Scalia: Of course some guns can be regulated

posted at 4:41 pm on July 30, 2012 by Allahpundit

Skip to 7:00 for the key bit. People were grumbling about this in yesterday’s Headlines thread but there’s nothing new here that I’m aware of. The Heller opinion that he authored for the Court four years ago was notable for two holdings. One, the one everyone knows: The Second Amendment establishes an individual right to bear arms, not a right limited to militias. Two, the one everyone forgets: That right is not absolute. I remember blogging it the morning the decision was announced, and the more I read, the more my feeling went from “WOW” to “this … isn’t much different from the current legal regime.” The bottom line was that government can’t ban guns outright, but they’ve got plenty of leeway in what they can do short of that. Scroll down to Part III, starting on page 54, of Scalia’s opinion for the Court’s thoughts on how the right might be limited. A choice quote:

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 arms.

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.”… We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

It may be objected that if weapons that are most useful in military service — M-16 rifles and the like — may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

He’s telling you flat out that states can still ban weapons for being “dangerous and unusual.” The next step in this line of jurisprudence will be to flesh that out. E.g., is it enough that a weapon is highly dangerous or does it have to be dangerous and “unusual”? (Scalia’s example in the interview of a handheld rocket launcher seems a no-brainer on that count.) I’m not sure where he’s going with the last part of the excerpt, though. Is he saying that the scope of constitutionally protected weapons has to be expanded to include heavier weapons due to the technological advantage of modern militaries? Or is he saying that it won’t be expanded on those grounds, but at the same time, the inadequacy of protected weapons in repelling a military attack is no reason to say there should be no protected weapons at all? Hmmmm. Long story short: It sure would be nice to have Justice Paul Clement on the Court five years from now deciding this issue rather than whatever hard-left liberal Obama scrapes from the ivory tower.



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Looking to pull a Roberts, eh, Scalia? I suppose that what gets you the liberal praise you people covet most.

rickv404 on July 30, 2012 at 6:22 PM

Huh? Guns sales increase at a Fast and Furious rate with this announcement no doubt. Me I have a different one for each day of the year. I was happy with my collection of 365. Two for each day? I do want to stay current with the newest fashion trend after all. ; )

Bmore on July 30, 2012 at 6:29 PM

Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks.

He should tell that to a bunch of iraqi and afghan hudlums….who are running us out of Afghanistan.

BS. I’ll take this statement as proof that he is a complete idiot and incompetent to judge anything. He should be removed from office.

orbitalair on July 30, 2012 at 6:42 PM

Two for each day? I do want to stay current with the newest fashion trend after all. ; )

Bmore on July 30, 2012 at 6:29 PM

.
Well, as we like to say over on ARFcom

“Two is one and one is none.”

PolAgnostic on July 30, 2012 at 6:44 PM

The Second Amendment had a single purpose: keeping citizens armed enough that they could violently overthrow the government.

That means rocket launchers, tanks, and cruise missiles, if need be. The idiots who keep saying “the Founding Fathers never anticipated X, Y, and Z weapons, so 2A doesn’t apply” are openly stating that we should be at a disadvantage to topple tyranny.

MadisonConservative on July 30, 2012 at 6:51 PM

If government can have weapons, then so shall we.

fatlibertarianinokc on July 30, 2012 at 6:54 PM

Which Guns?

The Guns that are already regulated? or more guns that aren’t yet regulated?

Or do you mean the manufacture, sale, and use of the guns we can own?

I think all that is already regulated.

So, which guns exactly are we talking about?

Lawrence on July 30, 2012 at 6:58 PM

Or where we can buy our weapons from. Or whether we can have them shipped to our homes.

Dunedainn on July 30, 2012 at 7:20 PM

You beat me to it. I want my own personal nukes.

The Rogue Tomato on July 30, 2012 at 4:45 PM

Just don’t bring them to Berkeley, CA. They have signs posted around town, declaring them a “Nuclear Free Zone”.

What a joke.

Hill60 on July 30, 2012 at 7:30 PM

The Second Amendment respects the rights of the people to arm themselves with whatever arms they deem are necessary to secure their liberty and restore legitimacy to a government that has forfeited its legitimacy. The people intrinsically know what this means. They don’t need a Supreme Court to tell them what it means. Maybe that’s why the arms industries are working triple shifts right now and the people are buying arms and ammo in record numbers.

Tripwhipper on July 30, 2012 at 7:59 PM

You could build your own personal UAV today, armed with a scoped and aimable (within 20-30deg) rifle. You would have to build a couple of the key parts, but it’s very doable, and will get easier every year.

slickwillie2001 on July 30, 2012 at 8:02 PM

If government can have weapons, then so shall we.

fatlibertarianinokc on July 30, 2012 at 6:54 PM

Absolutely. And remember this:

GOVERNMENT HAS GUNS BECAUSE WE THE PEOPLE SAID IT COULD IN THE CONSTITUTION!!! If We the People didn’t have the right to arms, how could we have granted that power to our government?

The government is forbidden to infringe upon the Right to Keep and Bear Arms. The right itself is without limit. All power granted to the government is derived from the inalienable rights of the people. If the right of people to keep and bear arms contained any limits, the people could not grant power to the government for it to keep and bear up unlimited arms to defend the nation. In any scenario, the government cannot limit the people’s right to arms to any lesser degree than the power of that government to possess arms as is granted to it by, and from, the people. In granting power to our government to keep and bear arms to defend our nation, we do not surrender any of the right from which that power is derived. To surrender, or even simply deny any portion of the right exists, is to also deny the same derived power to the government.

Without that central or a state government, we would have to defend our land ourselves and would have every right to access, create, bear, and deliver any weapon necessary to that end. We simply grant some of that power to the government out of convenience. We did not surrender any of that power to the government, either. Purposefully, Article I, Section 8, begins, “Congress shall have power;” and not, “Congress shall have the power;”. We still have as much right to any and all weapons as we have granted power to the government to have.

It follows, then, that should the government(by the actions of those chosen to run the government) wish to limit in any way the fashion in which we so choose to keep and bear our arms, it can not do so without infringing upon the right. In that the right is inalienable, not even we the people can divest ourselves of it, therefore, we can not grant power to the government to limit our keeping and bearing of arms. We can share our right to keep and bear arms with the government as a power granted to it, but cannot surrender any of it to the government. The bottom line is that the government is, and is of, us. It cannot do to us anything we cannot do to ourselves.

Go read the Preamble to the Constitution. WE ordained and WE established the Constitution. WE had(and still do have) the RIGHT to do that, would you not agree? We have the right to govern ourselves. We exercised that right to establish(construct) the Constitution and ordain(to appoint) it as the foundation for our government. All power granted or delegated to the government is derived from our right to govern ourselves. The power of the government is inferior to any right or rights we the people have. It is the same no matter what the right might be. Just as the government has no power, nor could it ever have the power, to control my right to think, it does not, nor could it ever have, the power to control how I choose to keep and bear my arms. It is that simple.

woodcdi on July 30, 2012 at 8:02 PM

MadisonConservative on July 30, 2012 at 6:51 PM

Technically, yes. Practically, a bad idea.

The US leads the world in the development of high tech weaponry and the really good stuff is secured to keep our enemies from just grabbing it to copy. Obviously that is not desirable because we want to invent and keep the best kit possible to provide a force multiplier on the battle field.

If I buy a latest gen. Predator and keep it in my barn, someone’s going to find a way to take that and sell it to our enemies.

That would be a national security issue.

But as for the simple stuff like Stinger missiles, grenades, machine guns, howitzers – that wouldn’t be an issue. It’s all available on the black market anyway. If you steal my stinger missile stash sure I’ll be pissed but them’s the breaks.

CorporatePiggy on July 30, 2012 at 8:04 PM

The manufacturers need to start making guns that resemble repeaters but are much more effective. It’s always good to have some old fashioned guns on hand. Good ol double barreled shotguns, Winchester repeaters and so forth.

And just because of the times we live in.. it’s stupid to name weapons “street sweepers” and garbage like that, like was the case a few years back.

Bottom line… we need revival in America. We need it desperately. Our nation was based on Godly principles and Christian morality and without it.. it will not survive.
You can have all the good laws you want.. but if the people and our leaders are corrupt it won’t matter. Lawlessness will prevail.

JellyToast on July 30, 2012 at 8:08 PM

CorporatePiggy on July 30, 2012 at 8:04 PM

You make a very fair and good point. The thing is, though…that next-gen weaponry will immediately be put to use on the populace in the case of government crackdown. I’m sure it’s factored into much of their development of nonlethal weaponry. We either need to have it ourselves…or be armed and ready with the knowledge to disable or destroy it.

Not that I’ve given thought to where drones used to monitor US citizens would be kept, and what kind of impact a little thermite or C4 might have. No, sir.

MadisonConservative on July 30, 2012 at 8:14 PM

MadisonConservative on July 30, 2012 at 8:14 PM

I agree.

Living in flyover land I’ve driven past military arms dumps seemingly in the middle of nowhere.

The hardware there is sometimes put on trains and sent out to ports and airfields to take it to troops in the field. But the real purpose of these arms dumps is in case of domestic insurrection.

It’s not that big a secret really, but its not publicized with highway signs…

So yeah, between these and non-lethal weapons not to mention surveillance and cyber war developments – yes, you have good reason to ask all the questions that you hint at.

CorporatePiggy on July 30, 2012 at 8:27 PM

Actually some are marked by highway signs, they just leave out the “For use in case of insurrection” bit.

CorporatePiggy on July 30, 2012 at 8:29 PM

Being in the business I’ve taken issue with hardcore libertarians who say ‘Oh, sure I should be able to own and operate Stinger missiles or stuff like that.’ My issue is the security of said ordnance. I don’t fly that often but knowing someone who might have had ten beers too many gets his hands on a Stinger RMP Block 0 bird (with launcher of course) would definitely make me very uneasy riding in that aircraft. Also, if some yolkels down the road were again into their cups and decided to drop a few 60mm mortars into the tube for some excitement (tilted my way) THAT causes me pause … as it would for you also, if you have a tripple digit IQ.
However my rules are: You can carry what you want, where you want, anytime you want. But if you phuck up with it, the law will come down on you like five tons of bricks.

AND if it is SELF PROPELLED or must be TOWED … you should have a license for operating on the public streets.

Missilengr on July 30, 2012 at 8:41 PM

Scalia hasn’t been the same since he voted with the anti-Constitutionalists in the Kelo decision….

Good grief.

molonlabe28 on July 30, 2012 at 6:02 PM

Scalia voted with the anti-Constitutionalists in Kelo?

Seriously?

Dude?

Epic Fail.

http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London

EPIC.

FAIL.

Hayabusa on July 30, 2012 at 11:22 PM

…arms for everyone!

KOOLAID2 on July 30, 2012 at 11:32 PM

Living in flyover land I’ve driven past military arms dumps seemingly in the middle of nowhere.

The hardware there is sometimes put on trains and sent out to ports and airfields to take it to troops in the field. But the real purpose of these arms dumps is in case of domestic insurrection.

It’s not that big a secret really, but its not publicized with highway signs…

CorporatePiggy on July 30, 2012 at 8:27 PM

So, in case of a domestic insurrection, this is where the insurrectionists will go for better arms?

profitsbeard on July 30, 2012 at 11:57 PM

Living in flyover land I’ve driven past military arms dumps seemingly in the middle of nowhere.

The hardware there is sometimes put on trains and sent out to ports and airfields to take it to troops in the field. But the real purpose of these arms dumps is in case of domestic insurrection.

It’s not that big a secret really, but its not publicized with highway signs…

CorporatePiggy on July 30, 2012 at 8:27 PM

So, in case of a domestic insurrection, this is where the insurrectionists will go for better arms?

profitsbeard on July 30, 2012 at 11:57 PM

Gonna reiterate my previous point.

In any serious domestic insurrection, the police, national guard, and military would be entirely ineffective no matter how well armed they were.

If 1% of the American population revolted you’d have a force of over three million people. Realistically speaking, once an insurrection became measurable in terms like that it’d probably start growing until it was well larger then that.

The military, for all its amazing force multiplication, isn’t capable of dealing with a force many times its own size. Such a force could be armed with sticks and the end outcome would still be the same.

Better guns would make it a lot easier for said insurrectionists of course.

Again, I hope it never ever comes to that. One civil war was enough. :P

WolvenOne on July 31, 2012 at 2:05 AM

Better guns would make it a lot easier for said insurrectionists of course.

Again, I hope it never ever comes to that. One civil war was enough. :P

WolvenOne on July 31, 2012 at 2:05 AM

Government is trying to prevent, or is preparing to prevent, something it should never be making necessary in the first place.

Much of government activity of late seems to be compelling We the People to prepare ourselves for such necessary action to preserve our rights and freedoms. It’ll be much easier for us to preserve our rights and freedoms now than to restore them later. I believe our buying of arms and food supplies is a deterrent to a potential bellicose national government not of our choosing, and what we have now is becoming something not of our choosing.(Some would say it already IS something not of our choosing.)

Every now and then, from various sources, trial balloons tend to pop up. Scalia’s comments might have been just that – a trial balloon to gage public opinion, or to see who in the crowd stands up holding a pin.

At any rate, if by enough of us arming up and preparing to survive and prevail a government clampdown does not deter a despotic shift in our general government, our arms and preparedness for the long haul will give us all we need to not only restore constitutional government but to thrive. As long as we are armed, we have the means.

Woody

woodcdi on July 31, 2012 at 5:17 PM

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