Friday, February 26, 2016

Firearms Friday: Justice Scalia


A couple of weeks ago we lost a tremendous intellect on the Supreme Court when Antonin Scalia passed away. While there have been many who have criticized his views over the years, including in the firearms community, there is no questioning the passion that he had for the Constitution and for the true intent of the Founding Fathers who wrote it. In fact, there were times when he himself didn’t completely agree with his own decision but reached the conclusion that he did because it was the right decision. As he has been quoted as saying, “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”

Surprisingly, one of the more balanced ‘obituaries’ written shortly after his death can be attributed to Mark Sherman at the Associated Press who rightly focused on Scalia’s commitment to textualism. In part, he writes:

Scalia showed a deep commitment to originalism, which he later began calling textualism. Judges had a duty to give the same meaning to the Constitution and laws as they had when they were written. Otherwise, he said disparagingly, judges could decide that "the Constitution means exactly what I think it ought to mean."

A challenge to a Washington, D.C., gun ban gave Scalia the opportunity to display his devotion to textualism. In a 5-4 decision that split the court's conservatives and liberals, Scalia wrote that an examination of English and colonial history made it exceedingly clear that the Second Amendment protected Americans' right to have guns, at the very least in their homes and for self-defense. The dissenters, also claiming fidelity to history, said the amendment was meant to ensure that states could raise militias to confront a too-powerful federal government if necessary.

But Scalia rejected that view. "Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct," Scalia wrote.

Unfortunately, his passing leaves a gaping hole in the highest court in the land. Not because he sided primarily with one party or another but because he was an originalist. There is too much ‘selective interpretation’ in politics and in the courts today and having someone relying solely on the text is a tremendous grounding asset that has been taken for granted for too long. Additionally, the passion that he freely expressed for our founding document is something that was evident in the eloquence of his majority opinions but especially in his dissenting opinions.

It is a shame that the two things that have been talked about most since his passing is the lack of respect by the President in not attending his funeral (but he took the time to meet with the ‘death to the police’ Black Lives Matter organizers) and the ongoing debate surrounding the nomination of a replacement. Here is a revolutionary idea, why don’t we honor his memory by nominating someone who views our Constitution in the same unbiased way making decisions based on the text rather than the social flavor of the month. No politics, just focusing on the text. I’m not even asking for nine, I just want to see one Justice on the Supreme Court who takes their oath literally.