Editorial Board

Scalia's Uncommon Sense on Guns

Justice Scalia's dissent seems a little crazy. Which is why it makes sense.
In his own way, he was right.

U.S. Supreme Court Justice Antonin Scalia has just slyly pointed out how crazy U.S. gun laws are. Scalia's typically scathing dissent in the court's 5-4 decision this week prohibiting straw buyers from purchasing guns, along with the majority's suspiciously reasonable opinion, exposes Congress's legislative failure.

The case stemmed from the arrest of Bruce Abramski, a former police officer who purchased a handgun for his uncle in another state, who had paid Abramski $400 for it. Because Abramski's uncle was not a felon, mentally ill or otherwise prohibited from owning a gun, Abramski argued that his purchase was legal -- even though he had signed a required federal form stating he was not buying the gun for someone else.

The court's majority ruled that if straw purchases were unrestricted, illegal gun trafficking would flourish, because it would be easier for people to buy guns for bad guys. The decision rested significantly on common sense -- always a dubious guide to the nation's gun laws.

So Scalia pounced. He essentially accused the majority of applying reason to a realm where a conflicted Congress goes to great lengths to subvert it. "The majority's purpose-based arguments describe a statute Congress reasonably might have written," Scalia stated, "but not the statute it wrote."

Scalia cited three instances in which the law allows people to buy a gun for someone else. Abramski could have purchased a gun and given it to his uncle as a gift, for example, or sold it to his uncle. He could even have raffled it as a prize.

None of those actions is prohibited. None would require a background check of the person who ultimately obtained the gun. Yet all are wholly irrational if the purpose of gun laws is to keep guns away from dangerous or reckless people.

The majority decision, written by Justice Elena Kagan, warned that Congress's law regulating the purchase of guns would be rendered meaningless if straw purchases were allowed. Scalia countered that it would be "every bit as meaningless in the scenarios just described."

Indeed, it would -- and, to some degree, is. When the law is an ass, its interpretation becomes especially problematic. Scalia's dissent is a recognition, even a celebration, of that. The specific prohibition on straw purchases contains loopholes so vast they raise existential questions. Why, Scalia pondered, "is the majority convinced that a statute with so many admitted loopholes does not contain this particular loophole?"

In a partisan and polarized Supreme Court, justices are constantly tempted to extend their personal politics into the law. The majority ruling on straw purchases may be perfectly sensible. It might even prevent a murder one day. But Scalia was on to something when he railed against "the false imperative to make the statute as effective as possible, rather than as effective as the language indicates Congress desired."

By buttressing the law, and taking a stand against gun trafficking, the court compensated for the incompetence and cowardice of a Congress that places the desires of the gun lobby before public safety. It may well be defensible as jurisprudence. But as a way to make sensible gun policy, it's hardly ideal.