The unanimously decided Miller decision, however, contains three passages that present an obstacle to this viewpoint. We'll cite them again (we've added numbers, but we're quoting a continuous passage from the opinion):
(1) In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
(2) Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense
(3) The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress
Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
Stevens' dissent concludes, based on these passages, that Miller "protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature's power to regulate the nonmilitary use and ownership of weapons." For reasons we'll explain below, we would agree that this is the best reading of Miller.
Scalia could overrule Miller - indeed, he includes a long passage explaining that Miller was inadequately argued, briefed, and written. But he doesn't do this. He could use the "D" word to explain away the troublesome language. But Scalia nowhere says that anything in Miller was dicta that should not be followed. To the contrary, Scalia's concludes "that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment."
So how does Scalia address Miller? After quoting (some) of Miller, here's how he starts:
This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia"). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen.
He's a slick fellow, that Scalia. He knows that Stevens reads Miller to protect "the right to keep and bear arms for certain military purposes," but not the right to keep arms for non-military purposes (indeed, he quotes the same language from the dissent that we included above). But he quickly restates the issue as something else: whether the Court in Miller "believed that the Second Amendment protects only those serving in the militia." These are not quite the same thing.
For one thing, Scalia's point doesn't work with Stevens' actual argument. If the Supreme Court in Miller believed that the 2nd amendment only protected the right to bear arms for "certain military purposes," why would it be "odd" for them to note that sawed-off shotguns are not "ordinary military equipment" or that their use could not "contribute to the common defense"? The point is that sawed-off shotguns are never appropriate for "military purposes,"and Congress can thus categorically ban them without worrying about the 2nd amendment. To our eyes, this is perfectly consistent with Stevens' view of the case.
But notice what else Scalia is doing. He says that Miller is only about the "character of the weapon" involved. That may be true of passage (2) from Miller, quoted above. But look at the preceding sentence - passage (1) above. That sentence states that the "possession or use" of the weapon must have "some reasonable relationship to the preservation or efficiency of a well regulated militia" for the 2nd amendment to be implicated. This is a much broader statement - a statement that is very difficult to reconcile with Scalia's preferred view of the 2nd amendment. So what does Scalia do? He changes it!
This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia")
Scalia quotes from passage (1), but says that the "reasonable relationship" to militias required by Miller concerns only the arms themselves. This is plainly not what that passage said. The first passage from Miller said that the "possession or use" of a weapon (and not just the weapon itself) must be related to the preservation or efficiency of a militia. (Again - in Miller, it was not necessary to discuss the defendant's "possession or use" of the firearm, because the court concluded that a sawed-off shotgun could never be possessed or used for militia purposes.)
We're constantly told how brilliant and meticulous Scalia is - and for that reason, we find it hard to believe that this misquote was a mistake or an oversight. No, it would appear that Scalia intentionally changed a passage in Miller - a passage that does not support his reading of the 2nd amendment.
WHAT ABOUT THAT THIRD PASSAGE?: Scalia quotes the first two passages of Miller cited above (indeed, he quotes the first passage accurately - before he intentionally misquotes it later in his opinion). "Beyond that," he concludes, "the opinion provided no explanation of the content of the [second amendment] right."
We suppose that statement is technically accurate. But what about the last sentence in the third passage from Miller:
With obvious purpose to assure the continuation and render possible the
effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
This passage may not explain the content of the 2nd amendment right, but it certainly explains how that content should be determined. The Court should interpret and apply the 2nd amendment to further its "obvious purpose" - to assure the continuation and effectiveness of the militia forces.
We'll assume that Mr. Heller had good reasons for want to possess firearms in his home - but we're hard pressed to see how his possession of a gun would ensure the continuation and effectiveness of any militia. As such, this passage presents a problem for Scalia.
How does he deal with this passage? Simple! He "disappears"it from his opinion! If you don't cite or acknowledge it, you don't have to deal with it!
IT BEARS REPEATING: We're inclined to believe that Scalia reached the correct result in Heller. As a Supreme Court justice, Scalia does not have to follow Miller - he can overrule it, or distinguish certain language as dicta. Scalia, however, does neither. Instead, he (1) misrepresents the dissent's argument; (2) changes one portion of Miller that he doesn't like, and (3) completely ignores another.
NEXT: Scalia does acknowledge that Miller at least allows Congress to ban the ownership of certain types of firearms. This concession by itself, however, causes problems with his analysis. How does Scalia deal with these problems? HINT: more slickness is involved.