Gun Rights And Justice Scalia's Brush With The Living Constitution

By Nicole Flatow, cross-posted from American Constitution Society

Justice Antonin Scalia may be the Supreme Court’s “ultimate originalist,” but when it comes to the Second Amendment, he has recently embraced a living Constitution, UCLA law professor Adam Winkler suggests in a column for The Atlantic adopted from his forthcoming book, Gunfight: The Battle Over the Right to Bear Arms in America.

In his article, Winkler traces the surprising and contradictory history of the U.S. right to bear arms, starting with the Founding Fathers’ own version of an “individual mandate” that required many citizens to purchase guns, while forbidding gun ownership for slaves, free blacks, and “law-abiding white men who refused to swear loyalty to the Revolution.”

The National Rifle Association, founded as an organization to improve American soldiers’ marksmanship, was “at the forefront of legislative efforts to enact gun control” in the 1920s and 1930s, and only shifted to become a “lobbying powerhouse committed to a more aggressive view of what the Second Amendment promises to citizens” in 1977, Winkler explains.

In light of this history, Scalia’s 2008 opinion in District of Columbia v. Heller, striking down a D.C. gun-control law, but explicitly leaving intact a host of other limitations on the right to possess firearms quite different than those contemplated by the founders, “is a fine reflection of the ironies and contradictions—and the selective use of the past—that run throughout America’s long history with guns,” Winkler concludes.