Justice Scalia, Turkeys, and the Second Amendment

“Have you ever heard a turkey gobble?” Justice Scalia asked me during a visit to his chambers. “It’s a very strange sound, like a wooden rattle. [You] hear that far away and then make sounds like a hen to induce [the turkey] to come closer and closer. Finally, he sticks his head over a log, and you have to take your shot, or else you’ve lost him. Turkeys are very wily creatures. They have superb eye-sight and they’re very cautious. You get one shot. If you miss, the whole day’s ruined.”

In anticipation of  tomorrow’s arguments in the Supreme Court’s new Second Amendment case, it seems fitting to recall how Scalia, author of the Court’s 2008 Second Amendment case, explains his love of hunting: “It gets me outside of the Beltway, gets me into the woods, far away from all this stuff… [Hunting] gives you an objective for … getting there in darkness and watching the woods gradually lighten up, or being knee deep in cold water in the marshes and watching the rosy sunrise. It’s wonderful.”

Justice Scalia took a leading role in District of Columbia v. Heller, which established for the first time an individual right to bear arms. Yet, another piece of Scalia’s writing has also drawn attention on this second round of the Second Amendment. In his commentary in the 1997 book A Matter of Interpretation, edited by Amy Gutmann, Scalia included in a footnote about the Second Amendment: “Of course, properly understood, it is no limitation upon arms control by the states.”

And, of course, that goes right to the question in the case to be argued Tuesday, McDonald v. City of Chicago: whether the new right to keep guns in the home for self-defense extends to states, or applies only to regulation by the U.S. government and its enclaves, such as Washington, D.C., whose handgun ban was struck down in 2008. (For an overview of the new case, see my preview story here. For an article highlighting Scalia’s 1997 comment about whether the Second Amendment is incorporated against the states, see this story by Jess Bravin in the Wall Street Journal.)

In Scalia’s commentary of more than a decade ago, his references to the Second Amendment rested on where lower U.S. courts were at the time. Judges largely considered the right to bear arms to cover state militia, such as the National Guard, not individuals. So Scalia also wrote in his 1997 commentary, “[W]e value the right to bear arms less than did the Founders (who thought the right to self-defense to be absolutely fundamental), and there will be few tears shed if and when the Second Amendment is held to guarantee nothing more than the state National Guard.”

But that never happened. Five conservative justices, led by Scalia, held that the Second Amendment right covered individuals seeking to protect themselves in their homes. Because of that ruling in Heller, I believe that it is now unlikely that Justice Scalia will hew to the view that the Second Amendment is “no limitation” on the states. Scalia is only becoming more influential on this Court. I doubt he would pass up – with this new guns case — another good shot.