope of the right, and then apply the remaining right absolutely. But whatever one can surmise Justice Scalia had in mind, it is not dispositive. What is in the holding of the opinion leaves open for future determination the critical questions of permissible regulation. The key footnote (added later, perhaps, by request of one of the justices in the majority?) expressly states that Scalia's list of "presumptively lawful regulatory measures … does not purport to be exhaustive."
But if for no reason other than careful future advocacy, it is important to understand Justice Scalia's own thinking, even if it did not become part of the holding of the opinion. "Reasonableness" arguments have no role in his conception of the amendment. That does not doom the case for defending sensible regulations. It does suggest that (1) any appeal to Justice Scalia needs to be crafted in keeping with his historical approach to the amendment and (2) for restraints whose justification is rooted more in current public necessity and less in historical practice, a majority may have to be assembled that does not necessarily include the author of the Heller opinion.
I should note that although I argued Heller in the Supreme Court for the District, these views are my own.