Former Minn. Supreme Court justice: Reverse faulty Heller gun decision

Second Amendment


Minnesotans have an opportunity to reclaim part of our civil society by making us safer and less fearful, especially with respect to our children. A public safety bill before the Legislature contains a few modest provisions regulating access to guns. If enacted into law, these provisions can help to turn the corner on gun violence by restoring some semblance of common sense to how we deal with guns.

Readers inclined to dismiss this article on the grounds that it is just the thinking of another a myopic, anti-gun advocate are wrong and should bear with me. 

I am a farm kid who grew up in a family where hunting was part of our way of life. At age 12, my father gave me a 16-gauge shotgun that I still have. It was my favorite Christmas present ever. 

I cherish memories of taking a duck boat up Purgatory Creek to hunt ducks, and experiencing the joy of hunting pheasants with my father. In the fall, pheasant and venison were staples in our family diet.   

It is with these fond memories in mind that I propose Minnesota should take some modest steps to regulate the possession and use of guns.   

Opponents argue that this legislation violates the United States Constitution, arguing that individual gun rights are protected by the Constitution.   

History, legal precedent and a careful reading of the Constitution, however, prove that they are wrong.  

In District of Columbia v. Heller, in a decision written by the late Justice Antonin Scalia, a divided United States Supreme Court turned its back on over two centuries of American jurisprudence.  

A thoughtful “originalist” understands that under the Constitution, every landowning American male is guaranteed the right to possess a front loading musket and a flint lock pistol as long as he agrees to serve in a well-regulated militia and pledges to put down a slave rebellion. While this statement may be facetious, this interpretation is closer to the original intent of the Second Amendment as it was proposed by Virginia and other southern states than it is to Scalia’s holding in Heller. 

In four case holdings on the Second Amendment that preceded Heller, the court held that the right to bear arms was not an individual right, but rather a right dependent on service in a well-regulated militia.  

Only after Scalia wrote Heller, was the Second Amendment deemed to guarantee an individual right to bear arms. Unfortunately, this view is becoming engrained in the law. 

Having met with Scalia on several occasions and edited his last book, “Reading the Law,” I believe he went to his grave believing that Heller was his magnum opus with respect to the Second Amendment.   

But Heller falls far short of being worthy of such a label. In Heller, Scalia sought to find an absolute right of every citizen to bear arms in the original language of the Constitution. He failed in his efforts. Rather, Heller is a convoluted and confusing hodgepodge of legal sophistry that is a compilation of the mid-to-late 20th century rhetoric espoused by the National Rifle Association.  

Pulitzer Prize winning author Joseph J. Ellis, in his book “American Dialogue, the Founders and Us,” wrote that “Heller is so difficult to follow, (it) indeed seems almost designed to create a maze of labyrinth pathways that crisscross, then double back on one another, like a road map through Alice in Wonderland.”   

The drafters intended to grant a limited right to all male, landowning Americans to own a musket and pistol. There is no place in the Second Amendment that guarantees a person’s right to own and openly carry a weapon like an AR-15, which in seconds can deliver a hail of destructive bullets capable of shredding the human body — most monstrously, that of an innocent child. Such a weapon did just that to the body of 10-year-old Mattie Rodriguez, whose body could only be identified by the green tennis shoes she wore to school that fateful day in Uvalde, Texas.   

The AR-15 and similar weapons are weapons of war, not something to be kept in one’s home or carried about in the community. 

That right of an individual citizen to possess such weapons does not exist in our Constitution, especially with respect to those deemed dangerous or an 18-year-old whose mind has yet to fully develop.

To some Scalia was a brilliant jurist; but when dealing with the original intent of the Constitution he was often dogmatic and myopic. He may have recognized some of Heller’s deficiencies after several respected legal scholars debunked and criticized its legal reasoning.  

At an appearance at the University of Minnesota Law School, his response to a law student’s well articulated question about Heller was to derisively turn his back to the student as he curtly said, “Just live with it.”   

The truth is that we do not have to live with the shallow and deficient legal analysis in Heller.  Much less do we have to accept the mantra of the current court, when in unison they say “trust us.” They have shown us that we cannot trust them to do the right thing.

The current Supreme Court, in New York State Rifle and Pistol Association v. Bruen, recently drew upon Scalia’s faulty reasoning in Heller and further expanded “gun rights” in America.  

This unfortunate and unwise scenario supports former Minnesota law school professor Daniel Farber’s theory about how the law develops: “The dead hand of the architect.” Farber asserts that much like how a long deceased architect’s building design drives how a building is used in perpetuity, the opinions and reasoning of long gone justices can drive the law.

It is time that we remove Scalia’s dead hand from the law. The best way to do this is for states like Minnesota to enact reasonable gun legislation designed to protect its citizens. 

Let us all hope the Legislature has the wisdom and courage to do so. We do not need any more dead children like Mattie Rodriguez to tell us why this is necessary if we want to live in a safer, less fearful society.



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