The recent sudden death of 79 year old Supreme Court Justice Antonin Scalia brought renewed attention to one of his most heralded and criticized decisions on the Second Amendment. The Amendment states: “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.” In 2008, Scalia scripted the court’s 5-4 majority decision on guns with a controversial ruling that the Amendment protects an individual’s right to own a firearm for self-defense in the home.
But the Second Amendment only protects the right of people in the states to maintain militias. It is Congress that holds the power to organize and arm the militia and call up the militia “to execute laws, suppress insurrections and repel invasions.” The Constitution spells out no specific individual right to firearms ownership.
Scalia, however, described the “militia” not as a formal military organization but as everyone qualified to keep and bear arms. The Second Amendment therefore means that all who exercise firearms rights should be “well-regulated.”
Scalia recognized that gun ownership is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” He cited prohibitions on the possession of guns by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Despite the nation’s harrowing problems of mass shootings and the roughly 30,000 lives lost to gun violence each year, Republicans, backed by the National Rifle Association, oppose gun controls. The NRA lobbies against all forms of gun regulations at the local, state and national levels. It uses the baseless argument that the government intends to trample gun owner rights and to confiscate their firearms. The NRA has succeeded in persuading state legislators to expand gun rights in the form of vigilante-style “stand your ground” and “open carry” laws.
Sensible regulation, on the other hand, would mean requiring everyone who owns a gun to register it, creating a comprehensive data base of all guns and their owners. Gun owners would also need a license demonstrating their responsible use of a firearm and passing a background check. Registration could employ emerging technology, recording unique characteristics of a firearm’s barrel and stamping ammunition with identifiers. Such effective gun regulations would not prevent law-abiding people from obtaining guns for lawful self-defense.
Without Scalia, the justices are evenly divided between Republican and Democratic appointees—which probably means a hung court on many issues. Under the Constitution, President Obama has the power to nominate judges of the Supreme Court. But congressional Republicans have already indicated that they will block the President’s choice until after the upcoming national elections. By taking this position, Republicans merely continue to obstruct almost any initiative of the Obama administration, even one that the Constitution gives to the President. Given the Senate’s constitutional role to advise and consent on the President’s selection of Supreme Court judges, refusing to even hold hearings amounts to an unconstitutional act.
Scalia’s death comes amid the political turbulence in an election year, and it brings into question the Supreme Court’s standing on gun rights. Several other issues on labor, voting rights, and women’s health are now pending before the court. This fall, Americans will not just pick a new chief executive and members of Congress, they will set the course of the Supreme Court for a generation.
Ralph Scharnau teaches U.S. history at Northeast Iowa Community College, Peosta. He holds a Ph.D. from Northern Illinois University. His publications include articles on labor history in Iowa and Dubuque. Scharnau, a peace and justice activist, writes monthly op-ed columns for the Dubuque Telegraph Herald.