Scalia's Absurd Take On Gun Control (Again)

In light of the July 20 massacre in which a gunman killed 12 moviegoers in Colorado, Scalia was asked whether legislatures could ban the sale of semiautomatic weapons. He said the 2008 [Heller] ruling stated that future cases will determine "what limitations upon the right to bear arms are permissible. Some undoubtedly are."


Scalia -- a proponent of the idea that the Constitution must be interpreted using the meaning of its text at the time it was written -- cited "a tort called affrighting" that existed when the Second Amendment was drafted in the 18th century making it a misdemeanor to carry "a really horrible weapon just to scare people like a head ax."

"So yes, there are some limitations that can be imposed," he said. "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."

From here.

What did the United States ever do to deserve a Supreme Court justice who thinks that it might be constitutional to ban carrying a head ax, but thinks banning a handheld rocket launcher that can bring down an airplane might be a hard question?  And, why would a Supreme Court justice reach the linguistically inaccurate assumption that "bearing arms" in this context means literally carrying them by hand?


To restate my own view on the matter, I think that any coherent modern individual right to bear arms under the Second Amendment cannot properly to be viewed as a political right incident to the collective right of the People to replace their governments by revolution as expressed in the Declaration of Independence, in scenarios like the one currently unfolding in Syria.  The constitution is not a suicide pact.  It also simultaneously declares that taking up arms against the United States or a State constitutes the crime of treason punishable (then at least) by death (although no longer working a "corruption of blood").


Instead, the most sensible theory of an incorporated individual right to bear arms under the Second Amendment is that it is the flip side of the absence of an affirmative duty in American law on the part of the state to protect an individual from private violence. 


In other words, it is an imperfect alternative to governmental indifference or delay in the face of rapists, murders, robbers, homoe invasion burglars, lynch mobs and the like, without regard to whether the cause of law enforcement inaction in inability, negligence, or deliberate indifference to a person's safety.  By its own reference to a well regulated militia, it implies that reasonable regulation of the right to bear arms is permissible, and the courts should analyze reasonableness in the context of backstopping the ability of individuals to protect themselves from private violence in the face of potential law enforcement inaction.  The reference to a militia in this context also dovetails with the notion that in the 18th century volunteer citizen's patrols, sometimes called militias, rather than professional police departments that would not be invented for another half a century at least, were a central institution for the enforcement of criminal laws.


This theory of the Second Amendment still leaves many hard cases related to the issue of what regulation is reasonable.  But, it at least provides an intelligible way of weighing the relevant considerations in the modern era, that does not rely on esoteric accounts of the detailed state of the common law and statutory law in 18th century colonial America, and respects the values that makes sense in the large individual human rights oriented interpretation that we have given to the Bill of Rights as a whole over two centuries (well mostly the last century, before which the Bill of Rights was mostly ignored as a means to declare laws unconstitutional) of interpretation.  The Constitution was kept short, in part, in order to retain flexibility that wouldn't keep our political system hidebound by the kind of accidental and long forgotten precedents that Scalia puts so much stock in under his crabbed version of originalism.


Yes, the intent of the Founders is relevant to the analysis of the meaning of the constitution, but a drafters intent analysis ought to be conducted at a much higher level of generality.  Judges should be trying to discern from the Founders statements and the overall context, the core principles behind a constitutional provision, rather than minutae of how cases that could never have come up then would have been decided by those particular people at that particular time.  Originalism also needs to recognize that not every law and common law decision in force in 1791 was necessarily constitutional even then under the newly adopted Bill of Rights, which marked a revolutionary step in law making and not simply a rubber stamping of the status quo.  It was adopted because the Founders were concerned that the 1789 status quo might be flawed.  The Bill of Rights was adopted because the Founders felt that some of the rights it protected could be in the near future, or already were being, violated by the new federal government of the independent and united States who had adopted the new constitution in 1789 that replaced the Articles of the Confederacy (not to be confused with the Confederate States of American in 1861) that had preceded it. 


The nation was just a quarter century old at the time, and no one was thinking about how the exact language its provisions might apply in a science fiction future where a man could fly, or another man could hold in his hands a weapon that might shoot hundreds of people out of the sky, two centuries later.  Even mass produced semi-automatic or revolving pistols were far in the future at that point.


This isn't to say that the Second Amendment should exclude any weapon that didn't exist at the time of the Founding, but the opposite assumption makes no more sense.  The issue is why the Founders thought it made sense have the Second Amendment, and why the drafter of the 14th Amendment under the authority of which the Second Amendment is applied to the states felt it was necessary to expand the scope of federal power over state law in the 1860s, not what its specific scope the Second Amendment was believed to have in 1791.