February 13, 2026 marks ten years since the death of Justice Antonin Gregory Scalia. For those of us in the Second Amendment community, his passing carried particular weight, because no single jurist did more to establish that the Amendment protects an individual right to keep and bear arms. His majority opinion in District of Columbia v. Heller, 554 U.S. 570 (2008), is the foundational modern Second Amendment precedent and the template for what originalist judging looks like in practice.
On this anniversary, I want to share something rarely heard: Justice Scalia reading the Heller bench announcement from the Supreme Court itself on June 26, 2008. His actual voice. History.
What Originalism Actually Means
Originalism is not a political preference. It is a discipline. When you interpret a constitution, a statute, or even a contract, the right question is: what did these words mean to the people who wrote and ratified them? Not to you. Not to me. Not to a judge sitting on the bench in 2026. To the founders who debated those words in the 18th century.
Scalia spent his career — as a law professor at the University of Chicago, as a judge on the D.C. Circuit, and ultimately as an Associate Justice of the Supreme Court — teaching generations of lawyers that the alternative to originalism is simply letting judges make it up as they go. That is not interpretation. That is legislation from the bench.
Heller is his masterwork. Listening to him read it aloud is a clinic in originalist reasoning.
The Operative Clause and the Pre-Existing Right
In the bench announcement, Scalia walked through the constitutional text with precision. The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The confusion stems from the prologue. Some read that militia language as limiting the operative clause — they are wrong. It was a settled principle of interpretation in 1791 that a prologue cannot limit the scope of the operative text.
Scalia then hammered the historical record. The phrase “keep and bear arms” was examined in contemporaneous sources and found to carry no exclusively military connotation. More telling still, the Second Amendment was universally understood to incorporate a pre-existing right of Englishmen — the individual right codified in the Bill of Rights 1689 (1 Will. & Mar. sess. 2, c. 2) after the Stuart kings had disarmed their opponents and relied on a standing army and a select militia to entrench their power. That is why the text says the right “shall not be infringed” — not “is hereby created,” but shall not be infringed. The right already existed.
The Historical Record: Tucker, Story, and Cooley
The opinion examined every serious source from the Founding era through the 19th century. Scholars — including St. George Tucker, Justice Joseph Story, and Thomas M. Cooley — all interpreted the Second Amendment as a personal right unconnected to militia service. Adjudicated cases reached the same conclusion. Congressional legislation followed the same reading.
Scalia also pointed to Reconstruction-era evidence that I find particularly powerful. A Joint Congressional Report from 1866 documented that “armed parties are without proper authority engaged in seizing all firearms found in the hands of free men” in parts of South Carolina, calling it “a clear and direct violation of their personal rights as guaranteed by the Constitution.” The Freedmen’s Bureau Act of 1866, ch. 200, 14 Stat. 173 (July 16, 1866), secured “the constitutional right to bear arms” to all citizens “without respect to race or color or previous condition of slavery.” As Scalia put it with characteristic directness from the bench: “It was good to have a gun when the clansmen came.”
Miller Was Never the Comprehensive Ruling the Dissenters Claimed
The four dissenters — Justice John Paul Stevens (joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer, with Breyer also filing a separate dissent) — leaned heavily on United States v. Miller, 307 U.S. 174 (1939). Scalia demolished that reliance.
Miller upheld a conviction under the National Firearms Act for transporting an unregistered sawed-off shotgun. The court’s reasoning turned on the type of weapon, not on whether the defendants were militia members. Scalia’s observation is worth sitting with: if Miller had meant that the Second Amendment protects only militia service, the court would have simply noted that the defendants were not militiamen and stopped there. Instead, it examined the weapon’s relationship to militia use — an analysis that only makes sense if the right is individual. Miller stands for the proposition that the Second Amendment extends only to certain types of weapons — nothing more.
Scalia also noted that Miller was procedurally compromised: the respondent made no appearance, filed no brief, and presented no argument. The government spoke alone. That is no basis for a definitive interpretation of the Second Amendment.
The Holding and Its Limits
The District of Columbia’s handgun ban and its trigger-lock requirement both violate the Second Amendment. The ban struck at an entire class of arms that Americans overwhelmingly choose for self-defense. The trigger-lock requirement made it impossible to use a firearm for the core lawful purpose of self-defense in the home.
Scalia was clear that the right is not unlimited. Heller does not call into question longstanding prohibitions on felons and the mentally ill, laws against carrying in sensitive places, or conditions on commercial sale. But the absolute ban on the most common defensive firearm in the home fails under any standard of constitutional scrutiny.
The final line from the bench announcement is one I keep coming back to: “What is not debatable is that it is not the role of this court to pronounce the Second Amendment extinct.”
That is as true today as it was on June 26, 2008. Happy to have had Justice Scalia on the court when it mattered most.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.