Second Amendment mess demonstrates why we need an honest Supreme Court

Posted on March 30, 2016

On March 21, the United States Supreme Court issued an embarrassing ruling. The Supreme Judicial Court of Massachusetts had decided that stun guns are not protected by the Second Amendment; after all, they are not firearms and the framers of the Constitution could not possibly have imagined such weapons when the Bill of Rights was adopted.

The Supreme Court said, in effect, that Massachusetts’ highest court didn’t understand the SCOTUS’ 2008 ruling on the Second Amendment, District of Columbia v. Heller. The Court’s unanimous unsigned 2-page order directed the Massachusetts court to re-explain why stun guns can be banned.

How is it possible that the Massachusetts court—a distinguished group of lawyers—couldn’t understand Heller? Because the 5-4 majority opinion, written by Justice Antonin Scalia, makes no sense. It is a 64-page mess. It certainly seems as if Scalia was trying to cause as much damage as possible, writing a decision so confusing that it would justify endless lawsuits against existing gun laws. As Dennis Henigan, one of the preeminent attorneys in the field, explained, Heller was “a prototypical misuse of judicial power to advance an ideological agenda.”

Let me dig into the Heller case just a little bit as an example of why America desperately needs a Supreme Court Justice who will provide a majority for honest, precedent-based rulings rather than the ideological pronouncements we’ve seen in recent years.

The Second Amendment says: “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 four dissenters in Heller agreed with the 1939 U.S. Supreme Court ruling that the Amendment is about the right to possess guns in connection with service in a militia. Scalia cherry-picked historical “facts,” ignored legislative history, and abandoned well-established rules of interpretation to invent a new right to own guns totally separate from any militia. That took 54 pages. The last 10 pages purport to explain how the Second Amendment should be applied, but it’s never really explained.

Over the past eight years, courts have tried to employ two phrases used by Scalia. One suggests the Second Amendment applied to weapons “in common use at the time” of the Founders, but then goes on to say that means it protects contemporary handguns because they are now (not necessarily then) in common use. This concept refers to the Revolutionary War-era method of calling together a militia where men brought the type of guns they commonly used day-to-day. But it can’t honestly be applied to today’s situation where courts are trying to distinguish “common” from “uncommon” weapons. There were no “uncommon” types in the Founding Fathers’ time; men brought every type of weapon to a militia muster, nothing like a common use distinction existed.

The other phrase infers that the Second Amendment does not apply to “dangerous and unusual weapons.” Scalia uses “dangerous and unusual” to buttress his “common use” argument. But the historic authorities cited in Heller don’t distinguish between the words “dangerous” and “unusual.” The two words together have a single meaning in law. (There are many English legal expressions that link two words, like null and void, fit and proper, terms and conditions, will and testament, etc.) Compare this to the thoroughly-litigated phrase “cruel and unusual.” That doesn’t ban “unusual” punishments at all—in fact, the Supreme Court in Baze v. Rees (2008) upheld the use of a three-drug combination to implement the death penalty, which is an exceptionally unusual way to die. Just as “cruel and unusual” essentially means “unusually cruel,” “dangerous and unusual” means an “unusually dangerous” use of a weapon, not a weapon that’s unusual. In sum, the phrase has nothing to do with whether a weapon is “unusual” and therefore does not support Scalia’s “common use” argument.

No doubt that is far more detail than you need (or want) to know about Heller. But the larger point is, the conservative wing of the Court has repeatedly used false “facts” to pervert the law. Here’s a simpler example. Citizens United v. Federal Election Commission (2010), one of the most destructive 5-to-4 Supreme Court rulings in a generation, is based on the absurd statement that:

[W]e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption…. The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt…. The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.

These conclusions—which are demonstrably false and not supported by any facts in or outside of the record—wiped away what the Supreme Court previously considered a legitimate reason for governments to limit independent expenditures—the concern that such spending would cause “corruption or the appearance of corruption.”

A 5-to-4 conservative majority in 2013 (Shelby County v. Holder) gutted the Voting Rights Act. While upholding the Affordable Care Act (NFIB v. Sebelius, 2012), five Justices ruled that states could not be required to expand Medicaid coverage, breaking about 75 years of precedents for a broad Congressional power through the Commerce Clause. In Walmart v. Dukes (2011), a 5-to-4 majority stopped a class action suit on behalf of 1.6 million women. Five Justices in AT&T Mobility v. Concepcion (2011) struck down a California law that protected consumers from small-print contract provisions that sign away class action remedies. And, of course, there’s the infamous 5-to-4 ruling of Bush v. Gore.

On March 29, the Supreme Court split 4-to-4 in a case that—if Justice Scalia was still alive—would have reversed decades of legal precedent in order to severely curtail funding for public employee labor unions. Such a ruling would have been both radical and purely ideological.

Those of us who went to law school before the appointment of Antonin Scalia by President Reagan in 1986 could hardly have imagined the current state of constitutional law. If states and cities are to have the power to protect their citizens and if individuals (rather than corporations) are to have their fundamental rights protected, there is hardly anything more important than the confirmation of a new Justice, someone like Merrick Garland, who will honestly uphold the Constitution as it was understood before the radical right’s takeover of the Supreme Court.