Proof of Politics on the Court: The Second Amendment (Part I)

In my previous article “Proof of Politics on the Court: The Establishment Clause”, I pointed out how, in general, the liberal sect of the Court wants to expand the meaning of the Constitution whereas, the conservative sect of the Court wants to limit the meaning of the Constitution to its original intent. The Second Amendment states: “A well regulated Militia, being necessary to the security of the free State, the right of the people to keep and bear arms, shall not be infringed.” For most of history, the Second Amendment applied strictly to militias and the federal government, not the states. That changed with the landmark cases of District of Columbia v. Heller (2008), and McDonald v. Chicago (2010).

In Heller, the Court held that a DC statute which prohibited the possession of handguns was unconstitutional. In this case, it was the conservative sect of the Court which used Substantive Due Process to elevate the fundamental right for each individual “the right of the people to keep and bear arms for self-defense” in particular in one’s home (in the modern era, it’s usually liberals who do this). Justice Scalia’s majority opinion goes to great lengths to show via a historical analysis around the founding era what the words used in the Second Amendment meant. Scalia theorized that the first and second parts of the Second Amendment are mutually exclusive. In other words, the Second Amendment can be read in two parts: “A well-regulated Militia, being necessary to the security of a free State” stands alone as does “the right of the people to keep and bear arms, shall not be infringed”. In the first part, Scalia believes that meaning of “State” is “nation” and the dissent believes it means each state in the Union. State is used in both contexts in the Constitution, but state meaning states in the union is most the popular context. In the second part of the Amendment, Scalia believes that meaning of “the people” means individual rights and not “collective rights”. The most popular use of “the people” in the constitution follows Scalia’s trend of though. The dissent, of course, disagrees. And of course, the dissent believes the two parts of the Second Amendment are implicit and belong together. One can argue that the liberal dissent is using more of a textual reading of the constitution than the conservative sect.

In Troxel v. Granville (2000), Justice Scalia dissents. The majority held that it was a fundamental right for parents to make important decisions regarding the “upbringing of their children” (similar to those rights found in Meyer v. Nebraska - 1923). Although Scalia believes this fundamental right declared by the Court to be factual, but he also believes judges should not be identifying what rights are fundamental and which are not. Scalia discusses cases such as Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925), and West Coast Hotel v. Parrish (1935) which elevated fundamental rights, stating “I would not overrule those earlier cases, neither would I extend the theory upon which they rested to this new context.” So can Scalia’s views in Heller be reconciled with Troxel? Sort of, since the founder’s intention in the second part of the Second Amendment is in the Constitution, it is not a reach to elevate it as a fundamental right. Scalia, clearly did not want to elevate rights not alluded to in the Constitution. Obviously, Scalia’s fundamental right of using handguns for self-defense is not as far a stretch as abortion being a fundamental right.