Scalia guns may be regulated

[Luger_carbine]

The headline could have read:

Scalia: "No right to privacy in the constitution"

or

Scalia: "Death penalty not cruel"

But that doesn't generate web hits and get people talking...

[Hook686]

Supreme Court Justice Antonin Scalia on Sunday renewed his criticism of Chief Justice John Roberts' reasoning in upholding President Barack Obama's 2010 healthcare law and also said the Constitution undoubtedly permits some gun control.

http://news.yahoo.com/justice-scalia...201206215.html

I also found it interesting that the judge acknowledged he had a political agenda during his tenure on the court:

"Of course, I would not like to be replaced by someone who immediately sets about undoing everything that I've tried to do for 25 years, 26 years, sure. I mean, I shouldn't have to tell you that. Unless you think I'm a fool."

It bothers me that a judge would boldly state that he tried to accomplishe an agenda rather than adjudicate strickly based upon rule of law.

It bothers me even more when a conservative justice indicates that he thinks the constitution allows for gun control.

When will this happen do you think ?

[BlueTrain]

Yeah, here we go again. People are interpreting the "well-regulated" part to mean "un-regulated."

That's called double-speak.

[JimPage]

Hook: I'm giving Scalia the benefit of believing that he is refering to his maintaining a strict interpretation of the Constitution, not a political agenda. We have seen some justices re-interpret or misinterpret the Constitution, and a different justice could well undo what Scalia tried to do by abiding by his conscience and devotion to the Constitution.

[spacecoast]

His clarification seems to be:

"I mean, obviously, the amendment does not apply to arms that cannot be hand-carried. It's to 'keep and bear' (arms). So, it doesn't apply to cannons. But I suppose there are handheld rocket launchers that can bring down airplanes that will have to be ... decided."

I guess if I had a tank in the shed or a tarp-covered howitzer or a heavy machine gun mounted in the back of my SUV I might be concerned about how Scalia would rule...

[JimPage]

BlueTrain: "Well regulated" at the time the Constitution was adopted referred to equipment not to "rules or laws."

[Shane Tuttle]

Threads merged starting at post #27...

[BPowderkeg]

why do we or any judge need to interpret, re-interpret or misinterpret the Constitution.., why can't it be read and understand the words as written ?

guns may be regulated ?

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.

is this word, "REGULATED" in the 2nd amendment what he may be referring to ??

that is my guess.., what say ya'll ??

[thallub]

It bothers me that a judge would boldly state that he tried to accomplishe an agenda rather than adjudicate strickly based upon rule of law.

i don't see any such indication in that statement.

[ohen cepel]

I don't get worried about this. He thinks they can be regulated, they are already.

[ScottRiqui]

why do we or any judge need to interpret, re-interpret or misinterpret the Constitution.., why can't it be read and understand the words as written ?

guns may be regulated ?

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.

is this word, "REGULATED" in the 2nd amendment what he may be referring to ??

that is my guess.., what say ya'll ??

The common meaning of the word "regulated" has changed since the Constitution was written. Used to be, "regulating" something simply meant ensuring that it operated as it was supposed to. In the case of a militia, "well-regulated" would mean that it has the men, supplies and training necessary to perform its function.

In short, "regulation" and "regulations" aren't the same thing.

[maestro pistolero]

http://www.examiner.com/article/scal...73839#f3ad11c5

One test the courts have employed in Heller vs DC and previous cases to decide what arms are protected is the 'common use' test.

It goes something like this: If an arm is contemporarily in common use, if it is a bearable arm, then it is presumptively protected by the second amendment.

This is important, because for the amendment to have it's intended effect. the arms that are owned and carried must be sufficient to counteract the arms that they are intended to oppose.

One traditionally lawful use of firearms is to defend against violent crime. Requiring citizens to carry arms that have inferior performance characteristics, with magazine capacity restrictions for example, would eviscerate the amendment for one of it's core purposes.

Highly trained police routinely exceed 10, 20 or even 30 rounds of ammunition subduing a single violent subject. Lethal encounters are often rapidly evolving, dynamic events where many shots may miss their mark. An assailant may have body armor or drugs on board which may delay his response to defensive gunfire.

A typical citizen will not have the advantages that a police officer has in terms of protective gear, radio backup, multiple force options, and years of experience.

In defending one's family, it is not reasonable expect a citizen to accomplish with ten rounds what a police officer cannot with all of his or her built-in advantages.

Frighteningly common home invasions usually involve multiple armed intruders. In such circumstances, having a restricted 10-round magazine can get innocent people killed.

Assault Weapons:
Except for the issue of magazine capacity, there is NO difference in the performance characteristics between semi-automatic rifles designed for hunting and those with a more military appearance.

The 5.56 NATO/.223 Remington rounds used in what are popularly dubbed 'assault rifles' are considered too inferior for humane deer hunting in many states.

That statement is not intended to underplay the lethality of any rifle round, but it is intended to debunk the false idea that military-style semi-automatic rifles are somehow overpowered and inappropriate for civilian use.

Indeed, the 5.56/.223 round is considered an urban defense round due to it's significant loss of lethality after penetrating building material. Liability conscious police agencies favor the AR15 rifles precisely for this attribute.

When the court cases finally come, the high court will look at these issues very carefully, not through the lens of media hype and inflammatory monikers like 'assault weapon'.

The Second Amendment serves many purposes. It protects hunting, self-defense, defense of community, it's intended as a final safeguard against any future tyrannical government, and it's emblematic of the fact that we are a self-governed people.

But it's only specifically enumerated purpose, announced in it's first clause, is to protect the ability of a state to raise a militia of citizens. These citizens would be expected to bring their own weapons that are in common use. In the US, the most popular and ubiquitous semi-automatic rifle by a vast margin, is the AR-15 with standard 20 and 30 round magazines. This is the civilian version of the military's M4/M16 rifle.

For the reasons I have stated here, this is and ought to remain the MOST protected arm in the land.

-Christopher J Hoffman
7/30/12

[BlueTrain]

No, I believe the "well-regulated" part was that the militia be under government control. Clearly! They didn't want private armies. Your opinion may differ but I don't want private armies, either.

[Don H]

Originally Posted by BPowderkeg

why do we or any judge need to interpret, re-interpret or misinterpret the Constitution.., why can't it be read and understand the words as written ?

Because the meanings of words and phrases change over time as a language evolves and as technological advances are made. For example, does the word "Arms" as used in the Second Amendment include all weapons used by the military and allow a person to possess biological and chemical weapons, among the more prosaic weapons such as firearms?

[ScottRiqui]

I would argue that coming fresh off a revolution of their own, the writers of the Constitution understood the importance of the citizenry having the means to resist a tyrannical government should the need arise. I don't think that aligns very well with the idea that "well regulated" was intended to mandate government control over the armed citizenry.

But, I'm no Constitutional scholar, and I'm always happy to hear others' opinions.

[Technosavant]

Originally Posted by BlueTrain

No, I believe the "well-regulated" part was that the militia be under government control.

What you believe is immaterial.

What matters is the language as was used and understood when the words were placed on paper. It's a standard method of document interpretation, especially of documents from eras before our own... first understand what they would have meant based on the vocabulary used and how it was understood at the time by the authors and recipients, and only after understanding that can our own interpretation of that document be formed. If we're just impressing our own beliefs and interpretations upon a document without that basic bit of research, then there's little point to the document at all... we'll just have it saying what we want anyway.

There's no need to turn to the "well regulated" phrase to establish the constitutionality of regulating firearms ownership- the other rights enumerated in the Bill of Rights are generally not understood as completely absolute. That is, the government can place certain restrictions on them, such as laws related to libel and slander in the exercise of free speech. Some types of speech are not considered protected by the first amendment. Likewise, some ownership of firearms is not considered protected by the Second Amendment. It seems to me that Scalia left the door open in his comments to this... there is much room for litigation to nail down EXACTLY what forms of ownership are unprotected. Very few people would choose to throw out all forms of regulation of firearms, but that does not mean that all forms of regulation of firearms will be welcomed.

While Scalia's exact words might raise our dander a bit, I really don't think he was saying anything we didn't know already.

[Frank Ettin]

Originally Posted by BPowderkeg

...why do we or any judge need to interpret, re-interpret or misinterpret the Constitution.., why can't it be read and understand the words as written ?...

Because courts interpret laws, including where applicable the Constitution, for the purposes of deciding disputes. There can be, and often is, a disagreement among parties to a dispute about what laws mean in the context of the dispute. And deciding disputes is what courts are there for.

So Mr. Heller objects to the District of Columbia not allowing him to have a handgun at home and the District of Columbia's implied threat to prosecute him if he does. So he contends that the law the District of Columbia would assert to put him in jail if he has a handgun at home is unenforceable because it's unconstitutional. The District of Columbia contends that the law is valid and enforceable because it does not violate rights protected for Mr. Heller by the Constitution.

That is a case of controversy within the province of the federal courts to resolve. And doing so will necessarily require interpretation and application of the Constitution.

Law (including the Constitution, which is, itself, law) does not exist in a vacuum. It exists in this, the real world, where it is used as a tool by which courts decide the outcome of disputes. Just as a musical score is just marks on paper until it is realized by the playing of it, the law derives its meaning from its application by the courts to real life matters.

And just who gave the courts the authority to thus interpret and apply the Constitution? Actually, the Founding Fathers did (Constitution of the United States, Article III, Sections 1 and 2):

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....

Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,...

The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute.

Or, as Chief Justice John Marshall wrote in the decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803):

....It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.....

Note also that many of the Founding Fathers (the delegates to the Constitutional Convention who signed the Constitution) were lawyers. They were familiar with English Common Law (the basis of out legal system) and that for a long time it had been customary for the courts, under the Common Law, to consider the validity of such matters as the Acts of Parliament and the actions of the Crown under the rather amorphous collection of statutes, court judgments, treaties, etc., that became understood in the Common Law to be the English Constitution. And thus there was Common Law precedent, as no doubt understood by the Founding Fathers, for the invalidation of a law as unconstitutional being within the scope of the exercise of judicial power. (And English cases continued to be cites by courts of the United States for many years after Independence.)

And while John Marshall may not have been a Founding Father, he wasn't at the Constitutional Convention, he should at least be entitled to be considered a founding uncle. He was a delegate to the Virginia Convention that would ratify or reject the Constitution and, together with James Madison and Edmund Randolf, led the fight for ratification.

[MLeake]

BlueTrain, several of the founders openly viewed the militias as defense against tyranny. They were not in favor of a strong central government, and wanted each state to have the ability to back up its disagreement with the central government with force, if necessary, to prevent a return to royalist rule or dictatorship.

Several of them openly stated that the people should never be forced to give up personal arms.

You seem to insist on applying modern interpretations of phrasing, over the meanings those phrases had at the time, according to the men who drafted them.

The problem we keep running into, though, is that the central government has grown stronger not through military means, but through granting itself more and more taxation powers, and holding states hostage to fiscal extortion.

And people seem ok with that, because many of them reap perceived benefits from that same central government - never caring that the government obtained the funds necessary for those benefits by taking them from others.

As Chris Rock put it, "I don't pay taxes - the government takes taxes."

Americans are notorious for not knowing their history. The lessons of the fall of Rome seem lost on the majority. (Paying off the mob - as in the "entitled" masses not the Mafia - can only go on for so long before things fall apart.)

Anyway, a disproportionately strong federal government is exactly what the founders did not want.

[BlueTrain]

No, no, no. And no.

They did believe in a strong central government because they had a weak central government under the articles and it didn't work. And the weakness was in their inability to collect taxes, among other things. Government apparently doesn't work on a voluntary basis.

How many meanings can "well regulated" have anyway? And what modern meaning is different from "archaic meanings?" In any event, we do live in modern times, not the 18th century, although some seem to live in the 19th and early 20th century. Well regulated meant subject to civil authority.

The history of Rome is not our history.

What do you think Romney's take on the power of the federal government would be, in actions, not in words?

And by the way, where do state governments fit into all of this? Huh?

[G.I.DAVE]

There is something to be said about the civilian population keeping up with technology to the military standards.

If civilians were restricted to carry muzzleloaders, then the armed citizen is not really armed to keep the balance of a tyrannical government.

I thik the laws are fine how they are. The only thing I would "restrict" or take a look at, is all this ballistic body armor these guys come up with. But then, once again one could argue if the military has it, the civilian populace should be able to outfit themselves...

[BlueTrain]

If what I believe is immaterial, then what others here believe is equally immaterial, is it not such that it is?

Some of the things printed in this thread could have resulted in jail time in the 18th century. But then, I suppose that's why most of us use pen names.

[Salmoneye]

reg·u·late
   /ˈrɛgyəˌleɪt/ Show Spelled[reg-yuh-leyt] Show IPA
verb (used with object), reg·u·lat·ed, reg·u·lat·ing.
1.
to control or direct by a rule, principle, method, etc.: to regulate household expenses.
2.
to adjust to some standard or requirement, as amount, degree, etc.: to regulate the temperature.
3.
to adjust so as to ensure accuracy of operation: to regulate a watch.
4.
to put in good order: to regulate the digestion.

[Technosavant]

Originally Posted by BlueTrain

How many meanings can "well regulated" have anyway? And what modern meaning is different from "archaic meanings?" In any event, we do live in modern times, not the 18th century, although some seem to live in the 19th and early 20th century. Well regulated meant subject to civil authority.

It apparently has more meanings than you believe it has. We do indeed live in modern times, but we are dealing with a document written before this modern era, and you cannot project modern meanings back in time. We don't need to discuss the Roman era; we're talking late 1700s America. That's hardly an incomprehensible horizon.

And yes, beliefs are irrelevant when they're incorrect. You can believe that 2+2=5, but nobody else is going to sign on to that. When you're dealing with document interpretation, the commonly accepted method is to interpret first into the original situation, not the modern one. You then bridge the original interpretation into the modern context. This is how it's going to be done if you're translating the Odyssey into modern English, it's how you'd make sense of Shakespeare's plays, it's how you'd read the US Constitution.

Projecting one's own modern context, thought patterns, and desires upon a document is called the "reader response" school of thought. Those who hold to that contend that there is no meaning to a work beyond that which the reader wishes to assign to it. This is oxymoronic, since the authors clearly had a meaning in mind when they created the work.


The etymology of "regulate" comes from the classical Latin regula, and had with it the concept of ensuring something conformed to a given principle or norm. As others have pointed out, that meaning is still extant in the word... we will occasionally mention a "regulator" as something that has nothing to do with force of law or government, but instead concerns everything being in order or working normally. The modern definition of regulate meaning to rule over does not trump nor does it redefine all previous usages.

In this sense, a "well regulated" milita is one that is capable of doing what it was intended to do. However, this is the "whereas" clause of the amendment. Whereas clauses provide a reason for the actual statement (which is the "... the right to keep and bear arms shall not be infringed" part), they do not themselves carry the force of law. That is what the actual statement does... the whereas clause says why the founding fathers thought it was a good idea to not infringe upon the right to keep and bear arms, but it is not necessarily an exhaustive reasoning nor would that reason cause the statement to fail the moment it is no longer the primary reason.

[NJgunowner]

Guns are already regulated, so in that respect Scalia's comments are 100% true. I think some of you guys are reading too much into his comments. The sky isn't always falling.

[armoredman]

I have been taught that the meaning of well regulated in the Colonial times was far more in line with teaching the civilian militia how to fight. The British troops were called "regulars", after all. The Founding Fathers had a horror of standing armies, well justified, and militias were state controlled, or local controlled. They wanted a stronger federal government than the ill fated Articles of Confederation, not due to militias and guns, but monetary matters and state tarrifs laid on neighboring state goods - THIS is where the infamous Commerce Clause comes from.
I think I would have liked to see the face of the interviewer in this interview when Justice Scalia casually mentioned hand held rocket launchers may be covered under the 2A - think Bud's Gun Shop could do a good business in gently used RPG7s?