Justice ScaliaSteven Lieberman
Justice Antonin Scalia
On February 13th we lost a happy warrior.
One of the greatest legal minds of our time passed on. Justice Scalia was already a tremendous intellect when Ronald Reagan wisely appointed him to the bench, to replace Justice Rehnquist who had been elevated to Chief Justice.
A member of the Federalist Society, Justice Scalia would always engage in a two part analysis of any law that appeared to be at odds with the Constitution.
He called himself a “Textualist”.
Essentially he believed that the actual written word of the Constitution should be read and interpreted in the manner in which it was written. Those laws that are contrary to the actual written word of our founding document are to be considered antithetical to the philosophical underpinnings of our experiment in popular government.
Then he would perform a secondary analysis of “Original Intent”. Words by their vary nature have the potential for ambiguity. To understand the words written requires a historical analysis of the intent of the Framers.
(If you have arrived here from our newsletter, continue reading here:)
This interest in “intent” made for fascinating historical analysis of contemporary events seen through the lens of the Framers. We have all fantasized about bringing the likes of Madison, Jefferson, and Hamilton into a room through time travel and seeking their counsel about current problems that face the Republic. For all intents and purposes this is exactly what Scalia did.
For us that live in the “Gun Culture”, he was also our ultimate champion.
For a case to be heard by the Supreme Court four justices must agree to grant Certiorari. (Certiorari… or Cert… is the agreement by the Supreme Court to actually hear a case. If the Court fails to grant Cert than the lower court ruling stands).
While it only takes four justices to hear a case… it takes five to win one.
During the late eighties and early nineties, we had what could best be called a putative conservative court under Rehnquist.
Generally conservative yes… gun rights enthusiasts… no.
Many of us in the firearms community did not realize that the Supremes were not completely on our side.
Justice Scalia did though.
Fearing that a Supreme Court case that rested on the premise that the Second Amendment is a fundamental right, and thereby incorporated to the States via the Fourteenth Amendment might have four votes to be heard, but not the five necessary to win… Scalia steadfastly refused to grant Cert.
His fear was a legitimate one.
If a case were to be decided that the Second Amendment was not a fundamental right, future generations would have their rights to keep and bear arms literally held hostage by politicians.
As a fundamental right, laws that implicate that right would need to be reviewed under a Strict Scrutiny analysis. (There must be a compelling state interest, and there could be no less restrictive alternatives.)
As a non-fundamental right, the right could be limited by laws that had a “legitimate state interest” and are “rationally related” to that interest.
When Justice O’conner left the bench and was replaced by Justice Alito, Scalia knew he had his five justices and the Landmark case of Heller v. District of Columbia was heard. In that case, which he authored, he stated emphatically that he Right to Keep and Bear Arms was indeed a “Fundamental Right”.
This vacancy also puts into question the case of Kolbe v. Hogan that we wrote about last week.
That case calls into question the scope of protection afforded by the Second Amendment.
As of this writing President Obama has declared that he will seek to fill the vacancy on the Court. However his ability to do this is problematic. Republicans that control the Senate where the nominee will be voted on have already stated that they feel that a nominee this close to the election should be left to the next President. Political intrigue may delay the confirmation process to such an extent that this become a fait accompli.
If the case of Kolbe is heard by only eight sitting justices, and the case ruling is split so that there is no majority the Lower Court ruling will stand.
As with all things that take place in Washington we will have to wait and see what happens.
That being said, we should all take time to quietly say a thank you to one of the staunchest defenders of the Constitution. A giant that lived among us.
God speed Justice Scalia.