Perhaps the most significant and long-lasting legacy of Donald Trump’s presidency will be his appointments to the United States Supreme Court. Supporters of candidate Trump expressed excitement over the opportunity for a Republican President to appoint a jurist who will be an originalist along the lines of the late Justice Antonin Scalia.
Justice Scalia has been touted as a “textualist” when it comes to interpreting the Constitution, meaning, he looked to the “plain words” of the document when determining what it means. However, as I pointed out in another article, his opinion in District of Columbia v. Heller, Scalia shows how textualism can result in an improper interpretation of the Constitution.
In Heller, Scalia properly held that the District of Columbia’s restrictive firearms laws were unconstitutional. However, his “textual” analysis went astray when he decided to explain exactly what the Second Amendment meant; in so doing, he actually ignored the text of the amendment and concluded that its “protections” by implication were limited to handguns, due to their popularity and ease of use for self-defense. His explanation of what “shall not be infringed” resulted in the phrase only protecting a limited category of firearms, leaving the door open for others to be infringed upon.
Two years later, in 2010, firearms laws once again found their way to the United States Supreme Court in the case McDonald v. City of Chicago, (561 U. S. 742). This time, however, city laws were the source of the controversy as opposed to the federal government, or the District of Columbia, acting under federal authority.
At issue in McDonald were laws passed by the city of Chicago and a suburb called Oak Park which effectively banned handgun possession by private citizens. Petitioners sued in federal court, seeking a declaration that the ban, along with other related ordinances, rendered them vulnerable to criminals. They asserted that the ban and related city ordinances were in violation of the Second and Fourteenth Amendments.
The district court upheld the constitutionality of the ban, noting that Heller had refrained from issuing any opinion as to whether the prohibitions in the Second Amendment applied to the states and asserting the court had the duty to follow precedent. For the Supreme Court to hold these local laws unconstitutional, the justices had to find a way to “incorporate” the Second Amendment to the states. This would essentially grant a federal veto over state laws, a proposition rejected outright during the Philadelphia Convention.