America’s Gun Pandemic: How “Originalists” Failed The Republic

Last Monday, August 28, 2023, there was yet another incident of gun violence in the US. This time, a faculty member at the University of North Carolina at Chapel Hill was shot dead on campus. A graduate student has been charged for the murder. This is yet another reminder of how unregulated guns continue to impact American society.

 While some states have made decent attempts at regulating guns, the posturing of the US Supreme Court compounds the problem. Two consequential regulations failed to survive judicial intervention in District of Columbia v Heller (2008) and New York State Rifle & Pistol Association, Inc., v. Bruen (2022). The Supreme Court declared the District of Columbia regulation requiring persons to obtain registration certificates for handguns and the New York State regulation of public carry of handguns unconstitutional on grounds that they conflict with the Second Amendment to the Constitution of the United States (the “Constitution”) which provides for the right to “keep and bear arms”.

 The reasoning of the Court in Heller (written by Justice Scalia) and Bruen (written by Justice Thomas) is troubling, considering the significant public interest or public policy justifications for the regulatory attempts, in my view.

 First, Justice Scalia’s “originalist” thinking in Heller seems subjective and offers no objective test with which to approach the issue. In his view, the rationale for the Second Amendment stems from the concerns of Antifederalists that the Federal Government would disarm the people in order to disable the States citizens’ militia; enabling a politicized standing army or a select militia to rule. Hence, the Second Amendment was to deny Congress the power to curtain the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. While Justice Scalia relies exclusively on history in his analysis, he ignores the fact that history is no effective barometer with which to assess the right to keep and use guns in the context of modern-day circumstances. None of the historical concerns that informed the framers’ thinking on the Second Amendment are present in modern day America.

 Secondly, Constitutions all over the world containing elaborate Bills of Rights recognize the power of the State to restrict certain rights where the state can show sound public interest or public policy justification. Of course, the state’s power to restrict rights is not absolute, just as no right is. Even the right to life is restrictable in modern constitutional democracies. Therefore, where there is a conflict between an individual right (such as the right to “keep and bear arms”) and a larger public interest, the Court must have an objective test for doing a necessary balancing act. The “originalist” Justice Scalia fails to do any such balancing act and relies exclusively on history; an inadequate and often subjective tool.

 Curiously, we see Justice Scalia undertake a balancing act in Vernonia School District v Acton (1995) when a Student Athlete Drug Policy (the “policy”) which authorizes random urinalysis drug testing of students is challenged on constitutional grounds; that it conflicts with, amongst others, the Fourth Amendment which prohibits unreasonable searches and seizures. Justice Scalia gives judicial blessing to the policy. In the words of the Court, “The Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as “legitimate’”. The school had a sound public policy justification for the random tests: to address a drug problem amongst students.

 Given the facts and circumstances of Vernonia, Justice Scalia’s reasoning was persuasive. However, a comparative analysis of Scalia’s opinions in Vernonia and Heller—both involving individual rights (privacy and the right to “keep and bear arms”) shows a certain lack of consistency in his judicial approach. In Vernonia, he undertakes a balancing act, and rightly so. In Heller, he relies on history.

Decided earlier in time, Justice Thomas dwells on Justice Scalia’s “originalist” thinking in Heller to inform the Court’s opinion in Bruen, even though Bruen posed a more nuanced question concerning the right of a citizen to carry a gun in public.

Of course, at the time of deciding Heller in 2008, Justice Scalia was fully aware that gun violence was a “serious” problem in the US—a “pandemic” even, to borrow his words in Vernonia. But Scalia concluded “…it is not the role of the Court to pronounce the Second Amendment extinct”. Heller and Bruen still leave many questions unanswered about the scope of state regulation of guns that is allowable under the Constitution. However, these consequential precedents would predictably inform the Court’s decisions in cases to come, however narrowly the legal questions are framed.

In his dissenting opinion in Bruen, Justice Breyer sets out the bare facts: “In 2017, there were an estimated 393.3 civilian-held firearms in the United States, or about 120 firearms per 100 people. That is more guns per capita than in any other country in the world”. “…in 2020, an average of about 124 people died from gun violence everyday”.

Of what use is constitutional design if it cannot be leveraged to address a major national pandemic?

The writer is a lawyer and a Master of Laws (LLM) candidate at Duke University School of Law.



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