Death of Scalia Puts Court's Gun Stance into Question

Remembered for his conservative view and vivid writing, the late Justice Antonin Scalia, who died this weekend, authored notable dissents and several groundbreaking majority opinions during his decades serving on the U.S. Supreme Court. Perhaps the biggest decision he wrote was in District of Columbia v. Heller in 2008, the U.S. Supreme Court’s most significant ruling on guns in modern times.

In the case, the court considered the meaning of the Second Amendment for the first time in 70 years by determining whether the U.S. Constitution protects an individual right to possess firearms or protects gun possession connected to serving in a state militia group.

Scalia, 79, was found dead on Saturday at the Cibolo Creek Ranch in Texas. A staunch conservative, the first-ever Italian-American justice had served on the country’s highest court for 30 years, and in June 2008 scripted the court’s controversial majority decision on the landmark case. In a 5-4 ruling that split the conservative and liberal justices, the court weighed in on gun ownership and took the view that the Constitution protects an individual’s right to own a firearm for personal use. The decision also struck down a decades-old ban on handgun possession and a safe-storage law in Washington, D.C.

The Second Amendment states: “A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” The dissenting justices argued that the Second Amendment was created to ensure states could form militias to combat an overly powerful government, if necessary.

But Scalia rejected their view, saying: “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”

In early 2008, a Gallup poll found a clear majority of Americans—73 percent—believed the Second Amendment guarantees the rights of Americans to own guns. And almost 7 out of 10 were opposed to the law that would make the possession of a handgun illegal, except by the police.

The court’s ruling was a radical departure from a previous decision on the Second Amendment. It arguably is also a decision that advocates on both sides of the gun debate have misunderstood. Despite the court’s ruling that Americans constitutionally can keep a loaded handgun at home for self-defense, Heller also allows for certain restrictions to gun ownership, such as who can own them, and where they guns can be carried. Today, scholars continue to debate the clauses in the Second Amendment.

In the syllabus of the court’s brief, Scalia wrote: “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

As the Law Center to Prevent Gun Violence points out, the court in Heller didn’t address the issue of whether the Second Amendment restricts state and local governments. But the question was addressed two years later in McDonald v. City of Chicago , in which the justices ruled the Second Amendment applies to individual states.

As the justices prepare to start hearing arguments in just a few weeks, there isn’t an incoming case involving the Second Amendment. But Scalia’s unexpected death comes amid political turbulence in an election year, and brings into question the Supreme Court’s standing on gun rights. Despite calls from top Republicans for the Senate to refuse considering a replacement from President Barack Obama, he has said he will fulfill his constitutional obligations by nominating a replacement to Scalia’s now-vacant seat.