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The headline on the Onion's obituary for Supreme Court Justice Antonin Scalia summed up a lot of what Scalia's legacy will come to mean: Justice Scalia Dead Following 30-Year Battle With Social Progress.
Scalia's most notable dissents and other pronouncements over the last couple of decades have been almost all centered around social issues. His dissent on the Obergefell case last year, the one that cemented a right for same-sex couples to marry nationwide, shows this as much as any.
"The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie," he wrote of the majority opinion. In a another part of the dissent, he invoked the free-love movement of the 1960s: "Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie."
Similar scholarly and witty retorts peppered his majority opinion dissents in cases about the expanding health care through Affordable Care Act, knocking down anti-sodomy and anti-gay sex laws, trying to ban the death penalty ("Mere factual innocence is no reason not to carry out a death sentence properly reached," he wrote) and more. Say what you will about Scalia's actual jurisprudence, he was a smart and talented wordsmith.
But he could also be mean-spirited as well as witty in his rejoinders on such issues. Over the years, he's compared homosexuality to child pornography and outright murder, for example. In oral arguments last December in an affirmative action case, he suggested that minority college applicants ought to give up on top-tier universities and set their sights on "a less-advanced school, a slower-track school where they do well."
The good news, as that Onion headline suggests, is that Scalia was simply on the wrong side of history on these issues. The moral arc of the universe is bending away from his deeply Catholic morality and his harsh, boot-strap economic philosophy. The lower-court decision on that affirmative action case, for instance, will now possibly stand (depending on the whims of Justice Anthony Kennedy), meaning that mediocre white people may not to claim their privilege quite as easily any more. Fingers crossed on that one.
At any rate, Scalia's legacy in these social-issue areas will be felt only in its absence and in the writings and rantings he leaves behind exemplifying the fuddy-duddyism of those in his mold. While he was not a literal flat-earther (that I can find), Scalia's moral pronouncements will be filed in the same dustbin of history.
Except on one issue of particular importance to me: gun control. Scalia wrote the majority opinion in the 2008 case District of Columbia v. Heller. Legal scholar Jeffrey Toobin explains why this was so important in his New Yorker obit for Scalia.
"Reversing a century of interpretation of the right to bear arms," Toobin says of Scalia, "he announced that individuals have a constitutional right to possess handguns for personal protection. The Heller decision was so influential that even President Obama, whose politics differ deeply from Scalia’s, has embraced the view that the Second Amendment gives individuals a constitutional right to bear arms."
This may feel surprising to you given that, for the better part of 40 years, the National Rifle Association has been telling Americans that they have an individual right to bear arms fully outside of any government regulation. NRA headquarters are emblazoned with only the second half of the Second Amendment, the half that says nothing about a well regulated militia being necessary to the security of a free state. The only thing that matters to them is right of the people to keep and bear arms, unfettered by government intrusion.
However, until Heller, that was not the law of the land. Toobin mentions "a century of interpretation," and according to the Law Library of Congress, the pre-Heller view of firearms ownership had been the judicial standard since at least 1875. Some scholars even suggest that James Madison's original intent, based on the context of the amendment's writing and passage in 1789, was based entirely in the amendment's first half.
"The 2nd Amendment represented Madison's attempt," wrote historian By Joseph J. Ellis in 2013, "to respond to the fears of a standing army by assuring that national defense would reside in the states and in militias, not at the federal level in a professional army. The right to bear arms derived from the need to assure that state militia could perform its essential mission."
Scalia's ruling doesn't leave guns totally unregulated; he explicitly wrote that the government could still restrict who gets a firearm – none for violent felons, for example – and even some kinds of firearms, as Heller applied only to handgun bans.
Yet as Toobin notes and as Ellis echoes, the Second Amendment as an amendment about individuals rather than about militias is now not only the law of the land but also basically the general understanding. Even Obama, the former professor of Constitutional law, sees the Second Amendment now in terms only of individual rights, says Toobin.
So whatever happens in the fight to replace Scalia on the court, it seems unlikely that Obama is going to seek out someone who will make overturning Heller a possibility.
Make no mistake, that fight over Obama's nominee will be critical. Republicans have already decided that their "advice and consent" is basically to tell Obama to sit down and shut up. Wisconsin's own Ron Johnson is one of dozens of GOP senators insisting that Obama ignore his Constitutional duty to nominate someone and instead leave the seat vacant until the next president is sworn in next January.
It strikes me that Scalia, with his insistence on textual originalism when interpreting the Constitution (even when, as we've seen, his interpretation might conflict with the original intent) would, if he could, rhetorically smack the mess out of those senators. There is no question Obama must make a nomination, nor is there a question that the Senate should hold a vote.
Just keep in mind, though, that whether you agree with Scalia's treatment of gun laws or not, whoever that nominee is, whoever the next justice on the court will be, America's epidemic of gun violence will not be easily helped given Scalia's one, lasting legacy: his unprecedented and ultimately dangerous inversion of the second amendment.