Surprise, surprise! A self-identified liberal like myself actually think that Scalia got it right in yesterday’s Heller decision, even though I find some of his reasoning unpersuasive.
But the biggest reason why I agree with the substance of the decision is this: every other right enumerated in the Bill of Rights refer to individual rights, not collective rights. So, from a consistency point of view, it would make little sense to interpret the Second Amendment as protecting a collective right when all the other enumerated rights are individual rights.
Having said that, here are the parts of Scalia’s decision that I found unpersuasive.
First, his decision to focus first on the operative clause rather than the prefactory clause is puzzling, because the whole question is whether the amendment protects an individual or group right. Thus, it would make much more sense to talk about what function the prefactory clause serve for the rest of the amendment. Instead, Scalia argues, in his section on the operative clause, that the amendment protects an individual right. So when he talks about the prefactory clause, he has already made up his mind. This seems to me to be begging the question.
As to whether the prefactory clause does or does not limit the right to gun ownership, the answer is not so clear cut. To me, the language of the 2nd amendment is not as well-constructed as the rest of the bill of rights, so it is plausible for reasonable people to disagree. I happen to think that the amendment does confer an individual right, not because I subscribe to Scalia’s brand of originalism, but because, like I said earlier, it seems out of place to place a group-right protection amendment in a document that protects individual rights.
An aside: I find reading Scalia’s opinions hilarious at times precisely because of originalist interpretation. For example, in the Heller opinion alone, the sources that he cites range of a House of Lords debate in 1780 to a London gentlemens magazine in the same period. To me, this seems absurd, but it makes for a fun read. At least as fun as reading a Supreme Court opinion can be.
Second, I fail to see any reason for any political upheaval, because the opinion itself really doesn’t say anything substantive about how to regulate this right. Sure, the Court pronounced that possession is a right, but it does not say that this is an unlimited right, and Scalia even says that the ruling does not cast any shadow of doubt on regulations such as sale of arms, or concealment laws, and so forth.
The ruling itself is largely symbolic in other words, and I fail to see how this benefits any political factions SUBSTANTIVELY. Sure, the anti-gun faction can claim this as a moral victory, but then again, I never thought that a total and complete ban on firearm posession is legitimate. Instead, what will actually happen is a flood of litigation, and this a good thing, because laws are pretty much useless without interpretation. And there is a lot of catching up to do, since the 2nd amendment has never received any real analysis in the court of law before the Heller decision. And since we are dealing with public safety, I predict that most courts will not interfere too much reasonable state regulation. However, Scalia does say in one of his footnotes that rejects rational basis as a standard of scrutiny, but I have trouble seeing courts using strict scrutiny on this. In other words, the field is now wide open, which might be a bad thing for people who want complete bans, but I think this is a better approach because it is more balanced.
But on the other hand, the Heller decision has now made guns a salient political issue in November, which is bad, because the politics of guns is rarely civil or reasonable. Most of the time, it’s dominated by fear-mongering. My prediction is that the issue of judges will play a greater role in the election, with Heller joining Roe as a political litmus test. So pay attention to what the candidates say about what kind of judges they will appoint.
Of course, I already wrote about McCain’s views, so it comes as no surprise that he heartily applauded the decision and blasted Obama on his “guns and religion” bit during the primary.