The Nine [195]
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.” The sentence is ungrammatical and difficult to understand. The two clauses appear to have little to do with one another; the relationship between the “militia” and the right to “keep and bear arms” is unclear. Still, regardless of the ambiguity of the wording, the courts’ interpretations of the Second Amendment had been clear for decades. The right to bear arms applied only to state militias, not individuals. In other words, the amendment did not prohibit states and localities from passing gun control laws. As the Court said in a 1939 case (the last time the justices examined the issue), the Second Amendment prohibited only regulation of weapons which had a “relationship to the preservation or efficiency of a well regulated militia.” Warren Burger, the former chief justice and hardly a liberal thinker, once made the same point in an earthier way. In an interview, he said the idea that the Second Amendment prohibited gun control was “one of the greatest pieces of fraud, I repeat the word, fraud, on the American public by special interest groups.”
But those special interest groups, preeminently the National Rifle Association, found willing partners in the conservative counterrevolutionaries. On many occasions starting around 1980, individuals raised the claim that the Second Amendment protected an individual’s right to bear firearms, and in each case that position was rejected. Literally hundreds of judges ruled the same way in these cases. But pressure from the NRA and like-minded conservative groups (and a handful of liberal academics) kept the issue alive. Then, in 2003, one of these groups found a willing plaintiff—a D.C. security guard who wanted to keep a handgun at home—to challenge the District of Columbia’s strict gun control law.
The case was, in some fundamental respect, a simple one, raising only the question of what the words of the Second Amendment meant. That, in turn, required interpreting the Constitution—a politically fraught endeavor since Meese came to Washington almost three decades earlier and brought originalism from the fringes to the mainstream. In Heller, the five conservatives decided to reject the old view of the Second Amendment and embrace the NRA’s reading. By the familiar vote of 5–4 the Court overturned the D.C. law, and Roberts assigned the opinion to Scalia. It was by far the most important majority opinion of his career.
“We turn first to the meaning of the Second Amendment,” Scalia wrote in the key section of his opinion. The very structure of Scalia’s opinion, no less than the result in the case, illustrated why the case amounted to such a personal triumph for him. He began with what he called “textual analysis,” a close parsing of the words, like “militia” and “keep and bear arms,” and their meanings. This was no idle choice. It was a fundamental tenet of Scalia’s philosophy—that judges should rely on the text of the Constitution, more than the contemporary meaning of the words. He turned next to his “review of founding-era sources”—that is, his quest for the original meaning of the amendment. This was an even more important interpretive choice for Scalia. He searched for the “meaning that ‘bear arms’ had in the eighteenth century,” because to him the meaning of the phrase was necessarily the same in the twenty-first century. Textualism and originalism—these were Scalia’s creeds, and he had now read them into an extraordinarily important case.
Justice Stevens’s dissent suggested the extent of Scalia