The Future of the Second Amendment Under an Originalist Supreme Court Majority
by Anthony P. Picadio
IN SCALIA’S WAKE, PART ONE
The landmark Supreme Court Heller case (2008) held (5-4), for the first time, that the Second Amendment protected an individual right to possess a firearm unconnected to service in a militia. Justice Scalia wrote the majority opinion and considered it his legacy originalist opinion. The holding was narrow – protecting only the right to possess a handgun in the home for self-defense. In the 13 years since Heller was decided, its narrow holding has never been extended by the Supreme Court. With three new avowed originalists on the Court (Gorsuch, Kavanaugh and Coney-Barrett) and with Justice Alito signaling that he will join them in an attempt to shape Scalia’s theory of interpretation, many observers expect the Court to soon expand the scope of Second Amendment protection beyond a handgun in the home. A new Second Amendment case was recently accepted by the Court and will be argued this coming October Term.
This article shows that even among originalists there is disagreement concerning the proper interpretation of legal texts, and, therefore, the result of any new Second Amendment case is not necessarily predictable. However, the three newest justices significantly increase the odds that eventually Second Amendment rights will be extended beyond the narrow holding of Heller. The article goes on to show that the application of three canons of interpretation from a 2012 book co-authored by Justice Scalia leads to the conclusion that Heller was wrongly decided.
ABOUT THE AUTHOR
Anthony P. Picadio, firstname.lastname@example.org, 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.
TABLE OF CONTENTS
II. THE HELLER CASE
III. SCALIA’S LEGACY
A. Original Intent vs. Original Meaning
B. Textualism v. Originalism
C. “I Am Not a Strict Constructionist”
V. THE SECOND AMENDMENT POSITIONS OF THE THREE NEWEST JUSTICES
VI. THE CASE ON THE DOCKET: N.Y. STATE RIFLE AND PISTOL ASS’N. v. CORLETT
VII. CANONS OF INTERPRETATION
VIII. APPLYING THE CANONS
A. Canon 2: Supremacy of Text
B. Canon 26: Surplusage
C. Canon 34: Prefatory Materials
IX. FINAL THOUGHTS
Thirteen years after its landmark Heller[i] decision and after over 150 denials of petitions for certiorari in Second Amendment cases, the Supreme Court, on April 26, 2021, finally accepted an appeal of a Second Amendment case. The case is New York State Rifle & Pistol Association v. Corlett,[ii] which involves a Second Amendment challenge to New York’s concealed carry law. The law requires a demonstration of a special need in order to obtain a permit to carry a concealed weapon in public. Specifically, the challenged law requires a showing of “proper cause” to carry a concealed firearm. The case will be argued during the Court’s coming October Term.
A lot has happened during the thirteen years since Heller was decided. Most significantly, the makeup of the Court has changed dramatically. Anthony Kennedy, Ruth Bader Ginsburg and Justice Scalia, the author of the majority opinion in Heller, are gone, and in their places are three new justices, Gorsuch, Kavanaugh and Coney-Barrett, all avowed originalists. It is also significant that during the thirteen years since Heller, a substantial body of Second Amendment law has been developed in the lower federal courts, much of it supporting restrictions on the possession and use of guns, and much of it using originalist analysis to do so. Finally, there have been substantial additions to the literature, including a book co-authored by Justice Scalia, which raise legitimate questions about whether Heller was correctly decided.
These developments, and their ramifications, will be discussed in the following sections. But the starting point is Heller and the method of interpretation utilized by Justice Scalia in his majority opinion.
II. THE HELLER CASE
In 2008, the United States Supreme Court held for the first time in the 217 years since the Second Amendment was ratified, that the Amendment created an individual right to keep and bear arms unconnected to service in a militia.[iii] The case was District of Columbia v. Heller,[iv] and Justice Scalia wrote the Opinion for the five-Justice majority. The specific holding of Heller was a narrow one, which Justice Alito, in a subsequent case, stated this way: “In Heller we held that the Second Amendment protects the right to possess a handgun in the house for the purpose of self-defense.”[v]
In a 25,000-word opinion, Justice Scalia surveyed several hundred years of English and American law and concluded that the Second Amendment was understood by the founding generation to have incorporated a pre-existing right to possess a firearm in the home for self- defense.
Scalia considered Heller to be his “legacy opinion.” He said, “it is the best example of the technique of constitutional interpretation, which I favor, that is to say it is a good example of originalism.”[vi] It has been called “originalism’s high-water mark.”[vii]
Justice Scalia made it a point to limit the scope of Heller’s holding:
Like most rights, the right secured by the Second Amendment 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, the majority of the 19th century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.[viii]
He went on to say that nothing in the opinion should cast doubt “on longstanding prohibitions on the possessions of firearms by felons and the mentally ill, which in a footnote he said were presumptively valid. Scalia went on to say that “dangerous and unusual weapons,” such as “M-16 rifles and the like,” may be banned. Only those weapons “in common use” for lawful purposes are protected under his interpretation of the Second Amendment.[ix]
III. SCALIA’S LEGACY
Justice Scalia served on the Supreme Court from 1986 until he died in 2016. During this 30-year tenure, he served with 16 other justices. For the entire duration of his tenure, he fought for the recognition of his favored method of constitutional interpretation, originalism. In the halls, conference rooms, chambers, and courtroom of the Court, it proved to be a lonely fight.
In an interview he gave in 2013, he was asked whether he felt he was winning or losing the battle for constitutional interpretation. He answered:
I don’t know how much progress we’ve made on originalism. That’s to be seen. I do think originalism is more respectable than it was. But there’s still only two justices up here who are thorough going originalists.[x]
Of course, the second originalist was Justice Thomas, who seems to have come to his version of originalism on his own. When asked how he would compare his judicial philosophy to that of Justice Thomas, Scalia reportedly answered, “I am an originalist, but I am not a nut.”[xi] So, even in the small group of two originalists, Scalia felt somewhat alone. At the time of the interview, Scalia obviously did not consider the two relatively new conservative justices, Alito and Chief Justice Roberts, to be full-fledged originalists.
For his part, Justice Alito famously made a joke out of Scalia’s originalism when he said during oral argument in a case involving a prohibition of violent content in video games, “Well, I think what Justice Scalia wants to know is what James Madison thought about video games? Did he enjoy them?” The courtroom exploded in laughter.[xii] Not only did originalism fail to gain adherents on the Court, but, at least in this example, it became the butt of a joke.
Although Justice Scalia had little success in having originalism accepted among his colleagues on the Court, it was a much different matter in the country at large. Throughout his professional life, Scalia was relentless and passionate in presenting to the public his views on constitutional and statutory interpretation. Through literally hundreds of speeches at law schools, Federalist Society functions, and before a wide range of conservative religious, business and social groups, through his writings and through the publications of his judicial opinions, he became a rock star among conservative Republicans and religious groups. One author put it this way:
The barbed and often amusing nature of many of his public statements and the sheer nastiness that marked many of his judicial opinions made him a compelling public figure, while the political and social appeal of his personal views and judicial opinions made him the beloved judicial spokesman for the Republican Coalition.
As a result, Scalia became a true media celebrity a new kind of popularly known and nationally prominent justice.
* * *
He possessed a magnetic personality, theatrical instincts, a charming manner and quick wit, the poise of an experienced debater, self-assurance . . . and moral righteousness.[xiii]
He became an icon to conservative Republicans, the embodiment of the values that many of them passionately believed should be restored in America. He did not believe that the constitution created a right to an abortion;[xiv] he was opposed to what he called the “homosexual agenda” on the grounds that the founding generations wrote a constitution that did not protect or grant gay and lesbian rights;[xv] he opposed affirmative action on the grounds that the equal protection clause of the 14th Amendment prohibited discrimination on the basis of race – white or black – and did not permit discrimination against whites in order to remedy the effects of past discrimination against blacks.[xvi]
By the time Donald Trump was elected President in 2016, Scalia had had such an influence on Republicans that only a follower of his could be nominated by a Republican President and confirmed by a Republican senate. Any serious candidate for a Supreme Court appointment had to pay homage to Scalia and originalism to even get on a short list. It was as if Scalia himself were making the nominations and voting for confirmation. Neil Gorsuch, Brett Kavanaugh[xvii] and Amy Coney-Barrett each stated during their confirmation hearings and elsewhere that they were originalists. Kavanaugh had previously given a speech at Notre Dame Law School in which he said, “Justice Scalia was and remains a judicial hero and role model.” Coney-Barrett, a former Scalia law clerk, said during her confirmation hearing, that he formed her views and that she would follow Scalia’s originalism in constitutional interpretation.[xviii] Gorsuch’s embrace of originalism and textualism is well known and explained in his recent book.[xix] So, by taking his originalist cause to a greater audience than his fellow justices, Scalia succeeded in making originalism the dominant mode of constitutional interpretation among Supreme Court justices.
Counting Justice Thomas, there are now four avowed originalists. And most recently, Justice Alito has sent a strong signal that he too will henceforth join the originalists and make an effort to lead the others in shaping and applying Scalia’s thinking.[xx]
In a recent speech to the Federalist Society Alito said:
I will say that we have seen the emergence of what I believe are erroneous elaborations of Justice Scalia’s theories and I look forward to friendly and fruitful debate about where his thinking leads.
He acknowledged that Scalia’s methods of interpretation will now be dominant on the Court:
A lot of the debate about constitutional and statutory interpretation now takes place within the framework of, or at least using, the language of originalism and textualism.[xxi]
Alito has not heretofore been thought to be a convinced originalist, but rather one who considered a number of factors in his analysis. However, it now appears that he will try to be a force in shaping originalism and textualism in future cases. Now that we appear to have a majority of originalists on the Court, it is important to understand just what that means.
Continued in Part Two.
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[i] District of Columbia v. Heller, 554 U.S. 570 (2008).
[ii] Supreme Court Docket 20-843.
[iii] The Second Amendment 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.” U.S. CONST. amend. 2.
[iv] Heller, supra note 1. (Part 1, note i)
[v] McDonald v. City of Chicago, 561 U.S. 742, 791 (2010).
[vi] Edward A. Purcell, Jr., Antonin Scalia and American Constitutionalism, Oxford University Press (NY, 2020), pg. 163.
[viii] Heller, supra note 1, at 626. (Part 1, note i)
[ix] Id. at 627.
[x] Jennifer Senior, “In Conversation: Antonin Scalia.” New York Magazine, October 4,2013.
[xi] Jeffery Toobin, The Nine: Inside the Secret World of the Supreme Court, Anchor Books N.Y. (September 2008 ed.) p. 120. This comment was no doubt meant in jest, but it does reflect true differences between these two originalists. For example, Thomas is thought to have less respect for precedent than Scalia.
[xii] Dahlia Lithwick, Simulated Originalism, Slate, Nov. 2, 2010, slate.com.
[xiii] Purcell, supra note 6, pp. 270-71. (Part 1, note vi)
[xiv] Planned Parenthood v. Casey, 505 U.S. 833, 979 (1992), (Scalia, J., dissenting in part).
[xv] Lawrence v. Texas, 539 U.S. 558, 586 (2003), (Scalia, J., dissenting) (“the majority largely signed on to the homosexual agenda.”)
[xvi] City of Richmond v. J.A. Croser Co., 488 U.S. 469 (1989), (Scalia, J. dissenting).
[xvii] When asked whether he was an originalist, Kavanaugh said, “that’s correct.” Transcript of Kavanaugh confirmation hearing, day 2, part 2.
[xviii] Transcript of Coney-Barrett confirmation hearing, day 2, part 1.
[xix] Neil Gorsuch, A Republic If You Can Keep It, Crown Forum, N.Y. (2019).
[xx] John O. McGinnis, Alito’s Way, Law & Liberty, December 3, 2020.