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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Comment pages: 1 2

I guess this rules out having our own “personal nuclear deterrent”.

Blaise on July 30, 2012 at 4:44 PM

I guess this rules out having our own “personal nuclear deterrent”.

Blaise on July 30, 2012 at 4:44 PM

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

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

He’s telling you flat out that states can still ban weapons for being “dangerous and unusual.”

Technically every gun is dangerous. Otherwise it wouldn’t be much use to anyone. What constitutes “unusual” though? Phased plasma rifle in a 40 watt range?

Doughboy on July 30, 2012 at 4:45 PM

The Harvard Cabal keeps on trucking

Nathan_OH on July 30, 2012 at 4:45 PM

“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…”

How about a million dollar tax on every gun sale…?

Seven Percent Solution on July 30, 2012 at 4:46 PM

Individuals may arm themselves to form a militia. The state may regulate it’s militia.

States rights states that states are right, right? Right.

Capitalist Hog on July 30, 2012 at 4:47 PM

Is this why I can’t pick up a rocket launcher in Target?

changer1701 on July 30, 2012 at 4:47 PM

So when Obama+Holder smuggle guns to mexicans ( and maybe even alqaeda) to kill Americans, how does the Constitution justify that ?

burrata on July 30, 2012 at 4:47 PM

Guess I better use the Family Atomics before the grabbers can get to them.

innominatus on July 30, 2012 at 4:49 PM

In ten years, cruise missiles could be cheap enough to buy off the shelf if you were allowed to have one. Probably not. A lot of these decisions are going to come up in the near future.

RBMN on July 30, 2012 at 4:49 PM

What in the world make anyone think the ‘bad guys’ will not find a way to get guns/rockets or whatever they want to do us in if they want to? New regulations will do diddy squat for those wanting to do harm? Just look at states who has strick guns laws, do the ‘bad guys’ have guns, YOU BET they do? All it does in strick gun law states, the ‘good guys’ can’t defend themselves!
L

letget on July 30, 2012 at 4:49 PM

Is this why I can’t pick up a rocket launcher in Target?

changer1701 on July 30, 2012 at 4:47 PM

I think that’s to save them the cost of having to buy a new sign every day.

lorien1973 on July 30, 2012 at 4:50 PM

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.”

Depends on where a person lives. New York and Chicago seem to clearly practice unconstitutional authority over firearms after Heller. And even after Heller D.C. is fighting tooth and nail not to comply. There are going to be many dozens of cases before the gun grabbers are forced to retreat in the face of the law.

NotCoach on July 30, 2012 at 4:51 PM

I guess this rules out having our own “personal nuclear deterrent”.

Blaise on July 30, 2012 at 4:44 PM

They’ll get my nukes when they pry them…

But perhaps I’ve said too much.

JohnGalt23 on July 30, 2012 at 4:51 PM

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.

What? You don’t want another “wise Latina”?

And to head off the ABR trolls, no we don’t really know who Romney will nominate for the court, but we do know for sure what Obama will.

kim roy on July 30, 2012 at 4:51 PM

Is this why I can’t pick up a rocket launcher in Target?

changer1701 on July 30, 2012 at 4:47 PM

I think that’s to save them the cost of having to buy a new sign every day.

lorien1973 on July 30, 2012 at 4:50 PM

Oh, bravo! [golfclap]

JohnGalt23 on July 30, 2012 at 4:52 PM

States rights states that states are right, right? Right.

Capitalist Hog on July 30, 2012 at 4:47 PM

States rights do not trump enumerated rights. And the right to pack heat is enumerated. Incorporation for all other enumerated individual rights except the 2nd Amendment, right?

NotCoach on July 30, 2012 at 4:53 PM

Guess I better use the Family Atomics before the grabbers can get to them.

innominatus on July 30, 2012 at 4:49 PM

Now, Paul, only use the family atomics if the Baron is nearby, or possibly Feyd-Rautha.

john1schn on July 30, 2012 at 4:54 PM

I heard that interview. Scalia was his awesome self as usual-though it totally sucks that now I won’t be able to buy that Hot pink, double barreled rocket launcher that I had my heart set on.
What?

annoyinglittletwerp on July 30, 2012 at 4:54 PM

So he’s saying I can’t have one of these?

http://www.youtube.com/watch?v=ty-1zWsXFNs

CurtZHP on July 30, 2012 at 4:55 PM

so, can I still haz a Warthog or Banshee?????
/HALO

ted c on July 30, 2012 at 4:55 PM

a handheld rocket launcher

I remember when a SC Justice could get through an interview without using gay slang.

Fail.

CorporatePiggy on July 30, 2012 at 4:55 PM

Consumer-market drones would make deer hunting a lot easier. Getting up at 5 am on cold November mornings is just no fun.

RBMN on July 30, 2012 at 4:56 PM

And to head off the ABR trolls
kim roy on July 30, 2012 at 4:51 PM

You just had to go and start that, didn’t you, Rombot?

Dunedainn on July 30, 2012 at 4:56 PM

…99 more days and it’s… NOT the ECONOMEY stupid…!!!…guess the topics should be guns and girls!

KOOLAID2 on July 30, 2012 at 4:56 PM

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

Well, should the US Govt decide to use “modern-day bombers and tanks” against US citizens, we will have long passed the point of no return.

A massive citizen arsenal, comprised of millions and millions of small arms, however, will be instrumental to casting off such a tyrannical government and implementing a new one that is the servant, not the master of its citizens. The Founding Fathers knew this when they wrote the Second Amendment.

Harbingeing on July 30, 2012 at 4:57 PM

I think explosives are probably out of bounds. In the future I think laser guns would be protected.

El_Terrible on July 30, 2012 at 4:57 PM

You just had to go and start that, didn’t you, Rombot?

Dunedainn on July 30, 2012 at 4:56 PM

Are you on dope? Kim’s NOT a ‘Rombot’.

annoyinglittletwerp on July 30, 2012 at 4:58 PM

Are you on dope? Kim’s NOT a ‘Rombot’.

annoyinglittletwerp on July 30, 2012 at 4:58 PM

Sorry. When your first post lambasts “ABR trolls”, there’s nothing else you could possibly be.

Dunedainn on July 30, 2012 at 4:59 PM

I also reject the argument of gun owners needing semi auto weapons… A pistol or shotgun works just fine as a deterrent and last resort weapon.
 
Ric on July 24, 2012 at 9:02 PM

rogerb on July 30, 2012 at 4:59 PM

Aren’t Lautenberg et al just introducing a bill to make all online ammo sales reportable? I saw a link on that here just a few minutes ago.

a capella on July 30, 2012 at 4:59 PM

Guess I can’t park that Abrahms tank I’ve been saving up for in the backyard after all.

BKennedy on July 30, 2012 at 5:01 PM

Sometimes I wonder if his honor realizes that the term reasonable to liberals means that firearms must, will and can be banned?

America is fighting its way back from a very dark place on the right to, keep, and, bear, arms, we don’t want to go back there and there’s much more fighting to be done.

Either the findings are very clear and set in stone or the anti civil rights movement will construe their meaning to be whatever suits their purpose.

Please

Speakup on July 30, 2012 at 5:01 PM

RPGs would take road rage to a whole new level.

tru2tx on July 30, 2012 at 5:01 PM

I wish these justices would shut the h-ll up and just do
their jobs.

Amjean on July 30, 2012 at 5:03 PM

I wish these justices would shut the h-ll up and just do
their jobs.

Amjean on July 30, 2012 at 5:03 PM

There be the rub. They actually think they are doing their jobs.

Snake307 on July 30, 2012 at 5:05 PM

I heard that interview. Scalia was his awesome self as usual-though it totally sucks that now I won’t be able to buy that Hot pink, double barreled rocket launcher that I had my heart set on.
What?

annoyinglittletwerp on July 30, 2012 at 4:54 PM

No … you should buy it NOW while they are still available.

There really was a bazooka for sale at the last gun show I attended.

There are an amazing number of things you CAN OWN if you get the approved BATFE paperwork and have enough money.

PolAgnostic on July 30, 2012 at 5:06 PM

The critical ruling in Heller established that the right to keep and bear arms was a fundamental individual right.

That doesn’t mean it can’t be regulated, but it does mean that the courts must apply “strict scrutiny”, the highest standard when determining the constitutionality of restrictions.

Strict scrutiny requires that any such restrictions must meet two tests:

1) It must serve a compelling governmental interest. It can’t just be a good idea, it must be necessary.

2) It must be narrowly tailored to serve the compelling interest. The court considers two factors here, and some view it as two separate tests. It must address the compelling government interest, and that interest only. If it is more restrictive than necessary, it fails this test. So if it is over-broad in the sense of addressing separate issues, or overly restrictive in the sense that less restrictive measures would serve the government’s compelling interest as well, it fails.

What Scalia said wasn’t news. Heller was a huge victory for 2nd Amendment rights, but some restrictions can be justified if they meet the standard of “strict scrutiny”.

novaculus on July 30, 2012 at 5:06 PM

I bet if the Empire had just outlawed all major weapons besides personal blasters, the Rebels wouldn’t have had a fighting chance.

Badger40 on July 30, 2012 at 5:08 PM

OT: wolfie all tingly because ehud barak says obama has been the most supportive president to Israel….

BLECH….

ehud what have you been drinking there bub?

cmsinaz on July 30, 2012 at 5:09 PM

PolAgnostic on July 30, 2012 at 5:06 PM

I was joking. I’m considering something more like a ladies-cut revolver.

annoyinglittletwerp on July 30, 2012 at 5:09 PM

I bet they thought the same thing ’bout them fancy contraptions called cannons.
And the English did let those silly Scots have claymores. Nor any other sword.
If oppressed people are really pi$$ed off enough, they’ll fight with their pitchforks.
But of course, that’s pretty hard when the federal Govt’s got robot drones flying over your house while they watch you via Google Earth & won’t let you buy anything more than a box of rounds in one year for your pop can shooter.

Badger40 on July 30, 2012 at 5:12 PM

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

Dangerous weapons?

Can’t have those. Someone might get hurt by one!

Unusual weapons?

Can’t have those. We need to be surrounded by usual things that we know about and have already adjusted to.

Some lawyerese reads like psychological assessment.

Axe on July 30, 2012 at 5:12 PM

Badger40 on July 30, 2012 at 5:12 PM

My late-dad owned a Claymore. THAT was a knife.

annoyinglittletwerp on July 30, 2012 at 5:14 PM

So,Peter Griffin didn’t actually buy a tank for Meg’s first car? I can’t believe they fooled me!

Tbone McGraw on July 30, 2012 at 5:14 PM

And you know this notion about the SCOTUS being the only entity that gets to make decisions on what is or is not Constitutional is pure $HIT.

That’s why each state is a sovereign entity. They have the power to tell the Fed to go eff itself.
It’s called seceding.

Badger40 on July 30, 2012 at 5:14 PM

“dangerous and unusual weapons.”

Probably thinking along the lines of a ‘cane gun’, ‘blowgun’ or even ninja ‘throwing stars’.

GarandFan on July 30, 2012 at 5:15 PM

Since Obama is dangerous & unusual, I vote he is UnConstitutional.

Badger40 on July 30, 2012 at 5:12 PM

My late-dad owned a Claymore. THAT was a knife.

annoyinglittletwerp on July 30, 2012 at 5:14 PM

Family heirloom? Very neat!

Badger40 on July 30, 2012 at 5:16 PM

Duh, no silver bullet

This is old news. If you want to keep your rights, you’re going to have to keep on fighting.

Politics is the answer, forget the Lakers and get busy.

CrazyGene on July 30, 2012 at 5:17 PM

Probably thinking along the lines of a ‘cane gun’, ‘blowgun’ or even ninja ‘throwing stars’.

GarandFan on July 30, 2012 at 5:15 PM

Throw in cars, horseshoes, pointy sticks, ropes, garrotes, peanut products, and viruses.

Badger40 on July 30, 2012 at 5:17 PM

If Obozo gets reelected, we’ll find out EXACTLY what weapons are and are not considered unusual.
And my guess it will be basically all of them.

Elections have consequences folks.

KMC1 on July 30, 2012 at 5:17 PM

If you want to keep your rights, you’re going to have to keep on fighting.

Politics is the answer, forget the Lakers and get busy.

CrazyGene on July 30, 2012 at 5:17 PM

Haha! +100

Badger40 on July 30, 2012 at 5:18 PM

Guess I can’t park that Abrahms tank I’ve been saving up for in the backyard after all.

BKennedy on July 30, 2012 at 5:01 PM

You can but its weapons cannot be operational (i.e. rendered inert). Whether you could drive it anywhere on public roads without having to take all kind of precautions, including paying a heavy vehicle tax (for road damage), would be another matter.

I had thought that dangerous and destructive weapons were banned which is where the hand grenade, RPG, and mortars, etc. would be affected while (merely?) dangerous weapons like machineguns were regulated and subject to a transfer tax. So, other than including “unusual” in any description, it does not seem like anything really changed.

Russ808 on July 30, 2012 at 5:19 PM

NotCoach on July 30, 2012 at 4:53 PM

That is my point. My sidecarry should not be federally regulated beyond registration which I am willing to concede with (no time delay) but do not accept as Constitutional.

Also, states should be able to determine their own defense needs. That is, they should regulate their militia.

For example, the state of Texas should be able to us it’s own citizens to defend it’s southern-border. Perhaps Texans would be better-served by compulsory firearms-training for all adult-citizens in good standing. Whatever the outcome, the state can regulate a local militia made up of citizens exercising their Constitutional rights.

We agree that states rights only apply to those not enumerated by Constitution.

What do you think of federal CCW permit?

Capitalist Hog on July 30, 2012 at 5:19 PM

“dangerous and unusual weapons.”

Pay attention to Scalia’s example: a beheading axe.

Dangerous to whom? The target? The wielder? Bystanders?

Instead of buying that case of wine or extra 12 pack, send the $$ to the NRA. The trick is to move the right legislation at the right time.

CrazyGene on July 30, 2012 at 5:19 PM

Frankly, I don’t have a problem with, “some,” weapons being banned, on a state level.

In my mind, 2nd amendment serves two purposes. One is to assure that citizens have access to vital tools which to this day may be necessary for survival.

The second purpose is to act as a last ditch barrier against tyranny. For this second purpose, “unusual,” or “military grade,” weaponry would actually likely be overkill.

Think of it this way. In a country the size of America, if 1% of the population decided to stage an open armed revolt, you’d instantly have an army of over three million people. Assuming they’re organized, semi-automatic rifles alone give them a force imbalance to such an extent that tanks, aircraft, and essentially anything short of nukes would be entirely ineffective.

In terms of, “personnel,” the US military isn’t that big. As well armed as they are, even if you assumed no defections the conflict in such a scenario would be akin to dropping a grizzly bear into an ocean of scorpions. The grizzly might kill a lot of scorpions, but ultimately any struggle would be useless and one sided.

Not that I’d advocate doing this. It’s easy to talk about these sorts of things in the abstract, in reality it’d be a tragedy of biblical proportions. I’m hoping it never EVER comes down to that.

WolvenOne on July 30, 2012 at 5:21 PM

Also, states should be able to determine their own defense needs. That is, they should regulate their militia.

For example, the state of Texas should be able to us it’s own citizens to defend it’s southern-border. Perhaps Texans would be better-served by compulsory firearms-training for all adult-citizens in good standing. Whatever the outcome, the state can regulate a local militia made up of citizens exercising their Constitutional rights.

We agree that states rights only apply to those not enumerated by Constitution.

What do you think of federal CCW permit?

Capitalist Hog on July 30, 2012 at 5:19 PM

ON THE HEAD OF THE NAIL, Friend.
I think the Federal Govt needs to keep its f^&*ing nose out of militia business.
Without a militia, their a$$e$ would never have existed in the FIRST place.

Badger40 on July 30, 2012 at 5:22 PM

Justice Scalia, leave my hand-held rocket launcher alone!

Seth Halpern on July 30, 2012 at 5:22 PM

Since for whatever reason, Chief Justice Roberts suddenly switched from anti- to pro- Obamacare, and explicitly permitted what would otherwise be strictly unconstitutional mandates so long as the word “tax” was implied somewhere; the Courts have ceased to be a protection for the Bill of Rights or any other part of the Constitution.

Now any time any member of the government starts talking about restricting any part of the Constitution, it is a direct threat because we no longer have any effective means to peacefully oppose them. [Elections don't count, because judges are appointed for life.]

Subotai Bahadur

Subotai Bahadur on July 30, 2012 at 5:23 PM

Also in the Heller decision was the citing of Common Law rights for keep and bear arms: there was an absolute right for weapons that could be used by an individual but there could be restrictions on crew served weapons. Individuals could still own crew served weapons, but they were restricted to their own property for its use (or other designated places for testing and ranging) and could be called upon to bring them forth against raids, pirates, and the such. You could keep such arms but not bear them as they required more than one person to operate.

Today we devolve much, much more firepower down to the realm of individuals as that is the necessary aspect of modern total war. Over time society has had to come to terms with changes from swords, spears and long arms, to bows and crossbows, to touch-locks, matchlocks, flintlocks, percussion cap, and encapsulated ammunition… from single shot muzzleloaders to Gatling guns to semi-autos and fully automatic arms to modern motor driven Gatling guns (which are, strangely enough, legal to own but heaven help you on ammo costs)… from emplaced grenades and simple thrown grenades to fragmentation grenades to high explosive rocket propelled grenades to semi-auto grenade launchers and fully automatic ones… what is unusual and dangerous in one era is eclipsed in a century, a decade and sometimes mere years or months by new weapons. We allow our police arms and armor that, until just a couple of decades ago would have been considered military equipment because CRIMINALS have no restriction on what they can purchase.

When the police have access to military arms, and they are just ordinary citizens granted special powers but they are NOT a militia, then why should those eligible for a MILITIA have GREATER restrictions upon them? Do police have grenade launchers? Yes, and often beyond just SWAT teams. Do police have access to full auto arms? Yes, and those have migrated from SWAT teams to arms used by individual officers that they have in their cruisers. So if we are comfortable with the police having such things, then why do we restrict the people eligible to be in the MILITIA from these same arms? Everything you see a police officer utilize should be something that a modern militia should have in the way of individuals owning them… keeping them. Restriction to your own property and a firing range for such weapons and practice is reasonable given our history, but do we dare arm up police like the military and restrict the rest of the civilian population from these very same arms and armor?

Do you want to live in a police state, with well armed police and a much less well armed and relatively defenseless civilian population? Just how do you keep government accountable when in such a position? The threat of police action can become an absolute means of intimidation for those seeking power, more power and on the road to absolute power. And because you and your neighbors cannot respond in kind, because we do not TRUST our neighbors as much as our POLICE we then do not have a MILITIA any longer. We have been on this road for decades, and the civilian population is now behind the power curve of arms. That is not a good place to be in, where those in authority can exercise more military power than the population at large… not via the military but by the POLICE. Is anyone really comfortable with that concept?

Restricting use of these ‘dangerous and unusual’ arms is one thing. Restricting ownership, something else again, and it is that part of the problem that now puts us all in danger from those who we authorize to have such arms put to ill use. We as the people are the final and absolute check on government and its power, not the police. To keep our government and its authorized uses of power in our name in check, we must have the civil ownership of horrific arms because our liberty and freedom are in danger if we do NOT have such a right. For some weapons you can restrict the bearing of them… but not the ownership when we authorize POLICE to have and use them. The greater capacity of such arms hasn’t changed the trust equation one, little bit. In fact, just the opposite, it makes the access to them a vital check on human nature in government.

ajacksonian on July 30, 2012 at 5:23 PM

It’s a bad time to be a Conservative. Chief Justice John Roberts rewrites legislation for the Democrats, Justice Scalia is on television begging for gun control and Dick Cheney launches a pointless and false attack on one of the most popular and hardest fighting Republicans in America.

Tighten your seat belts it’s going to be a rough ride.

RJL on July 30, 2012 at 5:24 PM

I guess this rules out having our own “personal nuclear deterrent”.

Blaise on July 30, 2012 at 4:44 PM

NERF Nuke?

catmman on July 30, 2012 at 5:24 PM

The 2nd amendment is intended to allow the people to guard against or free themselves from tyranny. If the government can regulate the 2nd amendment so that it is no longer a useful deterrent against tyranny than tyranny wins. I hope Scalia isn’t suggesting that people don’t have a right to be armed to the extent that the tyrants fear them, because if so I believe he’s mistaken.

FloatingRock on July 30, 2012 at 5:25 PM

I’m hoping it never EVER comes down to that.

WolvenOne on July 30, 2012 at 5:21 PM

It won’t.
People are too soft & cowardly.
A tragedy of Biblical proportions is going to have to happen to wake Americans from their protected little slumber.
Losing their rights is not enough. They’ll really have to be stomped on physically to revolt like that.

Badger40 on July 30, 2012 at 5:25 PM

Badger40 on July 30, 2012 at 5:17 PM

How COULD you forget fresh fruit?!!!

annoyinglittletwerp on July 30, 2012 at 5:25 PM

How about banning the dangerous and unusual bosom of a progressive? It’s used to hug hundreds of millions of people to death.

Axe on July 30, 2012 at 5:26 PM

The 2nd amendment is intended to allow the people to guard against or free themselves from tyranny. If the government can regulate the 2nd amendment so that it is no longer a useful deterrent against tyranny than tyranny wins. I hope Scalia isn’t suggesting that people don’t have a right to be armed to the extent that the tyrants fear them, because if so I believe he’s mistaken.

FloatingRock on July 30, 2012 at 5:25 PM

When you consider that the right shall not be infringed, and you consider the meaning of the word infringe, it’s not hard to realize that everything this guy said is UnConstitutional.
IT doesn’t matter if you agree people sohuld be able to have rocket launchers.
The 2nd amendment says the right to bear ARMS shall NOT be infringed.

It’s effing obvious, but people are willing to sell their liberty.

Badger40 on July 30, 2012 at 5:27 PM

Now, Paul, only use the family atomics if the Baron is nearby, or possibly Feyd-Rautha.

john1schn on July 30, 2012 at 4:54 PM

Sting’s best movie…

Seven Percent Solution on July 30, 2012 at 5:27 PM

What do you think of federal CCW permit?

Capitalist Hog on July 30, 2012 at 5:19 PM

I think it would be unconstitutional as a requirement to conceal carry.

I think it would be constitutional were it something you automatically get after receiving a state CCW. Something that streamlines the reciprocity that many states already practice, or maybe even forces gun grabbing states to respect out of staters right to carry under their current state resident privileges. Similar to states recognizing all states driver’s licenses when visiting a state not your own.

NotCoach on July 30, 2012 at 5:27 PM

Badger40 on July 30, 2012 at 5:16 PM

My parents were Midwest reps. for Clan Wallace USA and my dad bought it @ an antiques vendor that was @ a Highland Games.

annoyinglittletwerp on July 30, 2012 at 5:28 PM

How COULD you forget fresh fruit?!!!

annoyinglittletwerp on July 30, 2012 at 5:25 PM

LMAO! Me & one of the kids was just watching that movie a coupla days ago. I own it.

Badger40 on July 30, 2012 at 5:28 PM

There’s nothing in the Constitution and Bill of Rights that states that people have a right to be armed only to the extent that the government is comfortable with. The entire point of the 2nd is that the government is supposed to fear the people, not the other way around.

FloatingRock on July 30, 2012 at 5:28 PM

So if we are comfortable with the police having such things, then why do we restrict the people eligible to be in the MILITIA from these same arms? Everything you see a police officer utilize should be something that a modern militia should have in the way of individuals owning them… keeping them. Restriction to your own property and a firing range for such weapons and practice is reasonable given our history, but do we dare arm up police like the military and restrict the rest of the civilian population from these very same arms and armor?

ajacksonian on July 30, 2012 at 5:23 PM

Well said. But they’ll tell you the Guard is the militia now, so the militia argument is mute. (I’m not making that argument.)

Axe on July 30, 2012 at 5:30 PM

Badger40 on July 30, 2012 at 5:28 PM

Fresh fruit doesn’t scare me…I’m a produce clerk.
*looks fierce*

annoyinglittletwerp on July 30, 2012 at 5:32 PM

It’s too bad that Fast and Furious smuggled weapons to drug gangs instead of responsible citizens of Mexico who could have put them to good use.

FloatingRock on July 30, 2012 at 5:33 PM

novaculus on July 30, 2012 at 5:06 PM

Ditto and also if Scalia isn’t careful answering the question he opens himself up to charges of having already made up his mind when the next 2nd Amendment case gets there. He’s wise to not “try” an issue on TV or in public.

cartooner on July 30, 2012 at 5:33 PM

annoyinglittletwerp on July 30, 2012 at 5:28 PM

Very cool.
My paternal side is Orr & Alexander. They ran bleaching greens in Ulster. But they were lowland before they came to Ulster. The Alexanders, I believe though, were Highland.
And that line of mine eventually goes back to deBrus/Bruce.
Perhaps this is why I love lost causes & causes against all odds.

Badger40 on July 30, 2012 at 5:33 PM

I watched the interview and Scalia’s position seems well though out. He talked about looking at laws that were on the books at the time the amendment was written.

He mentioned laws against “frighting” from around the time the 2nd amendment was adopted. This prevented people from walking around with a big scary axe used simply to scare others. So the implication is that there were restrictions on arms at the time the amendment was written and that similar restrictions then should still apply to today’s weapons.

I think this is being blown out of proportion.

I like Scalia after this interview. I had never had the opportunity to see him speak publicly prior to this. I think he made well thought out responses to the questions. I especially liked his knock on Obama calling out the SC justices during the SoTU without directly knocking Obama. Classy, witty, and a true constitutional scholar.

weaselyone on July 30, 2012 at 5:34 PM

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.

Holder

Schadenfreude on July 30, 2012 at 5:35 PM

Well said. But they’ll tell you the Guard is the militia now, so the militia argument is mute. (I’m not making that argument.)

Axe on July 30, 2012 at 5:30 PM

I confess I’m ignorant on that. Militia was once traditionally considered all able bodied men available for service.

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.[

So in reality, the way we have things, you do not need to be active in the militia for that right to be pertinent.

Badger40 on July 30, 2012 at 5:36 PM

I was joking. I’m considering something more like a ladies-cut revolver.

annoyinglittletwerp on July 30, 2012 at 5:09 PM

.

I knowwwww you were joking

I highly recommend one of these – we bought one for my wife two weeks ago:

http://grabagun.com/smith-wesson-bdygrd-38spl-5rd-1-9-bl-lsr-ma.html

My son likes it so much he has it on his wish list.

PolAgnostic on July 30, 2012 at 5:38 PM

He mentioned laws against “frighting” from around the time the 2nd amendment was adopted. This prevented people from walking around with a big scary axe used simply to scare others. So the implication is that there were restrictions on arms at the time the amendment was written and that similar restrictions then should still apply to today’s weapons.

weaselyone on July 30, 2012 at 5:34 PM

It was not restricting their ownership. Only the brandishing of them in a certain way.
Ownership shall not be infringed.
And yet, with all these laws restricting what you can buy, how it can be bought, etc. are all infringements.

Badger40 on July 30, 2012 at 5:39 PM

Probably thinking along the lines of a ‘cane gun’, ‘blowgun’ or even ninja ‘throwing stars’.

GarandFan on July 30, 2012 at 5:15 PM

Or a scary AR-15 with a 100-round Beta C-mag. Believe it!

Solaratov on July 30, 2012 at 5:42 PM

Is this why I can’t pick up a rocket launcher in Target?

changer1701 on July 30, 2012 at 4:47 PM

You can’t get even toy guns in Target. Or Toys R Us.

Well, Nerf. But nothing that looks remotely realistic, or makes a “bang” sound.

TexasDan on July 30, 2012 at 5:44 PM

Militia was once traditionally considered all able bodied men available for service.

Badger40 on July 30, 2012 at 5:36 PM

Agreed.

Axe on July 30, 2012 at 5:44 PM

The entire reason for the existence of the 2nd Amendment was to give the populace the means with which to violently overthrow the government.

The men who fired on the British at Lexington and Concord? Yeah – the Brits were coming to take their guns away.

Helps keep this in perspective.

Washington Nearsider on July 30, 2012 at 5:47 PM

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.

Amen, Allah, amen.

Minorcan Maven on July 30, 2012 at 5:48 PM

It was not restricting their ownership. Only the brandishing of them in a certain way.
Ownership shall not be infringed.
And yet, with all these laws restricting what you can buy, how it can be bought, etc. are all infringements.

Badger40 on July 30, 2012 at 5:39 PM

Point taken on ownership. The fact still is that there is a history of gun restrictions at the time of the 2nd amendment. I am unaware of restrictions against owning any weapons during that timeframe, but that is what Scalia will look to. I am ok with that. It is logical that similar restrictions could apply today.

On a side-note, your comment about brandishing a weapon in a cerain way made me think of someone trying to conceal and carry a 6′ battle axe when they were considered “frighting” weapons. I had to chuckle.

weaselyone on July 30, 2012 at 5:54 PM

Is this why I can’t pick up a rocket launcher in Target?

changer1701 on July 30, 2012 at 4:47 PM

Does the right to keep and bear arms accomodate rocket launchers or would they be considered “ordnance”?

I thought I read that back in the time of the 2nd amendment that arms were guns etc, and ordnance was cannons etc. Anyone else have any more info on this or maybe a link?

This would be a tough one for Scalia. He mentioned the “bear” portion, that you have to be able to carry the weapon, so a straight up comparison to how they handled canons back in the day wouldn’t work. There probably was no portable weapon of that nature back then, so this is where I think the regulation of ordnance may fall into.

weaselyone on July 30, 2012 at 5:58 PM

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

What is a dangerous gun?

Guns are inherently dangerous, just like power tools and vehicles.

And what is an unusual gun?

I read that the AR-15 is the most popular rifle in the US right now.

Scalia has opened up a ridiculous can of worms.

Just what we need right now.

Good grief.

molonlabe28 on July 30, 2012 at 6:02 PM

I wish these justices would shut the h-ll up and just do
their jobs.

Amjean on July 30, 2012 at 5:03 PM

There be the rub. They actually think they are doing their jobs.

Snake307 on July 30, 2012 at 5:05 PM

They need to protect and defend the constitution, not be blabbing
on television. When Roberts gets back from Malta, I suppose we
will be subjected to his blathering on and on about why he
betrayed all of us.

Nothing should be banned as far as weapons unless they are
military grade, rocket launchers for example.

As far as banning other types of guns, did your grandparents ever use the term, “give them an inch and they will take a mile”?

Amjean on July 30, 2012 at 6:05 PM

I confess I’m ignorant on that. Militia was once traditionally considered all able bodied men available for service.

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.[

So in reality, the way we have things, you do not need to be active in the militia for that right to be pertinent.

Badger40 on July 30, 2012 at 5:36 PM

Short form, under what was the Militia Act, and still exists as part of the US Code [10 USC § 311 and later 32 USC § 109].

The “Organized Militia” of the United States consists of the National Guard and Reserves.

States are allowed their own militias, which are independent of Federal control and cannot be called up for Federal service. There are 23 of them and they are titled “State Guards” or “State Defense Forces”.

http://www.sgaus.org/

The “Unorganized Militia” of the United States consists of all males 17-45 who are US Citizens or foreign nationals who have declared an intent to become US Citizens; and who are NOT Federal employees and who are not members of the Organized Militia. They shall report when summoned with weapons of military utility.

Court decisions modify statutes. The original Militia Act was the second law passed by Congress [The first was, tellingly, a pay raise for themselves.] Given the statutory changes in the role of women in the Armed Forces, if challenged I would assume the gender barrier would fall. Similar changes in statutes regarding age discrimination would presumably raise the top age to at least 55.

Subotai Bahadur on July 30, 2012 at 6:08 PM

ajacksonian on July 30, 2012 at 5:23 PM

+1000

Hope you don’t mind if I steal this. I’m a regular reader of your blog too, BTW.

Dunedainn on July 30, 2012 at 6:08 PM

On a side-note, your comment about brandishing a weapon in a cerain way made me think of someone trying to conceal and carry a 6′ battle axe when they were considered “frighting” weapons. I had to chuckle.

weaselyone on July 30, 2012 at 5:54 PM

Makes me chuckle when the TSA finds nail clippers scary.

Badger40 on July 30, 2012 at 6:10 PM

Sorry. When your first post lambasts “ABR trolls”, there’s nothing else you could possibly be.

Dunedainn

When your first post is whining about criticism of ABR trolls, you might be one of the ABR trolls the other poster was referring to.

The 2nd amendment says the right to bear ARMS shall NOT be infringed.

It’s effing obvious, but people are willing to sell their liberty.

Badger40

See, the thing is, you’re not a lawyer, so you’re not qualified to understand the constitution. You have to be indoctrinated in liberal law schools to have that capability, or so that’s what one esoteric lawyer told us yesterday, lol.

xblade on July 30, 2012 at 6:11 PM

Subotai Bahadur on July 30, 2012 at 6:08 PM

Thanks for the info.
It’s still so interesting to me how the Amendment is worded, the right of the people.
Can’t really get around that.

Badger40 on July 30, 2012 at 6:12 PM

See, the thing is, you’re not a lawyer, so you’re not qualified to understand the constitution. You have to be indoctrinated in liberal law schools to have that capability, or so that’s what one esoteric lawyer told us yesterday, lol.

xblade on July 30, 2012 at 6:11 PM

I find that amusing. When considering the history of our founding, that was just the opposite of what our Founders believed.

Badger40 on July 30, 2012 at 6:14 PM

xblade on July 30, 2012 at 6:11 PM

So you’re a member of the cult too, I take it?

Dunedainn on July 30, 2012 at 6:14 PM

He’s telling you flat out that states can still ban weapons for being “dangerous and unusual.”

They can have my Illudium PU36 Space Modulator when they van pry it from my cold dead fingers..

HotAirian on July 30, 2012 at 6:17 PM

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