Days prior to Justice Antonin Scalia's passing on Feb. 13, Ammon Bundy and fellow militia leaders were forced to end their siege of the Malheur National Wildlife Refuge in Harney County, Ore. In spite of sincere desires to stand against perceived federal government tyranny, televised images of Bundy and friends revealed them a tad under-prepared. North Korean leader Kim Jong Un thinks it sheer folly to assume one can deter U.S. military might with the handheld weapons these men carried. Kim thinks nothing short of a robust nuclear arsenal will do. Assuming Kim is correct, does the celebrated Justice Scalia's District of Columbia v. Heller jurisprudence justify a right to keep a nuclear bomb stored in one's basement?
This should sound like an absurd question, but the most celebrated sections of Scalia's Heller opinion, establishing a natural-law right to bear arms, actually answer this absurdity with a resounding "yes." However, before rushing off to peruse weekend specials on nuclear bombs in Jane's Defense Weekly, read the rest of the opinion.
In his final sections, Scalia's robust commitment to an individual right to bear arms virtually evaporates. He is not the strong advocate for gun rights he is made out to be.
Scalia starts his Section III by stating that no right is absolute. He then provides a major setback to gun-rights enthusiasts by establishing potentially broad-reaching criteria for limiting the reach of Second Amendment protections:
"We also recognize another important limitation on the right to keep and carry arms. Miller said ... that the sorts of weapons protected were those 'in common use at the time.'... We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'"
Though Scalia does not outright state only those weapons in common use at the time of the founding are protected, and though he eventually declares the District of Columbia's ban on possessing handguns in the home unconstitutional, by committing the Supreme Court to the "dangerous and unusual" standard, Scalia opens the door for future courts to restrict the possession of many weapons, perhaps even handguns in the home. Just as the Supreme Court eventually ruled racial segregation in public schools unconstitutional, under Scalia's precedent, future courts may determine handguns are not protected by the Second Amendment. All that is necessary to satisfy Scalia's criteria is to demonstrate that handguns are indeed "dangerous."
Scalia further frustrates gun-rights advocates by supporting federal authority to restrict firearms from felons (Ammon Bundy and other members of his militia face felony charges—if found guilty, Scalia's opinion supports stripping them of all rights to bear any arms) as well as allowing for broad restrictions for carrying arms. Fully aware that the Constitution's Commerce Clause has been used to aggressively expand congressional authority, Scalia still condones federal authority over the commercial sale of weapons:
"Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons ... 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."
These are perplexing words for those arguing Scalia created a strong precedent protecting an individual right to bear arms. Heller actually supports federal authority to end the sale of weapons altogether through strict commercial regulations. Perhaps the only weapons that fully survive Scalia's Second Amendment jurisprudence are non-dangerous weapons of the homemade variety.
It is further significant that after establishing the primary purpose for adopting the Second Amendment was to ensure against federal tyranny—Ammon Bundy's precise cause—Scalia implies that advances in technology necessitate the nullification of its original purpose. Private citizens would need a right to the same weapons the government has in order to successfully deter government tyranny, Scalia reasons. What's more, he concludes, such a ruling would be absurd. Nuclear bombs are definitely out of the question.
Finally, Scalia uses Heller to emphasize Second Amendment restrictions on gun rights only apply to Congress and not to state governments. In a later opinion, McDonald v. City of Chicago, Scalia buckles and joins Justice Samuel Alito in determining the Second Amendment actually does apply to state governments; but, in Heller, Scalia remains true to his "states' rights" stance.
In sum, though Scalia does establish an individual right to bear arms, he leaves it a rather vague right. Ironically—and perhaps most telling, given his cry that Supreme Court justices avoid making law—Scalia's ultimate precedent is the empowering of future justices to determine the law on more important gun rights questions.
Kerry Hunter is a professor of constitutional law and political philosophy at the College of Idaho, and author of the recently published book Approaching the Constitution: Sacred Covenant or Plaything for Lawyers and Judges.