That is, when first he practiced to deceive everyone into thinking that the Second Amendment's "militia" language was just surplusage, to be tossed out the window as quickly as possible in favor of an individual constitutional right to bear arms. So the Supreme Court held, in a 5-to-4 decision in District of Columbia v. Heller v. District of Columbia, with the majority's opinion authored by Scalia. And yet, per Scalia, that right was not an absolute one; it was subject to "reasonable" restrictions, according to a paragraph tacked on to the end of the opinion and otherwise seemingly at war with the rest of it. In effect, Scalia was trying to have it both ways on the issue, without any precedential or philosophical justification for doing so.
Putting it in the vernacular, Heller is one hot steaming mess of a decision. The one thing on which both gun rights advocates and gun control advocates agreed on at the time it was released by the Court is that the floodgates were now open to new cases deciding the parameters of "reasonableness" when it comes to gun laws. And, indeed, those cases have been brought into and decided by lower Federal courts. So where is the Court, when it comes to these opportunities to clarify its Heller handiwork?
In its own version of the witness protection plan, as it turns out. And not likely to emerge from it for a long time.
One can easily understand why. Consider the sheer number of laws that now exist, either promoting or restricting the rights of gun owners. Every one of those laws can theoretically be considered either "reasonable" or "unreasonable," depending on the eye of the beholder. The same can be said of every law designed to replace any law not found to pass constitutional muster. This is a conservative Court that defines that conservatism in part by taking the fewest number of cases possible. The last thing it wants to do is turn into a traffic cop for the back-and-forth battles between the NRA and advocates of public safety.
Why did the Court set itself up this way in Heller? The Slate article hyperlinked above possesses one tantalizing clue: the suggestion that Justice Anthony Kennedy would not have voted with Scalia if Scalia hadn't inserted the language about "reasonable" restrictions. That paragraph is more consonant with Kennedy's approach to constitutional issues than Scalia's. It also explains why that paragraph feels like it's been copied and pasted into the decision from another case. In effect, it was the price Scalia paid for Kennedy's vote. (And don't think that sort of horse-trading doesn't go on in the Justice's chambers. Bismarck's admonition that no one should see how laws or sausages are made applies as much to judicial chambers as it does to legislative ones.)
It would not help matters for the Court to adopt my view of the constitutionality of gun ownership. That view, simply put, is that the Second Amendment was enacted to protect the slave patrols, that the Thirteenth Amendment effectively nullified it, and that gun rights are, per the Tenth Amendment, divided between the states and the people, with the latter enjoying the right to own guns and the states being permitted to reasonably police that ownership. Federal restrictions are permissible if identifiably tied to a specific federal power. That perspective, even if written into an opinion by the Court, would not put the Court in a different position from the one it now faces.
So, what to do? Even if our politics weren't polarized up to our eyebrows, I don't think any of us has an easy way out of this mess. Ultimately, I believe what we need is a constitutional amendment to enshrine sensible gun policy into our basic law. It may happen one day, and I hope I live to see it. But, to paraphrase George Washington in one of his dispatches to the Second Continental Congress: dear God, what precious lives will be senselessly lost before we get there.
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