More U.S. Gun Regulation Inevitable? Scalia's Heller Opinion in the Crosshairs


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Scalia wrote the majority opinion, which overturned the District of Columbia’s handgun ban and affirmed and individual right to keep and bear arms, irrespective of the militia.

Campaigning for her mother in Maryland last week, Chelsea Clinton said the Supreme Court could issue a "definitive" ruling on gun control in the near future. Clinton didn't define "definitive," let alone "gun control." But with a vacancy on the court following the death of Antonin Scalia, it seems more than plausible that Clinton the Younger was referring to overturning the landmark decision in District of Columbia v. Heller.

Scalia was the author of Heller, the 2008 ruling that established an individual right to gun possession. Scalia's death -- despite the still uncertain prospects of replacing him -- has raised a question about Heller's durability.

Heller was decided by a 5-4 majority. The dissent, written by Justice John Paul Stevens, was not meek. Stevens basically accused Scalia of throwing out two centuries of legal precedent and reading Scalia's own preferences into the Second Amendment. Scalia, he wrote, all but dismissed the amendment's highly inconvenient preamble placing gun rights within the context of a "well-regulated militia."

Without identifying any language in the text that even mentions civilian uses of firearms, the Court proceeds to "find" its preferred reading in what is at best an ambiguous text, and then concludes that its reading is not foreclosed by the preamble. Perhaps the Court's approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow.

In other words, Scalia, Ye Olde and Venerable Originaliste, was making it up.

The respected conservative appellate court justice Richard Posner later piled on, writing in the New Republic that Scalia's opinion was "questionable in both method and result, and it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology." Read More

James Barrett Wilson, Jr., is a 2nd Amendment attorney practicing in North Carolina for over 25 years. The attorney network of North Carolina Gun Trust covers the entire state. Your North Carolina Gun Trust also comes with "Attorney Support" when you may desperately need legal support down the road. Do not risk your firearms collection investment to unsupported, inadequate and insufficient Do-It-Yourself form legal documents.

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