As most people know by now, Justice Antonin Scalia passed away in his sleep sometime over Friday night and early Saturday morning while on a quail hunting trip to Texas. His death is a loss not only to the gun culture but to the country as a whole. It is also a loss to his wife Maureen and his nine children.
When I choose to think of Justice Scalia’s legacy, I think back to his majority opinion in District of Columbia v. Heller (2008) when he wrote this:
We know of no other enumerated constitutional right
whose core protection has been subjected to a freestanding
“interest-balancing” approach. The very enumeration of
the right takes out of the hands of government—even the
Third Branch of Government—the power to decide on a
case-by-case basis whether the right is really worth insisting
upon. A constitutional guarantee subject to future
judges’ assessments of its usefulness is no constitutional
guarantee at all. Constitutional rights are enshrined with
the scope they were understood to have when the people
adopted them, whether or not future legislatures or (yes)
even future judges think that scope too broad. We would
not apply an “interest-balancing” approach to the prohibition
of a peaceful neo-Nazi march through Skokie. See
National Socialist Party of America v. Skokie, 432 U. S. 43
(1977) (per curiam). The First Amendment contains the
freedom-of-speech guarantee that the people ratified,
which included exceptions for obscenity, libel, and disclosure
of state secrets, but not for the expression of extremely
unpopular and wrong-headed views. The Second
Amendment is no different. Like the First, it is the very
product of an interest-balancing by the people—which
JUSTICE BREYER would now conduct for them anew. And
whatever else it leaves to future evaluation, it surely
elevates above all other interests the right of law-abiding,
responsible citizens to use arms in defense of hearth and
You can also hear Justice Scalia reading the Court’s decision in Heller from the bench here.
I remember something former NRA President Sandy Froman said at the Gun Rights Policy Conference in (I think) Orlando. She said “pray for the five” meaning the majority in the Heller and McDonald decisions.
Unfortunately, there are only four now.
President Obama has said he plans to nominate a successor and that is his Constitutional
right power. However, that right power is subject to the Senate’s Constitutional right power of “advise and consent”. As Second Amendment scholar Josh Blackman has pointed out, it has been since 1880 that a person was both nominated and confirmed to the Supreme Court during a presidential election year when the President and Senate majority were of different parties. Professor Blackman has also posted some potential scenarios.
We in the Second Amendment community and gun culture have lost an intellectual giant. We must be on our guard to make sure Justice Scalia’s replacement – as if he could be replaced – is someone true to the meaning of the Second Amendment. If it means forcing the Republican majority in the Senate to drag their heels, so be it.