Heller Is Reason Enough for the Republican Senate to Take Its Time Replacing Scalia

By Charles C. W. Cooke

Tuesday, February 16, 2016

Those who are wondering why exactly they should be alarmed by the prospect of President Obama’s replacing Antonin Scalia with yet another advocate of the “living Constitution” should look no further than the possibility that a post-Scalia Court will overturn D.C. vs. Heller.

I do not issue that warning in my capacity as a champion of the right to keep and bear arms (although I will concede that I am that), but as somebody who believes that history matters a great deal and who does not want to see it rewritten in the name of transient expedience. It is often presumed that my support for Heller is the natural product of my having come around on the question of gun rights per se. This, I’m afraid, is incorrect. Certainly, I have changed my mind as to the wisdom of an armed populace (I used to be vehemently “anti-gun”), but that conversion has had no meaningful bearing on the effects of the Constitution, and nor should it. I also happen to be opposed the death penalty, but this has no more led me to pretend that the Eighth Amendment prohibits capital punishment than my opposition to abortion has pushed me to pretend that the commerce clause would allow a federal ban. The text is the text, whatever I might think of the outcomes it yields, and it must be treated as sacrosanct at all times. The Constitution protects the right to keep and bear arms not because I like the right to keep and bear arms, but because the evidence points overwhelmingly in that direction.

There are many constitutional questions that yield legitimate and necessary debate. But “What does the Second Amendment mean?” most emphatically does not. In fact, the answer to that question is so historically straightforward that I have come reluctantly to the conclusion that the people who argue otherwise — yes, including the four dissenters in Heller — are doing little more than playing cynical games in pursuit of a political end. There is a good reason that every prominent legal figure in the republic’s first century characterized the Second Amendment as protecting a right of the people that was not contingent upon service in the militia (among them St. George Tucker, William Rawle, and Joseph Story), and there is a good reason that James Madison either personally thanked those figures for their explanations (as with Tench Coxe) or appointed them to the judiciary (as with Story and Tucker). Those reasons? That this isn’t even close. Bluntly put, there is no credible evidence from the Founding era to suggest that the Second Amendment protects anything other than an individual right. The language of the amendment is wholly consistent with its being applied to the individual (as elsewhere in the Constitution, the right is deemed to be “of the people”); the English law that preceded it supports the very same conclusion; and the “explanatory strictures” proffered during the ratification debate do nothing less than to clinch the deal. Writing in the late nineteenth century, Thomas Cooley predicted presciently that the amendment’s prefatory clause (unusual now, but less so then) might cause subsequent generations to misunderstand what was at that time universally understood. Regrettably, in some quarters at least, his fears have been realized.

We can, of course, have a legitimate debate as to what limits may be imposed upon the amendment’s scope. Indeed, writing for the majority in Heller, Antonin Scalia did just that, conceding readily that the protection was not infinite. (This concession should not be taken to mean that the right is not robust, merely that Hugo Black-esque, strict-constructionist absolutism is misguided). What we cannot do, however, is pretend that the amendment means what it plainly does not. In order to make the case that the Heller dissenters made, one not only has to ignore the relevant history, commentary, and linguistic norms, but to contend in true “Mad Hatter” fashion that the Founders’ intent in drafting the Second Amendment was to protect the right of individuals to join an organization over which the federal government enjoys plenary power. That is preposterous.

The Second Amendment’s more honest critics (Dershowitz, Levinson, Tribe, etc.) are admirably unwilling to lower themselves to making such a contention, and will thus acknowledge its meaning even as they call for its repeal or its limitation. Alas, at least four members of the Supreme Court — namely: Ginsburg, Breyer, Stevens, and Souter — have shown no such honor, and it is reasonable to assume that if Obama gets his way they will be joined by a fifth. At that point we would be on the verge of a five-judge majority reading one part of the Bill of Rights out of existence completely.

This, suffice it to say, fills me with horror — not because I think Americans will suddenly give up their guns (the restoration of the right to keep and bear arms was won politically, not legally), but because it says terrible, terrible things about the future of the law, and casts serious doubt upon the rightful role of judges in this republic. Republicans pushing back against the next Obama appointee should understand that they are not just defending the Constitution as written; they’re defending the integrity of history too.