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.