Scalia vs. Stevens: An Intellectual Battle for the Ages on the Second Amendment

Lately, there has been an abundance of commentary on the Second Amendment and its role in society due to school shootings and the “March for Our Lives.” Sadly, much of the commentary has been rooted in emotion and there has been too great a willingness to dismiss  a clear right defined under the Constitution, “the right to bear arms.”

This post is dedicated to informing and offering a brief, but respectful opinion on the matter. Society would go a long way in having an educated perspective by reading the brilliance of the late great Supreme Court Justice Antonin Scalia and his ideological inverse, but equally gifted intellectual rival, retired Supreme Court Justice John Paul Stevens.

The case at point, District of Columbia v. Heller, illustrated a logical and historical debate on the Second Amendment that is too often lost in the agenda driven media of today. The Supreme Court held that banning handguns and prohibiting firearms from being operative in the home for self-defense purposes violated the Second Amendment.

We will break this down by reviewing excerpts of Justice Scalia’s majority opinion and distinguishing from excerpts in Justice Stevens’ dissenting opinion.

The Second Amendment’s text provides, “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.”

Justice Scalia provides a methodical approach to his majority opinion and goes through each of the major clauses in the amendment to support his argument preserving the originalist definition of the Second Amendment.

He dissected the clause, “Keep and bear Arms” and cited the following historical premises and strong support for the individual to extend ownership over guns even without a military purpose:

“From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.”

Scalia’s argument stemmed from the fact that this clause historically has not had a limited understanding defined to just carrying weapons in militia, rather it has also been interpreted to mean carrying weapons for the purposes of individual self-defense. Justice Scalia then disputed the claim of Justice Stevens that the Second Amendment must be strictly regulated to a military purpose.

Justice Scalia highlighted the meaning of the operative clause of the Second Amendment. He discussed how the right to bear arms was a pre-existing right that was simply codified within the text of the Second Amendment.  He traced this historical background to England and the time of the Stuarts when the people of that nation were in fear of governmental abuses and also sought self-defense within the confines of their own home. He stated “but the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution.”   This understanding carried through to when the colonists settled in American and began developing state governments and eventually the nation itself.

Justice Scalia, however, was quick to point out that the individual 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.”

Justice Scalia is emphasizing that the right to bear arms must be respected, however, it can come with limitations including specified prohibitions that have been already reflected in laws throughout the nation. Prohibitions with regards to the mentally ill and schools can be viewed in the context of the present debate the nation finds itself in.

While Justice Scalia mentions that the carrying of firearms in schools can be forbidden depending on the locality, he does not cast doubt in the existence of the right to bear arms. Some have made calls to repeal the Second Amendment entirely  but this would be a grave mistake. We must be able to distinguish the role of an enumerated right in our Constitution that has stood the test of time and reasonable laws regulating that right.

Overall, the majority opinion in the case found that,

“The Second Amendment protects an individual right to possess a firearm unconnected with service in a  militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.  The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.”

In concluding, while the right to bear arms should not be taken as a blank check without some form of oversight for the sake of safe public policy, it is a violation of the Constitution to deny that the right exists. It also shows a limited understanding of law and policy in general when there is commentary stating that all the problems will be solved with banning the Second Amendment or so strongly restricting it in the public so as to effectively eliminate the right.

Stevens Dissent

Justice John Paul Stevens disagreed with this assessment but provided an interesting method in deconstructing it. He is willing to use originalism to an extent, focusing on the text and historical background to support his basis. This is the common means of interpretation in which Justice Scalia prepared his arguments when interpreting the Constitution and this case was a major example of it. Justice Stevens could be defined as a progressive jurist that typically relied on the living constitutionalist perspective to interpret the Constitution. This perspective is not bound in history and historical meaning, rather it takes an evolving view of the Constitution. The fact that Justice Stevens dared to enter the realm of Justice Scalia in this major case, amplified the debate. While I disagree with Justice Stevens’ outcome I respect the logical method he relied upon to reach his conclusion.

Justice Steven’s main argument is that the Second Amendment has a central focus of an armed citizenry for military purposes. He believes this is clearly defined in the amendment.

When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia

He supports this premises by citing examples of legislative history and proposals sent by the framers from the various states for the purpose of crafting the Second Amendment. Some of these proposals emphasized the importance of being military bound with the right to bear arms. Other proposals wholly defined the right as personal without being bound for a military purpose, however, these were rejected. As a result, he argues that the final wording provides a military purpose with the focus on militia, thus this should be the central means of interpretation.

The history of the adoption of the Amendment thus describes an overriding concern about the potential threat to state sovereignty that a federal standing army would pose, and a desire to protect the States’ militias as the means by which to guard against that danger. But state militias could not effectively check the prospect of a federal standing army so long as Congress retained the power to disarm them, and so a guarantee against such disarmament was needed

I do not find, however that legislative history serves as ample support for his premise. Legislative history should not be revered to the same degree as actual law. Often, the debates, discussions held and early proposals leading up to the adoption of a law were just that, debates discussions, and proposals. Some ideas may have made it to the final outcome which is the law, while others did not. We cannot hold such a fickle understanding of an area of law to such high esteem.

Even if we do concede the point emphasized by Stevens in regards to the federal standing threat to state sovereignty that does have merits to the Second Amendment discussion, it still does not change the fact that the right to bear arms exists. The thought process in developing the law may have wanted to address the fear of Congress disarmament of its citizens, but for the citizens to actually have an opportunity to resist they required their own right to arms. This is why any discussions about eliminating the Second Amendment should be a non-starter. The right exists and is clear in the text. If people want change they need to address laws with the understanding that the right exists and cannot be denied. They can, however, enact reasonable gun policy while operating within the context of acceptance of this right and not in opposition to it. This is a distinction that must be made and has too often been drowned out in recent discourse.