I just finished my first read of the majority opinion in District of Columbia v. Heller. Antonin Scalia’s majority opinion is typical Scalia (when he’s good), reading the Constitution in its time, and foregoing a lot of the “Living Document” tomfoolery that the Court’s leftist justices tend to adopt.
In short, Scalia and the Court’s majority confirm that the individual right to bear arms makes up the militia, not the other way around. He portrays a rather exhaustive history, citing scholarly works discussing the original English source of the Second Amendment, to the purpose of the Second Amendment of ensuring self-defense and maintaining a milita, and including references to the many state constitutions that adopted arms bearing right, to include state supreme court jurisprudence in the 19th century discussing the individual right to bear arms vis a vis state milititas (the existence of state militias vis a vis federal militias was largely a Tenth Amendment question). Apropos, the opinion included multiple mentions of Andrews v. State, an 1871 Tennesseee Supreme Court case that is the seminal Tennessee case on the right to bear arms.
Scalia also well-damaged the dissents of Justices Stevens and Breyer, who seemed much more selective in their summary of the history of the Second Amendment. Breyer’s historical focus was on municipal regulations with minor penalties (unlike the criminal penalty inherent in the District of Columbia law), and puzzlingly, proposed the adoption of an “interest balancing inquiry”, which I suppose is some long-lost cousin of the rational basis test, to determine whether firearm regulations were proper. In it, Breyer, proposes that courts “ask(s) whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important government interests.” Breyer Dissent, p. 10. In short, Breyer’s proposed test, fabricated completely out of whole cloth, would make the Second Amendment a junior member of the Bill of Rights.
Instead, Scalia places the Second Amendment on par with the likes of the First Amendment. Though a victory for the individual rights interpretation of the Second Amendment, this opinion is not a sweeping removal of firearm regulation, and should not affect state regulation of the right to bear arms.
According to Heller, the federal government can still license firearms, such as hand guns, but cannot prohibit their possession in the home. Scalia interprets the Second Amendment in view largely of the time of its adoption, to include only firearms that were reasonably expected to be carried by individuals if called for militia duty. In this way, he avoids invalidating the federal government’s machine gun prohibition, and prohibitions generally on other weapons, such as sawed-off shotguns. Under his interpretation, hand guns qualify as protected weapons under the original meaning of the Second Amendment.
He also discusses the last SCOTUS case on the Second Amendment, United States v. Miller, on which Stevens largely hangs his judicial hat. The history of Miller is interesting, as Miller himself did not appear before the court. The Miller case involved the criminal prosecution of two individuals carrying sawed-off shotguns across state lines. Despite the solicitor general’s lone argument before the Court that the Second Amendment defined only a collective right, the Miller court did not explicitly adopt that holding. Scalia noted the focus of the Miller court was on the type of weapon – a sawed-off shotgun – which did not fit within the historical definition of weapons fit for self-defense or militia use. The individuality question was not the material aspect of the Miller court’s opinion.
Scalia concluded the majority opinion in Heller thusly
Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.