If you're looking for someone or something to blame for the mass shootings that have left our schools, streets and communities soaked in blood, don't just point your finger at the deranged punks who pull the triggers, or the NRA and their lackeys in the Republican Party. Save at least some of your ire for the Supreme Court.
In 2008, the Supreme Court sold its soul to the gun lobby. In a 5-4 majority opinion written by the late Justice Antonin Scalia in District of Columbia v. Heller, the court held for the first time that the Second Amendment protects an individual right to own firearms.
Prior to Heller, the great weight of academic scholarship as well as the court’s 1939 decision in United States v. Miller had construed the Second Amendment, in keeping with the actual debates of the Constitutional Convention, as protecting gun ownership only in connection with service in long-since antiquated state militias.
In 2010, the court again genuflected to the gun lobby. In another 5-4 opinion in McDonald v. Chicago, this time written by Justice Samuel Alito, the court extended Heller, holding that the individual right to keep and bear arms is “incorporated” by the Fourteenth Amendment’s Due Process Clause and is therefore applicable to the states and local governments.
The Second Amendment, as interpreted by Scalia and Alito, thus became the law of the land. The amendment has since been elevated in rightwing circles to the status of holy writ.
Both Heller and McDonald were based on the implausible and perverse judicial philosophy known as "originalism."
Originalism has led the court to enter a legal fantasy world in which the answers to contemporary questions about such matters as voting rights and gerrymandering, union organizing, the death penalty, abortion and gun control are to be found solely in the meaning that the Constitution had for the Founding Fathers in the late 18th Century. For originalists, the meaning of the Constitution is forever fixed, and can only be altered by constitutional amendments.
As a tool of judicial decision-making, originalism has been around a long time. One of its earliest expressions came in the Dred Scott case of 1857, perhaps the most odious decision ever issued by the Supreme Court, which held that Black Americans of African descent could never be U.S. Citizens. Plessy v. Ferguson, the 1896 decision that upheld the constitutionality of racial segregation even after the ratification of the 13th, 14th and 15th Amendments, is another originalist landmark.
But as an explicit judicial theory, originalism came into its own in the early 1980s. Initially, as popularized by Reagan-era Attorney General Ed Meese and the late failed-Supreme Court nominee Robert Bork, the doctrine asserted that the most important terms and provisions that appear in the Constitution and the Bill of Rights should be understood according to the “original intent” of the Founding Fathers, rather than as broad concepts that acquire depth, content and more complete meaning over time in response to changing social conditions.
When critics noted that the framers of the Constitution were a diverse group and that their actual intentions were varied and often ambiguous, proponents of the doctrine refined their approach. The current version—call it “new originalism”— focuses on the “original public meaning” of Constitutional provisions, which, they contend, can be ascertained from the recorded debates of the founding era and from such sources as late eighteenth-century dictionaries.
All originalists—whether of the old or new iteration—believe that their approach limits the subjectivity of judges and acts as a restraint on judicial activism.
In fact, originalism does nothing of the sort. As Fordham University history professor Saul Cornell, one of the foremost authorities on the history of the Second Amendment, noted in a scathing critique published in 2011 in Dissent magazine:
“[I]f one looks carefully at the murky methodology and dubious practices of new originalism, it is clear that its historical foundations are even shakier than that of old originalism. The new theory is little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution’s original meaning.”
The actual history of the Second Amendment is quite different from the fantasy versions advanced by Scalia and Alito. As the late Justice John Paul Stevens, joined by three of his colleagues, wrote for the minority in Heller:
“The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It 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. 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.”
Although Heller and McDonald were the products of extreme rightwing judicial activism, they were technically limited in scope, as they dealt with the right to keep guns in the home. Ever since those cases were decided, however, the gun lobby has worked to bring a new test case to the Supreme Court to extend the right to bear arms beyond the home.
Crossposted from Blum's Law