By Daniel Colbert, ACLR Senior Blog Editor
“The Second Amendment therefore is, or rather, should be, an anachronism-"essentially an historic relic, something whose original purpose has disappeared." The need it was designed to fill no longer exists … That does not justify "read[ing] it out of the Constitution" and … I would not do so; but neither would I distort the Amendment’s original meaning, as the majority does, to ensure a prominent role for the Second Amendment in an era when its influence is far more pernicious than beneficial.” – Justice Antonin Scalia
Justice Scalia didn’t really say that, of course. But replace “Second Amendment” with “recess appointments clause,” and that passage is an accurate quote from Scalia’s concurrence in NLRB v. Noel Canning, No. 12-1281, 2014 WL 2882090, at *34 (June 26, 2014). This striking section of Scalia’s argument demonstrates the inconsistency of his “originalist” constitutional interpretation.
Scalia’s concurrence implies that when the Court considers the text of the Constitution, it should do so in light of not only the original purpose of the text, but also how the provision is used in the real world. Since the recess appointments clause is no longer used to cope with the Senate’s unavailability, but rather for the “ignoble [use] of enabling the President to circumvent the Senate's role in the appointment process,” id., Scalia would prefer to read the text narrowly.
Most non-originalists would agree that the actual effect of a particular reading of a text is relevant. The problem is that Scalia fails to consider contemporary contexts in other areas, such as Second Amendment cases. Changes in firearm technology and in the need for “a well regulated militia” make the Second Amendment at least somewhat anachronistic, but that anachronism doesn’t suggest a narrow reading to the Scalia of Heller, who insists “A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all.” District of Columbia v. Heller, 554 U.S. 570, 634 (2008).
Scalia’s originalism fails to be consistent because the original purpose and meaning of a text is always nebulous. Does the recess appointment clause exist to deal with the absence of the Senate from Washington, or to ensure the functioning of government? Does the Second Amendment promote national defense, or provide a personal right to own a firearm? Depending on his answers to those unanswerable questions, an originalist could come out on either side of Heller or Noel Canning.
Any text can be given a broad or a narrow reading. Scalia suggests (in Noel Canning, at least) that changing contexts and real-world practices should inform that choice. I agree. If only we could convince the guy that wrote Heller.