United States Supreme Court Associate Justice Antonin Scalia, author of the Court’s landmark Second Amendment decision Heller v. District of Columbia, died on February 13, 2016, at age 79. Justice Scalia was found dead of apparent natural causes at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa in West Texas. According to the San Antonio Express-News, Scalia arrived at the ranch on February 12 and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found his body. We extend our condolences to the family.
Scalia was nominated to the U.S. Supreme Court in 1986 by President Ronald Reagan. His passing is of particular concern to gun owners, whose inalienable human rights to self-defense were codified, and not established, in the 2nd Amendment. In the landmark Heller decision, Scalia noted that the 2nd Amendment protected existing rights to own and carry firearms that every person had, and has, as individuals, and the right to keep and bear arms is not dependent an individual’s participation in a “militia” or any other body.
Sen. Ted Cruz (R-Texas), who authored the amicus brief for the states in the Heller decision, said in a statement, “As liberals and conservatives alike would agree, through his powerful and persuasive opinions, Justice Scalia fundamentally changed how courts interpret the Constitution and statutes, returning the focus to the original meaning of the text after decades of judicial activism. And he authored some of the most important decisions ever, including those which recognized our fundamental right under the Second Amendment to keep and bear arms….”
It is sad and worrisome, but nonetheless true, that four other justices did not and do not agree with Scalia’s decision in the Heller case. So his passing puts that decision, and individual gun rights, at risk again. Other than in McDonald, the Supreme Court has chosen not to harden the effects of Heller in many additional decisions. I do not mean to sound flippant or alarmist when I say that all our gains in gun rights since Heller are now at risk. Because ties in Supreme Court decisions result in the decisions from lower appeals courts being affirmed, it’s now possible that an anti-gun-rights case from, say, the Ninth Circuit gets upheld because Scalia’s fifth vote to overturn is no longer there.