In common with the other big rightward swerves by the Roberts Court, the 2008 ruling in District of Columbia v. Heller was an aggressive exercise in mendacity. By upending the well-established meaning of the Second Amendment, the Court made the country less safe and less free. It did this under the guise of a neutral and principled “originalism” that looks to the text as it was first understood back in 1791 by the amendment’s drafters and their contemporaries.
Heller’s 5–4 majority decision, written by Justice Antonin Scalia and joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito, was less in sync with the founding generation than with the top priority of a powerful interest group closely aligned with the Republican right. The National Rifle Association had been waging an intense 30-year campaign to secure an individual’s constitutional right to keep and bear arms by winning over members of the public, high-level politicians, and, ultimately, the Supreme Court. Mission, to an alarming degree, accomplished.
The decision declared, for the first time, that the Second Amendment protects an individual right to a gun, at least for self-defense in the home. It invalidated key parts of the District of Columbia’s unusually strict handgun ban, which prohibited the possession of nearly all handguns in the violence-prone city and required that firearms be stored unloaded and disassembled, or bound with a trigger lock.
In the process, the conservative justices engaged in an unsubtle brand of outcome-oriented judicial activism and “living constitutionalism” that they claim to abhor—an irony noted by a host of devoted Supreme Court watchers across the ideological spectrum. Richard Posner, the prominent Reagan-appointed federal appellate judge and prolific commentator on legal and economic issues, derided Scalia’s flawed approach as “faux originalism” and a “snow job.”
To grasp the audacity of what Scalia & Co. pulled off, turn to the Second Amendment’s text: “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.” To find in that wording an individual right to possess a firearm untethered to any militia purpose, the majority performed an epic feat of jurisprudential magic: It made the pesky initial clause about the necessity of a “well regulated Militia” disappear. Poof! Gone. Scalia treated the clause as merely “prefatory” and having no real operative effect—a view at odds with history, the fundamental rules of constitutional interpretation, and the settled legal consensus for many decades.
“The Second Amendment was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several states,” then-Justice John Paul Stevens correctly noted in his minority opinion, joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer. “Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms.”