Scalia and the natural law

An interesting article here (scalia-and-lure-of-natural-law1) from First Things on the recent 2nd Amendment decision.  It suggests that – gasp – Scalia made the most reasonable interpretation by appealing to something like the ‘natural law’.

[Full disclosure: While not being ‘anti-gun’, I am hardly ‘pro-gun’.  I do not own a gun, and will confess that I see little reason for why anyone would need one for self-defense or why anyone would need a handgun or an automatic weapon (since hunting appears to me to be the only good use for guns).  Guns seem to me to bring more danger than safety to situations.  But I think Scalia was right to avoid utilitarian social engineering and stick to the principles at hand.]

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About Kleiner

Associate Vice Provost and Assistant Professor of Philosophy at Utah State University. I teach across the curriculum, but am most interested in continental philosophy, ancient and medieval philosophy as well as Catholic thought, all of which might be summed up as an interest in the ressourcement tradition (returning in order to make progress). I also enjoy spending time thinking about liberal education and its ends.

15 thoughts on “Scalia and the natural law

  1. Huenemann

    I think the author is reaching. It sounds to me that when Scalia says he’s following the “natural meaning” of the language of the amendment, he’s only claiming: here’s the way to read it that does the least violence to the common, ordinary understanding of the terms. That’s too weak to hook up with natural law, in my view.

    But I also think he’s wrong. The natural understanding of the amendment is that the people need effective means to defend themselves against the gov’t in case the gov’t becomes abusive. In the old days, a bunch of muskets would have been enough. These days, we would need rocket-propelled grenade launchers and maybe even some nukes. So are the gun proponents really willing to go with the natural meanings of the terms here?


  2. Kleiner Post author

    I think the point is that he had to move beyond the terms of the Constitution itself to show that the right to bear arms is not to “be swallowed up” by the preamble that refers to militia defenses against a tyrannical govt. In so doing he did not appeal to ‘positive law’ or statute, but rather to a ‘natural right’ to protect oneself against danger. The danger of a tryannical govt, the preamble here, is actually then a subset of the latter and broader category of protecting oneself against unjustified assaults (here articulated in terms of ‘bearing arms’). This leans toward a natural law that the positive law must reflect as preceding it, some ‘natural right’ to protect oneself against danger (Scalia refers to Ginsburg of all people on that point).

    Second point (setting aside the question of whether originalism is a good interpretative move for now): Surely you would agree that no one, at the time of the writing of the 2nd Amendment, would have understood it to mean that they could only bear arms in defense against a tyrannical govt (not for hunting or other sorts of self-protection).

    By the way, I quite agree that the militia defense against a tyrannical govt is now mute. Back then ordinary citizens might have been able to put forth some kind of defense. In our age of tanks, missiles, etc, that would be impossible. And, as I noted before, I actually think that having a gun in the house is a questionable way of protecting oneself against other dangers, and you might actually be endangering yourself.


  3. Huenemann

    You wrote, “Surely you would agree that no one, at the time of the writing of the 2nd Amendment, would have understood it to mean that they could only bear arms in defense against a tyrannical govt (not for hunting or other sorts of self-protection).”

    But I DON’T agree (and stop calling me Shirley!). The chief end in drafting this amendment was to make sure the people could defend themselves against a tyrannical gov’t. This is why, at the same time, the framers did not want the Feds to have a standing army. (So much for that idea!) The bulk of the history of commentary on the 2nd amendment bears me out. The recent case, Heller, seems to me an absolute perversion of the original intent. Bush has succeeded in stacking the court in a disastrous direction.

    Here’s an overview of commentary on the 2nd:


  4. Kleiner Post author

    You mean to suggest that early Americans would have understood this to mean that they could ONLY bear firearms for the sake of defense against a tyrannical government? Seriously? Let’s put a different spin on this: do you think a law passed in, say, 1804, banning the possession of firearms for any reason other than militia use would have been found constitutional at the time?

    This does not mean that the ‘chief end’ of the 2nd Amendment is not, as you say, to make sure people can defend themselves against a tyrannical govt. I rather suspect that was the chief end (though perhaps not the sole end). The enumerated rights in the Constitution do not exhaust what the founders took to be, on the article’s view, the ‘natural rights’ of man. The article suggests that, for Scalia, the enumerated point about militias (the preamble) is not meant to delimit the natural right to the positive law, but rather is itself a subset of a broader natural right for self-protection (which, the Court has just decided, includes the right of non-militia individuals to bear arms).

    Speaking as someone who, again, really does not care that much about this issue, this seems to me to be a pretty plausible story to tell.


  5. Huenemann

    I don’t know about 1804, but how about 1875? That’s when THE SUPREME COURT ITSELF (in US vs. Cruikshank) ruled that because “[t]he Second Amendment…has no other effect than to restrict the powers of the national government…”, the federal government may not punish individuals for depriving citizens of their right to bear arms. In other words, if Alabama said “no non-militia use of firearms,” the Supreme Court would say, “that’s okey-dokey so far as the second amendment goes!”


  6. Huenemann

    That reading of Cruikshank is misleading (blame it on Wikipedia). Here’s the text of the relevant part of the court’s ruling:

    [The right that was alleged to have been violated] “is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the ‘powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,’ ‘not surrendered or restrained’ by the Constituton of the United States.”

    So, in other words, the court in 1875 simply thought that the 2nd amendment curtailed *Congress* from limiting people’s right to bear arms, for whatever reason; if the state or the sheriff or the grocer wanted to limit that right, that would be a separate issue (the 2nd amendment wouldn’t apply). Still, with Heller, the Court is reversing itself, and saying that anybody who tells you you can’t have a gun, whether they are Congress or the grocer, is violating the second.


  7. Doug

    I would also disagree with Scalia on this issue. I realize that many people appeal to some sort of so-called “natural law” or even privacy laws in order to maintain that a regular citizen has been given the right to bear arms in this country. However, Scalia forgets to read the rest of the Constitution in his majority opinion. Please let me explain what I mean here. The 2nd amendment states:

    A well regulated militia being necessary to the security of a free state, (note the comma, not period here) the right to keep and bear arms shall not be infringed.

    Now everyone knows this amendment (except the NRA that forgets the first part). However, most forget that that in Article 1 Section 8 (the part of the constitution that outlines Congressional power) of the US Constituion it reads:

    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;

    In other words, Congress is the only government body that has the authority to allow citizens to be armed or not. It is Congress that maintains the right to arm, train, and decide who can and cannot be in the militia. There is nothing in the constitution that outlines citizens to have the right to hunt (especially in this day in age when it is no longer necessary given the nearest Smiths or Walmart).

    Scalia was appealing to a “natural law” made up in his disgruntled mind. It is not even appropriate for ANY Judicial Branch to decide who can or cannot have guns. Owning or possessing guns is not a guaranteed Constitutional right UNLESS Congress says it is.

    Scalia’s argument should have been that the District of Columbia did not have the right to restrict residents from owning hand guns because Congress must approve the law first. If it was approved through Congress, then it would have been a Constitutional Law.

    I realize I am preaching to the choir for the most part here, but I would advise anyone that believes that owning hand guns or any other type of weapon is a Constitutional right. I believe the Constituion is very clear as to who can own a weapon, purchase the weapon, and what the weapon can be used for.

    I would just say its my just my opinion, but I (unlike Scalia) read the Constitution in its entirety.


  8. Pingback: SCOTUS review « Huenemanniac

  9. Mike

    The best part about the decision is that now that our gun rights are guaranteed, I feel completely safe. That being the case, I no longer see the need for the TSA, department of Homeland security or any other Orwellian governmental organizations. As far as I’m concerned, the government can now put that energy back into more standard hit-the-streets style intelligence gathering instead of the civil-rights-violating style intelligence gathering. I feel so great now I don’t see a need for a national ID card, Guantanamo, or warrantless wiretapping. Now that I can pack heat again, I’m feeling like I don’t really need that added feeling of safety that comes from taking off my clothes for strangers when traveling from state to state.

    If we really need the feeling of safety, let’s get it wild west style instead of depending on big daddy government for it.

    Who’s with me?

    I’m with the majority on this case and the habeas/gitmo case but I like Doug’s post. I haven’t read Scalia’s opinion in this one but I read his dissent in the other one. Since Scalia’s principles find no way to extend to what I’d consider basic human rights in the habeas/gitmo case I find him pretty laughable as a model of anything. Not that the justices can use the DofI as precedent but are all men created equal or aren’t they? And if you read the federalist papers, they were very worried about times like these where any branch of government is going unchecked and they weren’t too fond of the possibility of a long standing two party system. These are exactly the sorts of things they were worried about. I think they even mention somewhere terrorism as a guise. A guy who works with me keeps preaching the federalist papers so I guess this is my repreaching.


  10. Mike

    n1: We should get armbands.
    n2: Armbands? We don’t need armbands, we’re Übermensch!
    n1: No, we’re not, we’re Argonauts! Are you saying our armbands should have a Ü on them?
    n2: Übermensch! And no armbands!

    *digress into full Monty Python sketch*


  11. Huenemann

    How about t-shirts with a big bright “Ü” on them in a yellow circle? (Imagine the confusion with smiley faces!)



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