The Future of the Second Amendment Under an Originalist Supreme Court Majority
by Anthony P. Picadio
IN SCALIA’S WAKE, PART THREE
VI. THE CASE ON THE DOCKET:
N.Y. STATE RIFLE AND PISTOL ASS’N v. CORLETT
The case which the Court agreed to hear on April 26, 2021, involves a challenge to New York’s handgun licensing law. The precise issue the Court agreed to resolve is:
[W]hether the State’s denial of petitioner’s application for concealed-carry licenses for self-defense violated the Second Amendment.[i]
New York State’s handgun licensing law, which has been in place since 1913, requires someone who applies for a permit to demonstrate “proper cause” in order to obtain an unrestricted license to carry. New York courts have interpreted “proper cause” as requiring the applicant to demonstrate “a special need for self-protection” different from a general belief that a handgun might be useful for self-defense.
By narrowing the case before it to a concealed-carry case the Court reduced the odds of a victory for gun rights advocates.[ii] Justice Scalia, in his Heller majority opinion pointed out that the majority of 19th Century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.[iii] In his dissent in Heller II, Kavanaugh read the Scalia statement as saying that laws against concealed carry of guns were “constitutionally permissible.”[iv]
Justice Kavanaugh, it would seem, would have some difficulty in now deciding that the Second Amendment protects a right to carry concealed weapons in public. And the other originalists on the Court might find it difficult to reject Scalia’s implicit approval of laws banning the concealed carry of firearms in public.
In order to circumvent these apparent obstacles, the Petitioner/Appellant will no doubt argue that a state must permit some form of carry for self-defense outside the home; and since New York severely restricts both open and concealed-carry its entire permit system violates the Second Amendment.
Exactly this issue was raised in Peruta v. County of San Diego, which upheld California’s restrictive concealed-carry law which was virtually identical to New York’s law. In rejecting the “entire regulatory scheme” argument, the Peruta court said:
While Plaintiffs base their argument on the entirety of California’s statutory scheme, they allege only that they have sought permits to carry concealed weapons and they seek relief only against the policies requiring good cause for such permits.
* * *
Because Plaintiffs challenge only policies governing concealed carry, we reach only the question whether the Second Amendment protects, in any degree, the ability to carry concealed firearms in public.[v]
The Court went on to hold that there is no Second Amendment right for members of the general public to carry concealed firearms in public. The Supreme Court denied a petition for certiorari. Thomas wrote a dissenting opinion (in which Justice Gorsuch joined) saying:
The en banc court’s decision to limit its review to whether the Second Amendment protects the right to concealed carry was untenable.[vi]
But, that is exactly what the Supreme Court has now done in the case pending before it. How will the Court analyze the case before it, and how will it decide it.
The first question the Court has to decide is whether a right protected by the Second Amendment has been infringed. Having narrowed the issue to concealed-carry only, for the Court’s originalists this question will turn on an analysis of English and American Colonial law as it existed in the late 18th century. This is well-traveled ground. The 9th Cir. en banc case majority opinion, in which seven judges joined, and dissenting opinions, in which four judges joined, reviewed this history. These opinions and the original panel opinion reach different conclusions analyzing the same history.
A more exhaustive historical review was undertaken in the majority en banc opinion of the Ninth Circuit in Young v. Hawaii, in March 2021, which upheld Hawaii’s stringent restrictions on open carry.[vii] After an exhaustive review of the history of early English and American laws regarding carrying arms openly in public, the Young v. Hawaii en banc court held that the Second Amendment does not guarantee an unfettered, general right to openly carry a gun in public for individual self-defense. (The case was an 11-4 decision with two dissenting opinions reaching the opposite conclusion based on the same historical record reviewed by the majority). And as Justice Scalia pointed out in his Heller opinion, most 19th Century courts that considered the issue upheld bans on concealed carry.[viii]
The pending case before the Court, dealing as it does with the denial of a permit for concealed carry, presents the issue in a way that is most favorable to gun safety advocates. Hence, this may not be the case that extends Heller’s holding.
VII. CANONS OF INTERPRETATION
Justice Scalia never stopped developing and refining his philosophy of the interpretation of legal texts. The most recent, and, therefore, perhaps the most authoritative, exposition of his thinking is set forth in detail in his 2012 book READING LAW. In it, he seems to have dropped the word “originalism” altogether and now includes both constitutional and statutory interpretation together under the rubric “textualism,” which he calls the “Fair Reading” method:
The interpretive approach here is that of the fair reading: determining the application of a governing text to the given facts on the bases of how a reasonable reader, fully competent in the language would have understood the text at the time it was issued.[ix] [Emphasis added]
In order to facilitate this Fair Reading textualism, the book goes on to list and discuss a number of canons or principles of interpretation, thirty-seven of which are specifically applicable to all types of legal instruments including constitutions.[x]
In his forward to READING LAW, Judge Frank H. Easterbrook (7th Cir.) observes that the older a text is, the more likely it is that its interpretation will produce disagreement:
Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption understood these words. The older the text, the more distant that interpretive community from our own. At some point the difference becomes so great that the meaning is no longer recoverable reliably.[xi]
This is a rather amazing concession to the critics of originalism. The oldest document that the Court is ever called upon to interpret is the Constitution itself. In fact, the one example Easterbrook gives where historical reconstruction of a legal text produced disagreement among the justices is Heller. The fact that Scalia approved Judge Easterbrook’s comments and included them in the forward of his book suggests that in the four years between Heller and his book, he may have allowed some uncertainty to creep into his thinking about originalism.
Scalia readily concedes that the application of the principles and canons of interpretation contained in READING LAW to his earlier opinions could require a different outcome:
Your judicial author knows that there are some, and fears that there may be many, opinions that he has joined or written over the past 30 years that contradict what is written here – whether because of the demands of stare decisis or because wisdom has come late.[xii]
Most of the opinions Scalia has become known for are dissenting and concurring opinions which were not determinative of the outcome. His opinion in Heller, however, is a majority opinion which does not rely on stare decisis. The foregoing quote, therefore, provides a tempting invitation to revisit Heller and analyze it using the principles and Canons of Interpretation contained in READING LAW to see if they might change the result.
A reevaluation of Heller is also appropriate in light of the recent addition of three acknowledged Scalia disciples to the Court. At least one of them, Justice Neil Gorsuch, is a strong proponent of the use of Canons of Interpretation in analyzing the text of legal documents. (“Maybe the most prominent interpretive tools used by textualists are the so-called “Canons of Construction”).[xiii] Justice Gorsuch is a strong proponent of Scalia’s method of interpretation and has shown a high degree of intellectual honesty in scrupulously following the method, even where the result conflicts with his personal values and the values of Republican conservatism.[xiv]
Finally, given the publication of READING LAW and the new makeup of the Supreme Court, it seems appropriate to revisit Heller and apply the Canons of Interpretation to the text of the Second Amendment to determine whether its holding would be considered correct by a Justice Scalia in 2021.[xv]
This is not just an academic exercise. Heller left many open issues, the resolution of which will require both a textual and historical inquiry. Therefore, even if Heller stands, any analysis which sheds light on its holding or the history of the Second Amendment’s adoption may prove worthwhile.
VIII. APPLYING THE CANONS
A. Canon 2: Supremacy of Text
The Second Canon of Interpretation listed in READING LAW states:
The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.
Scalia and his co-author make it clear that this Canon is applicable to statements of purpose such as the first clause of the Second Amendment (“A well-regulated militia being necessary for the security of a free Sate;”). On page 33 of their book, they state: “[T]he purpose is to be gathered only from the text itself.” [Emphasis added]. On page 56, in the discussion of Canon 2, they restate it: “[T]he purpose . . . must be derived from the text, not from extrinsic sources. . . .” [Emphasis added].
In Heller, Justice Scalia severed the connection between service in a militia and the right to bear arms by simply designating the first clause of the Amendment as “prefatory” and the second clause as “operative.” According to Scalia, the prefatory clause had no operative effect but was merely a statement of purpose which was consistent with, but which did not limit the operative clause. “The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.”[xvi]
Here, the text itself was entirely disregarded in favor of Scalia’s supposition that the Amendment had more purposes than the one specified in the language of the text. In other words, he is going outside of the text to find an unexpressed purpose. This is in complete violation of Canon 2 as set forth in “Reading Law,” Scalia’s most recent book. The application of Canon 2 to the Second Amendment seriously undercuts Heller’s holding.
If Canon 2 is applied to the Second Amendment, it is difficult to see how Heller’s holding stands. At a minimum, application of the Canon should be used to avoid expanding Heller’s holding.
B. Canon 26: Surplusage
The next Canon to be considered is number 26 in READING LAW, which reads as follows:
26. Surplusage Canon. If possible, every word and every provision is to be given effect . . . None should be ignored. None should needlessly be given an interpretation that causes it . . . to have no consequence.
This is a long-standing principle of constitutional interpretation. See, Marbury v. Madison, where Chief Justice John Marshall wrote, “It cannot be presumed that any clause in the Constitution is intended to be without effect.”[xvii]
Under this Canon, the authors quote from United States v. Baker: “These words cannot be meaningless, else they would not have been used.” [xviii] When Justice Scalia, in his Heller opinion, said that the prefatory clause stated “a” purpose for the remainder of the Amendment, but not “the only” purpose, he rendered the prefatory clause entirely meaningless. He pulled an unstated purpose out of his interpretation of history as being not only controlling, but supreme, (“the prefatory clause does not suggest that preserving the militia was the only reason Americans valued this ancient right; most undoubtedly thought it was even more important for self-defense and hunting.” [Emphasis added].[xix] Scalia’s “more important” purpose is unwritten and does not appear anywhere in the text of the Second Amendment. Of course, he then went on to hold that the operative clause of the Second Amendment protects the right of an individual to own a handgun for self-defense purposes, unconnected to any service in a militia. Did he not essentially delete the purpose clause? The holding would have been exactly the same if the drafters had completely deleted the first clause. To paraphrase the quote from United States v. Baker, the fact that the drafters chose to use the words of the first clause indicates that its words cannot be meaningless. But meaningless they became under the majority opinion in Heller. As Justice Gorsuch said in Bostock, “Only the written word is the law . . . .”[xx] Yet, Scalia not only failed to apply what was written, he in fact erased what was written and applied what was not written. If this Canon is applied to the Second Amendment, Heller’s holding could not stand.
C. Canon 34: Prefatory Materials
Under Canon 34, the first or prefatory clause of the Second Amendment is a permissible indicator of the meaning of a following operative clause. Giving it such an effect would lead one to interpret the Amendment as connecting the right to keep and bear arms to service in a militia. Justice Scalia, however, said that the prefatory clause did not state the only purpose of the operative clause, that there were others. Let us examine this conclusion.
Justice Scalia undertook an extensive examination of the history, both in England and its American colonies, of gun use and regulation and concluded that there existed a right to possess arms for self-defense and hunting, which pre-existed the adoption of the Second Amendment. He then said that at the time the Second Amendment was adopted it was understood to have incorporated this pre-existing right. In the course of his historical survey, he pointed out that what he called “the first Militia Act”[xxi] required the states to limit membership in their militias to “each and every free able-bodied white male citizen” of the ages 18 to 45 years. At first blush, this racial limitation which applied to all states in the union appears odd, since the constitution contains no racial limitation on membership in militias or in the definition of citizenship. Free blacks voted in a majority of states, owned property and were permitted (and required) to participate in state militias and were permitted to own guns.[xxii] In the northern states, free blacks and former slaves had served in state militias during the Revolutionary War.[xxiii] So, why, all of a sudden, one year after the ratification of the Second Amendment, did it become a matter of national importance to limit enrollment in every state militia to whites only?
While that question is being considered, let’s move on to the situation in the slave states, specifically Virginia, the most important state at the time the Constitution was ratified.[xxiv] In 1640, a Virginia law was passed which imposed a total firearms ban on all “negroes, slaves and free.” A similar ban was enacted in 1710 (“An Act for Preventing Negroe Insurrections”). Unlike the northern states, which viewed their militias primarily as a defense against external threats, in Virginia and the other slave states, their all-white militias were viewed as protection against the powder keg of slavery. Slave insurrection was a constant fear in the slave states, and control over the all-white militias was of overriding importance. Patrick Henry, perhaps the most electrifying public speaker who ever walked the earth, and the most powerful political force in Virginia at the time, stood during the debate over constitutional ratification in 1788 and put one of his objections to ratification into these words:
The 10th section of the 1st article . . . says, that ‘no state shall engage in war unless actually invaded. . .’ If the country be invaded a state may go to war but cannot suppress insurrection. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it without the interposition of Congress.[xxv] [Emphasis added]
The fear of a slave insurrection caused Virginia and other slave states to ban or greatly limit access to guns by free blacks for fear that they would pass them on to slaves. As Justice Scalia points out in Heller, Virginia rejected a proposal from Thomas Jefferson to include in its Declaration of Rights of 1776 a provision granting a limited right to arms to all “freemen.” (“No freeman shall ever be debarred the use of arms within his own lands or tenements.”) This proposal, which Scalia calls a “Second Amendment analogue,”[xxvi] was rejected in favor of a provision that mentioned arms only in connection with service in a militia:
13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state. . .”[xxvii]
The rejected Jefferson proposal is virtually identical to Scalia’s interpretation of the Second Amendment in Heller. Virginia’s rejection of the Jefferson proposal substantially undercuts Scalia’s conclusion that such a right (handgun in the home for self-defense) pre-existed the Second Amendment and was widely understood as having been incorporated into it. The most important state expressly rejected what Scalia said the Second Amendment was understood to mean at the time it was ratified.
James Madison served on the Committee which prepared Virginia’s Declaration of Rights, which rejected the Jefferson proposal.[xxviii] He was also a slave owner and an officer in his county’s militia. He knew the difference between granting a right to use arms to all freemen and limiting that right to members of an all-white militia. He took that knowledge with him when he became an important leader in Congress where he drafted the Second Amendment.
Madison considered many different proposals, including one from a group of Pennsylvania legislators promoting an amendment which would mirror the provision in Pennsylvania’s Constitution which says, “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.”[xxix]
He rejected this and other suggestions and chose instead language very similar to that of the Virginia provision connecting use of arms to service in a militia. Had he chosen instead the Pennsylvania model, the Second Amendment would have been in conflict with state laws, like Virginia’s, outlawing gun ownership and use by free blacks.[xxx]
This takes us back to the question: why did the Militia Act of 1792 prohibit free blacks in every state from enrolling in militias? The Act specified that every militia member was to arm himself with a musket or firelock, a bayonet and ammunition. If a state militia had been open to free blacks, the Militia Act would have required them to possess weapons.
With this background, Scalia’s idea that the Second Amendment was not understood as connecting gun ownership to service in a militia is not persuasive. His statement that another reason for the Second Amendment was to protect gun ownership/use for self-defense, is just wrong. To believe that, one would have to believe that James Madison, who sat on the Virginia committee which specifically rejected what Scalia called a Second Amendment analogue, and who was conscious of his state’s history of denying arms to free blacks, had a complete change of heart and drafted a Second Amendment which he knew would conflict with state laws such as Virginia’s.
The more likely conclusion is that Madison wrote the militia clause with the understanding that it would limit the interpretation of the operative clause and that was surely the understanding of those in the slave states which ratified the Second Amendment. Only by limiting the right to bear arms to members of all white militias could Madison ensure that guns would not be available to free blacks.[xxxi]
Justice Scalia’s interpretation of the Second Amendment in his Heller opinion, therefore, violates Canon 34 in Reading Law.
X. FINAL THOUGHTS
In many ways, Justice Scalia was an extraordinary individual: valedictorian and smartest kid in his high school class; valedictorian of his Georgetown University graduating class; an editor of the Harvard Law Review; a sparkling intellect; a strong and persuasive writer; and confirmed to the Supreme Court unanimously by the Senate.
Charming, witty, always with a twinkle in his eye, he welcomed into his close circle of friends his ideological adversaries. When it came to advocating for originalism and textualism, he was passionate, persistent, and unyielding. His theories are now the dominant theories of interpretation at the Supreme Court and throughout the lower federal courts. It is doubtful that any single individual since John Marshall has had such influence and made such a mark on our jurisprudence as he.
Yet, what has he wrought? Perhaps no area of the law reveals the shortcomings of his approach to constitutional interpretation as does Second Amendment jurisprudence. Touted by Scalia as a method to rid judicial decision-making of the influence of personal biases and preferences of judges, originalism has done just the opposite. It has given every judge called upon to interpret constitutional provision abundant opportunities to find support for a preconceived outcome in an intricate and remote historical record and in the nuances and inferences which a creative mind can find there. We now have numerous court of appeals cases with an originalist majority opinion reaching one conclusion and one or more originalist dissenting opinions reaching an opposite result based on the same historical record! Heller itself produced two distinctly opposing originalist interpretations of the Second Amendment based on the same historical record. One view received five votes (all conservative) and the other view received only four votes (all liberal). Originalism has definitely not given us a method of constitutional interpretation that is predictable and which removes the personal views and bias of judges from the decision-making process.
That is what originalism has not given us. What it has given us is heightened politicization. By attaching originalism in the public mind to desired conservative outcomes on abortion, affirmative action, gun rights and LGBTQ rights, Scalia politicized the judicial selection process to the point where only an avowed originalist has a chance to be nominated by a Republican President and confirmed by a Republican Senate for a seat on the Supreme Court. We now see ambitious conservative courts of appeals judges going out of their way to write dissenting or concurring opinions advertising their willingness to expand gun rights beyond Heller’s narrow holding. Certainly, politics in judicial selection did not start with Scalia; but his influence has made it worse.
Perhaps the most pernicious effect of originalism has been the politicization of history itself. We now have the situation where a one-vote majority Supreme Court opinion has decided our history. Does it no longer matter what history scholars say about the history of gun regulation in 18th Century England and early America? Does the concept of stare decisis foreclose consideration of further scholarly research? Just posing these questions shows how preposterous it is for a court to resolve, as a matter of law, disputed and contested historical issues. But the main point here is that these historical issues have become even more contested among historians since Heller and because of it. As shown in a recent compilation of scholarly historical research, history itself has become contested ground in the debate about the interpretation of the Second Amendment. The book, which is entitled A Right To Bear Arms?: The Contested Role of History in Contemporary Debates on the Second Amendment,[xxxii] shows that Scalia’s originalist Heller opinion has infected academia and created one big extended argument among scholars of differing philosophies and points of view. One can find among these articles support for whatever preconceived notions one might have on gun regulation. In reading through these articles, one is left with the feeling that historians themselves have become politicized by originalism. One can only hope that is not the case.
In the 13 years since Heller was decided, originalism has been extensively road-tested in numerous Second Amendment cases. The road-testing has demonstrated, rather clearly, that originalism does not yield predictable, neutral objective results as Justice Scalia contended it would. It does not remove the personal political and philosophical view of judges from judicial decision-making, which he claimed was its principal advantage. Finally, it has increased the level of politicization in our system of justice significantly beyond what it otherwise would have been. In short, originalism has failed its road test.
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[i] NY State Rifle, supra note 2. (Part 1, note ii)
[ii] The petition for certiorari asked the Court to resolve this broader issue: “Whether the Second Amendment allows the government to prohibit ordinary law abiding citizens from carrying handguns outside the home for self-defense.”
[iii] Heller, supra note 1, at 626. (Part 1, note i)
[iv] Heller, II, supra note 38 at 1272. (Part 2, note xvii)
[v] Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc).
[vi] Puruta v. California, 137 S. Ct. 1995 (2017).
[vii] 992 F.3d 765 (9th Cir. 2021).
[viii] Some new scholarly research, published after Heller has concluded that English history does not support an unqualified right to carry arms in public. See, e.g., Priyz Satia, Who had Guns in Eighteenth Century Britain, published in A RIGHT TO BEAR ARMS?: THE CONTESTED ROLE OF HISTORY IN CONTEMPORARY DEBATES ON THE SECOND AMENDMENT (Jennifer Tucker et al. eds., Smithsonian Scholarly Press, Wash., D.C., 2019).
[ix] Scalia and Garner, supra note 26, pg. 33 (Part 2, note v)
[x] Id. at 51
[xi] Id. at XXV
[xii] Id. at XXX
[xiii] Gorsuch, supra note 19, at 130-136. (Part 1, note xix)
[xiv] See, e.g. Bostock v. Clayton County, supra note 29.
[xv] Forward to Reading Law by Frank H. Easterbrook: “[T]his book shows the sorts of interpretive issues that might cause the Justice Scalia of 2011 to disagree with the Justice Scalia of 2012.” Supra note 26, at XXV.
[xvi] Heller, supra note 1, at 599. (Part 1, note i)
[xvii] 1 Cranch 137, 174 (1803).
[xviii] 297 U.S. 1, 65 (1936).
[xix] Heller, supra note 1, at 627. (Part 1, note i)
[xx] 140 S. Ct. at 1737.
[xxi] It was actually the second militia act passed on May 8, 1792, which limited the militia to white males. The first militia act passed on May 2,1792 did not.
[xxii]Robert J. Cottrol and Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Georgetown Law Journal, 309, 331-332 (1991).
[xxiii] Id.
[xxiv] At the time Virginia included what are now the states of West Virginia and Kentucky and a portion of southwestern Pennsylvania. Four of the first five U.S. presidents were from Virginia.
[xxv] Henry’s opening speech to the Convention, “Speech Before Ratifying Convention,” teachingamericanhistory.org/library/document’Patrick-Henry-Virginia-ratifying-convention-Va. He had other objections to ratification.
[xxvi] Heller, supra note 1, at 603. (Part 1, note i)
[xxvii] Anthony P. Picadio, The Right to Bear Arms; A Disfavored Right, 90 Pennsylvania Bar Ass’n Q 16, 19-23 (2019); available online at transpartisanreview.org, February 2019.
[xxviii] Ralph Ketcham, James Madison, A Biography, (University Press of Virginia: Charlottesville and London) (7th ed.), pg. 71. Also on the committee were Patrick Henry and George Mason, both of whom were slave owners.
[xxix] Pa. Const. (2018 Ed.) Art. I, § 21, Purdon’s Statutes, Const. Art. 1, § 21 (2011) .
[xxx] At some point restrictions on gun ownership in Virginia by free blacks were loosened to permit those who owned a home to keep one gun in their house for self-defense, but only if they could obtain a permit from the county sheriff, which was revocable. See, Picadio, supra note 79, at pg. 20 and note 15.
[xxxi] At the time the Second Amendment was ratified, approximately 20,000 free blacks lived in Virginia according to the 1790 census.
[xxxii] Supra note 60. (Part 3, vii)
ABOUT THE AUTHOR
Anthony P. Picadio, picadio@icloud.com, is a graduate of the University of Pittsburgh School of Law and an Allegheny County Member of the Pennsylvania Bar. He is a former Assistant Attorney General of Pennsylvania. He is a founder of the Pittsburgh firm Picadio Sneath Miller and Norton which, effective January 2018, was merged into the Pittsburgh firm Houston Harbaugh.
ABOUT THIS ARTICLE
In Scalia’s Wake: The Future of the Second Amendment Under an Originalist Supreme Court Majority first appeared the July 2021 edition of The Pennsylvania Bar Association Quarterly, volume XCII, no. 3, page 145 – 162.
