“It is not often in the law,” he said, “that so few have so quickly changed so much.”
7
THE HUNTER
As the Roberts era began, Antonin Scalia’s spirits were low. Notwithstanding his halfhearted denials, he had hoped to be named chief justice. His old friend Dick Cheney, with whom he served in the Ford administration, raised the possibility of the promotion for Scalia, but the idea never went anywhere with President Bush. Much as Scalia was a hero to conservatives, he was also nearly seventy years old. The opportunity to control the Court for a generation was far more important to Bush, and even to most fellow believers, than rewarding Scalia for a job well done.
In truth, Scalia had mixed feelings about being on the Court at all. He often said that he would have left the Court years earlier if he could have found another place where people would pay as much attention to his ideas. But there was no such place. In routine cases, Scalia barely went through the motions. For these, his clerks learned to operate with minimal guidance from their boss. Scalia’s belligerence at oral arguments, particularly in minor cases, was a way for him to keep paying attention—and getting attention. Scalia craved the spotlight. When O’Connor left the Court, Scalia often took over her custom of asking the first question during oral arguments. When another justice made a joke, Scalia invariably tried to top it.
On the cases that mattered most to him, though, Scalia hated to lose, and for most of his career on the Court, he lost more of these than he won. In 1992, Scalia thought he was within reach of overturning the hated Roe v. Wade. But then O’Connor, Kennedy, and Souter betrayed him in Casey. Scalia’s dissent was splenetic. (“The Imperial Judiciary lives,” he sneered.) Scalia was even more apoplectic in 2003, when the Court ruled in Lawrence v. Texas that gay people could no longer be prosecuted for having consensual sex. (“Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct,” he wrote.) Scalia’s gift for invective made his dissents far more memorable than his majority opinions, but still, he grew weary of writing them.
It was no coincidence that cases involving the culture war moved Scalia the most. He regularly spoke to Catholic groups, and over the last decade he often gave them the same speech in slightly different forms. It was a sarcastic look at how he thought true believers were viewed by secular elites. “We must pray for courage to endure the scorn of the sophisticated world,” he would say. “Surely those who adhere to all or most of these traditional Christian beliefs are to be regarded as simple-minded. Devout Christians are destined to be regarded as fools in modern society.” His remarks would often close, “If I have brought any message today, it is this: Have the courage to have your wisdom regarded as stupidity. Be fools for Christ. And have the courage to suffer the contempt of the sophisticated world.” Biblical literalism was never far from constitutional literalism, or, as Scalia called it, textualism.
There was some irony in Scalia’s sense of victimhood, because his own career had been one of perpetual ascent. He was born in Trenton and raised in Elmhurst, Queens, where his father commuted to a job as a professor of Romance languages at Brooklyn College. (He translated works of Italian literature.) His mother taught elementary school. Nino, their only child, excelled academically. He made law review at Harvard. While a law student, he met his future wife, Maureen, who was a Radcliffe undergraduate. They have nine children. One is a priest.
After a brief stop at a Cleveland law firm, Scalia became a professor at the nation’s top law schools. (He taught at Chicago, Stanford, Georgetown, and Virginia.) Like Breyer, Scalia was principally interested in administrative law, but Scalia generally took stronger antiregulatory positions than Breyer did. His views drew the attention of the conservatives ascendant in Washington, and he served in the Justice Department under President Ford. Reagan put him on the D.C. Circuit in 1982, when he was just forty-six, and on the Supreme Court four years later. Scalia’s Italian roots and Catholicism, far from being disabilities, were the deciding factors in his getting the nomination over Robert Bork.
Scalia had, in some ways, the best of both worlds, even if he didn’t see it that way. He was by far the favorite justice of the cultural warriors—the religious groups, the Federalist Society—and he reflected and encouraged their sneers at “the sophisticated world” and the “law-profession culture.” At the same time, he earned the admiration of that world, too. Even if his former colleagues in the legal academy didn’t share Scalia’s judicial philosophy, they recognized his achievement in placing a fully formed ideology at the center of American constitutional law. The magnitude of Scalia’s accomplishment should not be understated. In the modern era of the Court, only Scalia, Oliver Wendell Holmes, and perhaps William Brennan introduced their own judicial philosophies into the life and work of the Court.
This was apparent in 2006, after Scalia saw the chief’s chair slip away from him forever. Over two days in November, Harvard Law School held a celebration of Scalia’s twentieth anniversary on the Supreme Court. The event was the brainchild of the dean of Scalia’s alma mater, Elena Kagan. Kagan was a veteran of the Clinton administration, a failed nominee to the D.C. Circuit herself. Everyone in Cambridge knew she didn’t share Scalia’s politics or his judicial philosophy, but that made it all the sweeter for Scalia when Kagan and her colleagues paid such fulsome tribute to him. “His views on textualism and originalism, his views on the role of judges in our society, on the practice of judging, have really transformed the terms of legal debate in this country,” Kagan said in her speech. “He is the justice who has had the most important impact over the years on how we think and talk about law.”
Given his background, Scalia’s embrace of such culture war touchstones as opposition to abortion and gay rights was unsurprising. He also had a long history with guns, which was not exactly what one might expect of a native New Yorker.
As a teenager, Scalia commuted from Queens to Manhattan to attend Xavier High School, an all-male Jesuit institution on Sixteenth Street. Even for its time—Scalia was class of 1953—Xavier was an unusual place because every student was required to participate in junior ROTC. After school, young Antonin participated in drills at an armory, and he took his rifle, a .22 carbine, with him on the subway—a novelty, to be sure, and not then a violation of law. For many years, the exigencies of adult life took Scalia far away from the world of guns, but eventually he returned.
In 1991, Scalia replaced Byron White as the justice responsible for the Fifth Circuit, which includes several southern states. Scalia started making regular trips to the region, and friends down there began inviting him along on hunting expeditions. Scalia fell hard for the sport, especially the pursuit of birds like turkeys. Briefly, though, Scalia became the most famous duck hunter in the country. In January 2004, he invited Dick Cheney to join him on a duck-hunting trip in Louisiana. As it happened, a legal challenge to the secrecy of the vice president’s energy task force was pending before the justices, and Scalia faced robust criticism for socializing with a litigant. In a characteristically combative riposte, Scalia filed a twenty-one-page memorandum justifying his trip. “The Vice President and I were never in the same blind, and never discussed the case,” he wrote. “Washington officials know the rules, and know that discussing with judges pending cases—their own or anyone else’s—is forbidden.” In any event, more than his colleagues, Scalia had a personal interest in the constitutional status of firearms—a subject the Court had not addressed in many years.
In its first two hundred years, the Supreme Court discussed the Second Amendment in any depth on only one occasion. The case arose on April 18, 1938, when state troopers arrested a small-time hood named Jack Miller and an accomplice in Siloam Springs, Arkansas. Miller was a suspect in the killing of a court reporte
r (of all people) in a bar fight, and he had turned state’s evidence after a string of bank robberies. At the time of his arrest, there were two unregistered sawed-off shotguns in the car, and Miller was charged with violating the National Firearms Act, which had been passed in 1934 in response to the St. Valentine’s Day massacre and other notorious crimes of the era. A federal district judge in Arkansas threw the case out on the ground that the law violated Miller’s rights under the Second Amendment.
In 1939, the Supreme Court unanimously reversed the district judge and held that the firearms act complied with the Second Amendment. To achieve that result, Justice James McReynolds had to excavate a part of American history that was obscure even then. In the days before the American Revolution, there was no standing army in the colonies. Instead, when there was need for collective military action—usually against Indians—the colonists formed militias. The militias relied on the guns and gunpowder of private citizens, which were sometimes stockpiled together for later use. During the period immediately before and during the Revolution, the British took to seizing the guns of the colonists, who were understandably outraged.
When it came time to write a Constitution, the framers took care to preserve the independence of these local militias from interference by the central government. There are several references to militias in the Constitution, though the Second Amendment is today by far the best known. Article I states that Congress has the power:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; [and]
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.
Article II says the president is commander in chief of the army, navy and “Militia of the several States, when called into the actual Service of the United States.” In other words, when the Constitution was being framed, the militias were a vibrant and significant part of American life. They survived into the nineteenth century, and then, in the Militia Act of 1903, their functions were formally subsumed into other agencies, like the National Guard and other law enforcement and military entities.
It was against this background that the Supreme Court weighed the challenge to the early form of gun control in the Miller case. McReynolds’s opinion for the Court was almost entirely originalist in its reasoning. The opinion quoted the provisions of Article I dealing with the militia powers, and then stated, “With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” Indeed, if the Second Amendment were intended by its framers to give individuals a right to keep and bear arms, the initial militia clause would be both unnecessary and meaningless.
McReynolds went on to say that the framers believed militias would protect the rights of the people from an oppressive central government. “The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia—civilians primarily, soldiers on occasion.” He quoted William Blackstone and Adam Smith on the importance of militias and reviewed the state laws concerning them. “Most if not all of the States have adopted provisions touching the right to keep and bear arms,” he wrote. “But none of them seems to afford any material support for the challenged ruling of the court below.” For these reasons, justices concluded that the Second Amendment existed to preserve the rights of militias—not individuals—to possess arms.
After the unanimous and largely uncontroversial decision in United States v. Miller, the issue of the Second Amendment more or less disappeared from the national agenda for decades. During and after World War II, the United States entered a period of prosperity and safety. There was little call for gun control, and thus no reason to challenge the constitutional basis for it. That began to change in the 1960s, when assassinations and crime generally built political momentum for restrictions on gun ownership. Following the murder of Robert F. Kennedy, Congress passed the Gun Control Act of 1968, the last major piece of legislation of Lyndon Johnson’s presidency. The bill’s restrictions were modest—prohibiting the sale of most firearms through the mail, limiting certain high-risk people from buying guns. There was widespread support for the law, even from the National Rifle Association. In this period, part of what it meant to be tough on crime—a traditional Republican goal—was to endorse gun control. President Gerald Ford, a typical member of his party for his era, proposed gun control legislation. But Ronald Reagan, Ford’s opponent for the Republican nomination in 1976, was staking out a different position.
Reagan worked opposition to gun control into a broader libertarian message. To him, gun control was just another big-government program that did more harm than good. Gun control punished law-abiding citizens while leaving firearms in the hands of criminals. What was more, Reagan hinted, gun control was prohibited by the Second Amendment. “The Second Amendment gives the individual citizen a means of protection against the despotism of the state. The rights of the individual are preeminent,” Reagan wrote in Guns & Ammo magazine in 1975. “The Second Amendment is clear, or ought to be. It appears to leave little if any leeway for the gun control advocate.” Reagan lost in 1976, but times were changing. The 1972 Republican platform had supported gun control, but the 1976 platform opposed it.
The political and legal branches of the conservative movement joined forces in support of a new reading of the Second Amendment. On May 21, 1977, a hard-line faction of the National Rifle Association staged a coup d’état at the annual meeting of the group, in Cincinnati. Out went the traditional emphasis on gun safety and in came a new focus on political action, especially in fighting gun control. The NRA financed a group called Academics for the Second Amendment, which advocated for the individual rights view in conferences and seminars. Still, this position remained well outside the legal mainstream, if not downright eccentric. The rule of the Miller case remained the unchallenged law of the land. Not even a lower federal court had embraced the view that the Constitution limited the ability of the government to regulate gun ownership. A few years after Warren Burger stepped down as chief justice, he said in an interview on PBS that the Second Amendment “has been the subject of one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special interest groups that I have ever seen in my lifetime.”
Nevertheless, gun rights joined “family values” and the anti-abortion fight as key planks of the conservative agenda that in 1980 propelled Reagan into the presidency and the Republicans into the Senate majority. When Orrin Hatch, the Utah Republican, became chairman of the Subcommittee on the Constitution, he commissioned a report entitled “The Right to Keep and Bear Arms.” In the preface he wrote, “What the Subcommittee on the Constitution uncovered was clear—and long lost—proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.” The chief author of the report was a Hatch staffer named Stephen Markman, who later joined the Reagan Justice Department. There, one of Markman’s junior colleagues was Samuel Alito.
Crime spiked again in the early nineties, and the Clinton administration, in its early days, responded by passing what became known as the Brady bill, named after James Brady, Ronald Reagan’s press secretary, who was wounded in the 1981 attempted assassination of the president. This complex piece of legislation included an interim provision that directed state and local officials to conduct background checks for prospective handgun purchasers. That portion of the bill was challenged, and in 1997, by a 5–4 vote, the Supreme Court found the temporary part of the law unconstitutional. Scalia’s opinion for the Court in Printz v. United States concluded that the law amounted to an impermissible federal intrusion on states’ rights.
Thomas joined Scalia’s opinion for the majority but wrote a concurring opinion that examined the case in a different way. Thomas devoted his argument to the Second Amendment, which the Court had not addressed since the Miller case in 1939. He suggested that the Brady bill might be unconstitutional as a violation of the Second Amendment. “Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the ‘right to keep and bear arms’ is, as the Amendment’s text suggests, a personal right,” Thomas wrote. Concluding with a flourish and referring to Joseph Story, a renowned figure from the early days of the Court, Thomas declared, “Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms ‘has justly been considered, as the palladium of the liberties of a republic.’ ”
Thomas’s opinion marked the near culmination of a remarkable political and legal undertaking—an example of the “living Constitution” in action, even if that was not how the protagonists described it. A small group of activists took a fringe and discredited constitutional interpretation, injected their considerable passion, intelligence, and financial resources, and nearly brought their ideas to success.
The actual culmination of their work would take a little longer.
8
LAWYERS, GUNS, AND MONEY
The Supreme Court can sometimes have the last word, but it never has the first. The executive and legislative branches of government can initiate action on any issue of their choosing. But the justices must wait for a case to come to them. Some or all of the justices may be itching to rule on a subject, but they have no chance to do so until an appropriate appeal arrives at their door. When it came to guns, that was what made Bob Levy so important.
The Oath: The Obama White House v. The Supreme Court Page 12