Justice Scalia is every conservative’s favorite member of the Supreme Court. Conservatives on and off the Court speak enthusiastically about complying with the text of governing law and engaging in “objective interpretive method,” so that courts are not in the business of imposing their preferred politics on the Constitution and federal laws they apply. So the question raised by a recent gun control case, Abramski v. United States, 12-1493 (June 16, 2014), is why Justice Scalia and the other three conservatives on the Court voted to overrule an appellate opinion adopting the view of a majority of lower courts that where straw buyers of guns represent themselves as the actual gun buyer they violate the federal statute prohibiting knowingly making false material statements related to lawfulness of the gun sale. Abramski contended, and the dissent by Justice Scalia agreed, that if the person at the counter of the firearms store is eligible to own a gun, the statute authorizes the sale. Id. at 6. This view was thus that, so long as the person at the counter was legally eligible to own a gun, the sale is legal even if the person the gun was purchased for could not himself buy or own a gun. Id. at 7. The majority noted that this “ambitious argument,” which assumes that it does not matter if the person for whom it was purchased is not eligible to own a gun, had not been accepted by any previous court. Id.
The majority opinion read the statute as treating the “person” who buys the firearm as the “ultimate recipient,” not the middle man who appears at the gun store and pays the dealer. Id. at 9. The majority saw its interpretive effort as the product of looking beyond an ambiguous word to the meaning that “produces a substantive effect that is compatible with the rest of the law.” Id. at 9 n. 6. If the statute were read according to Abramski’s advocacy, or the Scalia dissent, it would mean that a felon who was ineligible to buy or own a gun could enlist an intermediary to formally pay for the gun, and then collect the gun at the gun shop’s door. Id. at 10. Though the majority resists the dissent’s argument that it misanalyzes the text by adopting a “purpose-based argument,” dissent at 7, it does seem compelling that, under the dissent’s reading, “criminals could always use straw purchasers to evade the law.” Id. at 13. And ultimately the majority asserts that it only holds “consistent with [the statute’s] text, structure, and purpose, that using a straw does not enable evasion of the firearms law.” Id. at 15.
Though Justice Scalia clearly agreed with Abramski if the person at the counter could legally buy the firearm, it would not matter whether the “ultimate recipient” could legally purchase a firearm, his dissenting opinion chooses to emphasize that in this case both the person at the counter and the ultimate purchaser could legally buy the weapon. Dissent at 2. And it suddenly seemed crucial that “no provision” specifically prohibits an eligible person to buy a gun for another legally eligible person. Id. But the balance of his opinion clearly offers the more “ambitious” assertion. Even more crucial is that the language of the statute does not unequivocally define the “person” to whom the gun is sold as referring to the individual who is ultimately paying for the gun and for whom the person at the counter is acting. Id. at 3. Scalia analogizes giving one’s son money to pick up milk and eggs at the store, concluding that “no English speaker would say that the store sells the milk and eggs to me.” Id. at 4. But the majority contrasts the “milk and eggs” example with sending your brother to the Apple Store to buy an iPhone, followed by taking “immediate and sole possession of that device.” Majority at 9. If one asked the same question—who “purchased” the iPhone—“ordinary English” would not compel the conclusion that your brother did.
The question raised is whether Scalia’s dissent is driven by “ordinary English” or by an ideological preference for strictly construing gun control laws. Is this really “textualism,” or ideological “conservatism” at work in this interpretive act? Scalia’s argument is made more plausible because gun regulation is inevitably subject to compromise; and this enables the Justice to insist that the statute’s obvious purpose to generate more effective background checks on gun purchasers might be less dispositive because the statute itself does not require courts to treat purchasers at the counter as not the purchaser if they plan to give the gun away as a present; gift-givers, by statute, are not treated as the equivalent of “straw purchasers.” Yet the regulatory scheme might be more effective if “gifts” were not an available “loophole.” But even if the line between gift-givers and straw purchasers is a thin one, the statute is easily read to warrant the differing treatment. By contrast to this strict construction of the straw purchase provision, Justice Scalia is insistent on applying strict scrutiny rigorously in equal protection challenges to affirmative action programs. There neither the basically non-demanding text of the Fourteenth Amendment nor its limited “purpose” to secure the rights of emancipated, former slaves, affects his willingness to apply the Court’s precedent with rigor. But given the opportunity to strictly construe a gun regulation statute on behalf of arguments that have never been accepted by any court, Scalia’s textualism simply lends itself to a narrow meaning that will earn applause by the NRA.