By Alexandria Kincaid, Attorney
Until his last day, Justice Antonin Scalia remained a true patriot and defender of our Constitution. A judicial conservative, his opinions were based not on his personal biases, but on the outcome that conformed to the plain meaning of the United States Constitution. Unlike other judges and justices, Justice Scalia refrained from judicial activism. Instead, he focused on the plain language of our Constitution and how to apply the Founders’ original intent to a situation at hand. He believed that the United States Constitution says what it means and means what it says. In doing so, he recognized and supported the separation of powers between government entities, including the executive branch, the legislative branch, and the judicial branch. Justice Scalia criticized the Supreme Court justices who did not recognize such constitutional limitations: “This Court seems incapable of admitting that some matters—any matters—–are none of its business.” Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 2776 (2004)(Scalia, J., concurring). In other words, he considered “activist” justices who found new “rights” out of thin air or who gave the executive branch more authority than intended by the U.S. Constitution to be overstepping their constitutional authority.
His opinions are brilliant, interesting, and opposed by progressives as contrary to how they think the U.S. Constitution should be contorted to achieve a living, breathing document that only ends up meaning whatever favored ideas exist in today’s society. From the right to keep and bear arms to religious freedom to abortion, Justice Scalia’s opinions hold true to the fundamental philosophies upon which our country was founded. It is no wonder “progressives” eagerly and quickly mocked his death, although most of them have never read even one of his several hundred court opinions.
As for the right to keep and bear arms, Justice Scalia authored the Supreme Court’s decision for the single most important Second Amendment case in America’s history: District of Columbia v. Heller. The Heller decision preserved Americans’ right to keep and bear arms for self-defense purposes. It is the Second Amendment Supreme Court decision that defied progressive wishful thinking that handguns could be banned or that an American must have a military connection to exercise the right to keep and bear arms.
The problem with the Heller opinion, however, is that it left the door open for courts to further “develop” limitations on the Second Amendment’s protection through future cases. The reason for this is that Justice Scalia’s opinion included the oft-repeated phrase that like other constitutional rights, the “Second Amendment right is not unlimited.” The Heller opinion provides a few examples of restrictions on the right to keep and bear arms that would be constitutional: restricting felons and the mentally ill from possessing firearms, restricting the right to carry concealed firearms, restricting firearms in “sensitive places” such as schools and government buildings, and restricting “dangerous or unusual” weapons. Since the Heller decision, activist judges across the country have used the “not unlimited” phrase to uphold many other types of anti-gun laws beyond Justice Scalia’s specific examples outlined in Heller. This leaves law-abiding gun dealers and gun owners afraid that through court decisions and the rapid creation of new legislation, they may become accidental felons and lose the intended protection of the Second Amendment.
The Supreme Court had an opportunity to rectify this slippery-slope in December 2015; but instead, the Supreme Court majority voted against Justice Scalia and Justice Thomas by refusing to protect Americans from the “assault weapons” bans passing with more frequency around the country. Friedman v. City of Highland Park. By refusing to accept the case for further briefing and hearing (“denied cert”), the Court effectively allowed an Illinois city to continue to deny residents the right to have many semi-automatic, “scary” rifles or large-capacity magazines. Of course, don’t forget that criminals can still obtain these firearms from other states, by smuggling them from other countries, or by illegally possessing them or making them in their garage, regardless of what the law says.
In the Friedman case, Justices Thomas and Scalia argued that the Supreme Court should hear the case to provide guidance on what types of firearms bans, if any, are allowed by the United States Constitution, rather than allowing such a law to simply remain in place. Justice Thomas and Justice Scalia argued that bans on common semi-automatic rifles, such as the AR-15, are unconstitutional because “Roughly five million Americans own AR-style semiautomatic rifles. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.” Their dissent makes clear that these types of “assault weapons” bans were not intended to fall within the “not unlimited” phrase of the Heller decision.
The future of our Constitution is now in perhaps the greatest jeopardy in America’s history. President Obama will no doubt relish this unexpected opportunity to appoint a new justice to join the other socialist Supreme Court justices: Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg.
To destroy the Second Amendment, these leftist justices do not need to overturn the Heller decision. Rather, the new court can simply uphold more restrictions than the few examples given by Justice Scalia in the Heller decision: “assault weapons” bans, bans on magazine capacities, registration or even confiscation of these “scary” firearms may all now be deemed constitutional if the new court chooses to accept a case giving them the opportunity to review the constitutionality of these restrictive laws, and affirmatively decides that such laws are constitutional. By affirmatively upholding these restrictive laws, the destruction of much of the Second Amendment’s protection will be effected.
It is not only the Second Amendment that is now in jeopardy, but our Constitution as a whole. Due to the cases currently before the Supreme Court, freedom of religion will only extend so far as the next same-sex marriage, request for contraception, or desired abortion. Illegal immigrants may remain under Obama’s policy. Laborers will continue to be forced to contribute hard-earned money to unions with whom they disagree. The death penalty will cease to exist. If the future Court does not hold true to the Constitution, then America will continue its path of destruction by creating a socialist, European-style government at an accelerated rate. The effect is immediate. Justice Scalia’s votes on cases that have not been publicly decided are void. Pending cases that may have adhered to the Constitution with Justice Scalia’s vote (such as the union contribution case) will now be stalled with a 4 to 4 vote.
President Obama may have a rare opportunity to avoid the GOP-controlled House and Senate this coming week (until February 23rd), where he may exercise his opportunity to make a recess appointment while both the House and Senate have adjourned. With this adjournment, the president could hold the power to appoint a new justice who will sway the Court’s majority decision in line with Obama’s anti-American way of thinking…taking the law away from the intent and plain meaning of the Constitution to which Justice Scalia fervently adhered.