Scalia guns may be regulated

[Mr2005]

I believe something lost on folks that want to say the fore fathers never invisioned AR-15's and high cap mags is that the 2nd amendment was meant to balance the technology of the military of the time and the 2nd was meant to give citizens comparable weapons.

As recenlty as last week, I heard Michael Moore and piers Morgan debate this. They were basically saying the 2nd amendment gives us citizens the right to single shot muzzle loaders.

Now Scalia is saying something similar:

http://www.nationaljournal.com/scali...lated-20120729

[jmortimer]

One of my favorite people and if he is saying this I'm concerned. Article from the National Journal dated 7-29-12:

"As an originalist scholar, Scalia looks to the text of the Constitution—which confirms the right to bear arms—but also the context of 18th-century history. “They had some limitations on the nature of arms that could be borne," he told host Chris Wallace."

When I saw the headline, I assumed he was warning us about other justices, or legislative bodies,or agencies, or the executve branch. Say it ain't so.

[Aguila Blanca]

Given that Scalia is considered to be, and considers himself to be, an "originalist," I find this to be extremely disappointing. Supposedly, Mr. Scalia looks at the original text of the Constitution and the context of the 18th century in interpreting the Constitution.

If that's the case ... how can he ignore the statements of the people who WROTE and voted in the Constitution, and the Bill or Rights? People such as Tench Coxe:

"The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American ... the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people."

In other words, when the Founders wrote that the RKBA "shall not be infringed," they meant it. They did NOT write that the RKBA shall not be "unreasonably" infringed ... they wrote a blanket, no exceptions prohibition. If Antonin Scalia doesn't get this, who CAN we trust? It should be as obvious as the nose on your face. The Founders used the word "unreasonable" in the 4th Amendment, so they were obviously aware of the word and conversant with its meaning. If they had intended for the RKBA to be subject to "reasonable" infringement (regulations), isn't it reasonable to suggest that they would have said so?

How does one reconcile "the unlimited power of the sword" [arms, in other words] in the hands of the People with any suggestion that this right may be regulated? If it can be regulated, it is not "unlimited."

Very interesting read about Tench Coxe: http://www.davekopel.com/2A/LawRev/hk-coxe.htm

[thallub]

“They had some limitations on the nature of arms that could be borne," he told host Chris Wallace."

This is essentially what SCOTUS said in Heller. Heller was not a resounding affirmation of our Second Amendment rights. Heller is probably the best we will get. See III pages 54-55.

http://www.law.cornell.edu/supct/html/07-290.ZO.html

Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through
the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and
carry any weapon whatsoever in any manner whatsoever
and for whatever purpose. See, e.g., Sheldon, in 5 Blume
346; Rawle 123; Pomeroy 152–153; Abbott 333. For example,
the majority of the 19th-century courts to consider the
question held that prohibitions on carrying concealed
weapons were lawful under the Second Amendment or
state analogues. See, e.g., State v. Chandler, 5 La. Ann.,
at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2
Kent *340, n. 2; The American Students’ Blackstone 84, n.
11 (G. Chase ed. 1884). Although we do not undertake an
exhaustive historical analysis today of the full scope of the
Second Amendment, nothing in our opinion should be
taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of
Cite as: 554 U. S. ____ (2008) 55


Opinion of the Court
arms.26
We also recognize another important limitation on the
right to keep and carry arms. Miller said, as we have
explained, that the sorts of weapons protected were those
“in common use at the time.” 307 U. S., at 179. We think
that limitation is fairly supported by the historical tradition
of prohibiting the carrying of “dangerous and unusual
weapons.”

See 4 Blackstone 148–149 (1769); 3 B. Wilson,
Works of the Honourable James Wilson 79 (1804); J.
Dunlap, The New-York Justice 8 (1815); C. Humphreys, A
Compendium of the Common Law in Force in Kentucky
482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable
Misdemeanors 271–272 (1831); H. Stephen, Summary
of the Criminal Law 48 (1840); E. Lewis, An Abridgment
of the Criminal Law of the United States 64 (1847); F.
Wharton, A Treatise on the Criminal Law of the United
States 726 (1852). See also State v. Langford, 10 N. C.
381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849);
English v. State, 35 Tex. 473, 476 (1871); State v.

[Don H]

Originally Posted by Mr2005

As recenlty as last week, I heard Michael Moore and piers Morgan debate this. They were basically saying the 2nd amendment gives us citizens the right to single shot muzzle loaders.

And the First Amendment's "freedom of the press" only applies to publications printed with hand-set type in hand-operated printing presses.

[Brian Pfleuger]

I don't see anything particularly troubling in there.

Guns may be regulated. That is a fact and should be obvious.

There is not and should not be completely unrestricted access to all manner of "guns".

I do believe that law-abiding citizens should have access to a vast array of powerful and completely unneccesary weapons.

However, those weapons are and should be "regulated".

Scalia simply says that guns are and should be regulated. He's right.

[Frank Ettin]

Yawn! There's nothing new here.

Yes, guns may be regulated. Indeed it's well settled law that constitutionally protected rights are subject to limited governmental regulation. Of course any such regulation can be challenged, and whatever governmental authority seeks to impose the regulation can have its day in court and the opportunity to make its case that the regulation satisfies the applicable legal standards for the impairment of a constitutionally protected right.

It's also historically true that the keeping and bearing of arms was subject to some regulation before, at the time of, and after the adoption of the Second Amendment. For an interesting discussion of early gun control, see Adam Winkler's Gunfight: The Battle Over the Right to Bear Arms in America (W. W. Norton & Company, 2011).

[Technosavant]

It's also important to note that pre-Heller, guns could not only be regulated, but whole categories (and potentially even all firearms) banned as far as private ownership goes. That was the situation... had Heller gone the other way, it would still be the case. The ONLY thing preventing that kind of complete ban before that decision was the action of people opposing such measures at all levels of government.

Post-Heller, we find that outright bans (at least the most draconian ones) are off the table, but that still leaves a lot of room. Registration is seemingly not prohibited, and the nature of other prohibitions might also be in question (as Scalia seems to say). This is no surprise, Heller was more of a ceiling to what the anti-gun forces might pull off, but we still don't know just how high that is. Remember- keep up the work, and they can't get the bans/regulations passed, and it's a moot point. Just because something might be constitutionally allowed in the eyes of SCOTUS doesn't mean it happens- it has to be passed through two houses of Congress and then signed into law, and even then it can still be repealed/sunset.

[tyme]

The article mentions "frightening weapons", but it's not in quotes. If Scalia actually used those words, I am frightened. Does Scalia believe that some person's opinion of how "frightening" a gun is determines whether or not it can be illegal to carry safely and responsibly?

I am more frightened by knives than by guns. I suppose knife carry should be banned?

[KyJim]

Any gun pointed in my direction is frightening. I imagine there's some interpretation going on in the use of that word.

[JN01]

Scalia was interviewed by Chris Wallace on Fox News Sunday and was asked about gun restrictions. He said in part:

We'll see. I mean, obviously, the amendment does not apply to arms that cannot be hand-carried. It's to keep and bear. 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 -- it will have to be decided.

More here:http://www.foxnews.com/on-air/fox-ne...country?page=2

[JN01]

The article mentions "frightening weapons", but it's not in quotes. If Scalia actually used those words, I am frightened. Does Scalia believe that some person's opinion of how "frightening" a gun is determines whether or not it can be illegal to carry safely and responsibly?

Scalia said:

What limitations upon the right to bear arms are permissible. Some undoubtedly are, because there were some that were acknowledged at the time. For example, there was a tort called affrighting, which if you carried around a really horrible weapon just to scare people, like a head ax or something, that was I believe a misdemeanor.

He was talking about the fact that there were some arms restrictions at the time of the nations founding. The offense he referred to above seems to be more of a prohibition on behavior rather than the weapon itself- similar to the modern charge of brandishing.

[Glenn E. Meyer]

Chris Wallace - Matthews is on MSNBC?

[JN01]

You're right, I meant Wallace. Post corrected.

[WyMark]

Same guy, different schtick for different networks.

[Luger_carbine]

Isn't it a little odd for a sitting Supreme Court Justice to be out giving interviews and discussing the meaning of various rulings?

I don't remember other justices doing this sort of thing.

[jtmckinney]

Probably my first post in this section even though I read most threads and a lot of them several times.

I watched the interview this morining and he said some things that were uncomfortable for gun owners. Maybe that was his intent, maybe we shouldn't be comfortable. The SCOTUS only rules on laws passed, maybe that was his message about how we should vote for our representatives on guns as well as many other issues (I hate the word "issues" but that is the only word that fits at this time for me).

Also maybe his real intent was to sell his book. May have succedded with me as I am interested in the way the SCOTUS works, maybe this would shed some light on that.

I also heard a man that refused to be put into a box, If I was a Supreme Court Justice I wouldn't allow anyone to put me in a box either.

Have a great day!
James

[Tom Servo]

Isn't it a little odd for a sitting Supreme Court Justice to be out giving interviews and discussing the meaning of various rulings?

Ginsburg has, as well as Breyer.

[Aguila Blanca]

Originally Posted by JN01

Scalia was interviewed by Chris Wallace on Fox News Sunday and was asked about gun restrictions. He said in part:

So Mr. Scalia is saying that we should NOT be allowed to own cannons and rockets and tanks and howitzers? How does this reconcile with the practice at the time of the Revolution that the wealthy members of the local militia owned the unit's cannon? In fact, I believe in some units it was the local laird who owned the cannon who got to be the commander.

And the notion that the second Amendment doesn't apply to any weapon we can't carry on our person also doesn't square with Tench Coxe's well-known treatise about "all the terrible implements of war" being the birthright of the American.

For once, i must respectfully disagree with Frank Ettin. Frank is an attorney, and he approaches this from the perspective of the attorney: he looks at precedent. The problem with precedent is that it can be wrong. I fully understand that precedent tells us civil rights have historically been subject to "reasonable" regulation. As a layman who grew up in the family of a professor of law, speaking English as my native language, I come back to the question of HOW the idea of any regulation whatsoever can be reconciled with the clear and unambiguous statement in the 2nd Amendment that the RKBA "shall not be infringed." It does NOT say "shall not be unreasonably infringed." It is a blanket prohibition -- and a regulation IS an infringement.

The Founders knew the word "unreasonable." They used it in the 4th Amendment. That alone should tell us that IF they had intended to allow the RKBA to be subject to "reasonable" regulation, they would have written the 2nd Amendment to provide that the RKBA "shall not be unreasonably infringed." But ... they did NOT write that.

[Frank Ettin]

Originally Posted by Aguila Blanca

...I fully understand that precedent tells us civil rights have historically been subject to "reasonable" regulation. As a layman who grew up in the family of a professor of law, speaking English as my native language, I come back to the question of HOW the idea of any regulation whatsoever can be reconciled with the clear and unambiguous statement in the 2nd Amendment that the RKBA "shall not be infringed."...

Nonetheless, the reality is that the courts, on the basis of precedent, will be sustaining some regulation of the right to keep an bear arms. Perhaps one could imagine a place in the realm of Platonic ideals in which the right to keep and bear arms is entirely unregulated, and it might be possible to put forth all manner of fine philosophical arguments as to why that is the way things should be.

But the likelihood of anything like that actually coming to pass in the real world is vanishingly small.

[Aguila Blanca]

I understand the reality, but my naive world view is that if we allow the people who interpret the laws to forget what the law actually says and originally meant, then we're contributing to the construction of the house of cards. I certainly can't force a Supreme Court justice to vote according to my perception of what the Constitution says, and it's beyond unlikely that I'll be nominated as a justice, so the best I can do is try to hold their feet to the fire and encourage others to do the same. We need to keep reminding them that we are out here and that we CAN read.

If we collectively stop advocating for what the 2nd Amendment really says and really meant at the time it was written, then we may as well snuggle up with the anti-gun advocates and admit that the Constitution is a "living document," to be interpreted according to the whims of the moment rather than according to its original intent.

[gc70]

Supreme Court Justices do not miraculously know everything about every possible topic and Scalia does not know everything about guns and the original meaning of the Second Amendment.

To a large degree, Supreme Court Justices use information from prior cases and decisions and the briefs submitted for particular cases. Scalia and the other Justices have a good deal of information that was critical to the questions posed by Heller and McDonald. But the questions posed in those cases did not cover the totality of Second Amendment history or meaning. As other case come before the Court, the Justices will get additional information to help them decide the specific questions of those cases. The Second Amendment is far from fully defined in the judicial system.

[JerryM]

I watched the interview, and I am not surprised or disappointed. I was never convinced that the 2nd or any Amendment is without some restrictions. Freedom of speech is not unrestricted nor should it be, and the same goes for the 2nd.

There are people I do not believe should own or even have access to firearms, and some firearms that the average citizen should not have unrestricted access to. I am thinking mostly about full auto and rocket launcher type weapons. Restrictions are required regarding the access and ownership to such weapons.

I do not think the mentally ill should have unrestricted rights re weapons, and agree with age restrictions.
There is a different mind-set among the youth than 50 years ago.

So overall I expected Justice Scalia to say what he did, and am not disappointed.

Jerry

[Al Norris]

Nothing that Scalia said in this interview was inconsistent with what he wrote in Heller.

Originally Posted by jtmckinney

Also maybe his real intent was to sell his book. May have succedded with me as I am interested in the way the SCOTUS works, maybe this would shed some light on that.

This!

If anyone had bothered to look beyond the sound bytes, you would have seen that this was one of many stops to hawk his new book.

[Luger_carbine]

^ Yep

He gets frustrated at one point and says "Are we going to talk about my book?"