Scalia's 2nd Amendment Punt

"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." --The Second Amendment to the Constitution.

Now we finally know what this Amendment means. The Supreme Court's five conservative justices have just ruled that we all have a constitutional right to own a gun.

So there it is, all of the NRA's dreams come true in one mighty legal swoop. I can just imagine Charlton Heston's cold, dead hands raised in elated celebration.

And to make it even sweeter, the majority opinion was written by Justice Antonin Scalia, the very justice who offers himself up as a strict constructionist. His ruling would undoubtedly be grounded in originalism and of such logical purity that no one could suggest that it had sprung from a personal ideological or political bent.

Funny, though, how the court's four liberal justices vigorously dissented, reading history and precedent quite differently and finding that the Second Amendment proclaimed a collective right protecting state militias.

Of course, they lost and Scalia's opinion is now law. So it's worth a walk through Scalia's logic constraining federal gun-control efforts, to see if it holds.

In District of Columbia vs. Heller, the court reviewed a district law barring the possession of handguns, even in one's home, and directing that rifles be dismantled or sport trigger locks. The court struck this down as unconstitutional.

In his analysis, Scalia spent a great deal of time laying out the historical underpinnings of the Second Amendment. Beyond the right of self-defense, Scalia declared that the framers viewed the right to bear arms as a check against an overbearing federal authority. Having just come through their own need to toss off the oppressive government of King George III, the framers thought it essential to empower a citizens' militia. "(W)hen the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny," Scalia explained.

But if that's true, and the Second Amendment grants citizens the capacity to revolt against usurpations by government, then doesn't it follow that they have the right to the weapons needed to do so? Doesn't this logic lead us to an individual right to a nuclear device? How else to challenge an American government run amok? Or, if not so great a weapon of mass destruction then at least an assault rifle, the very basic outfit of any revolution.

No dice, Scalia says, in full punt mode. Scalia claims that the individual right to bear arms does not include "M-16 rifles and the like" because it covers only those weapons "in common use at the time" of the amendment's adoption in the 18th century and not "dangerous and unusual weapons."

First, all weapons are dangerous -- it's sort of the point. Second, if citizens in a militia -- or a person protecting his home from a robber -- is to have any chance today they must be armed with something better than a flintlock musket.

Not to worry, says Scalia, because the Second Amendment includes all modern advances of "bearable arms" even if they "were not in existence at the time of the founding." But not military-type arms.

There is no cohesive logic here. The Second Amendment's prefatory clause must mean something, at least granting individuals the right to weapons that a modern militia would carry. Scalia accepts an updating of the Constitution relative to weapons needed for defending oneself against a home invasion but not against government tyranny. That's pretty result-oriented judging and not terribly strict to any original construction.

The Second Amendment has always put me in a quandary since the framers' purposes for it inevitably leads to an open floodgate of weapons ownership. But Scalia's opinion was not an honest attempt at sorting this out. It was a sophistical, political decision of just the type that he rails against.

Why am I not surprised?

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Comments

[montestruc]

1 -- Numerous times since the introduction of nuclear weapons lightly armed forces, in some cases 100% militia, have run off nuclear armed powers. Examples include Vietnam, Afghanistan, Somalia, and Lebanon. Clearly it is not necessary to be armed with nuclear weapons to pose a creditable deterrent to a would be tyrant.

2 -- Laws against machine guns are more a statement about the ignorance of legislators and gun control advocates than a serious restraint on the military capability of the people. Witness that in close house to house fighting the USMC in Iraq has shown a strong preference for totally legal 12 gauge shotguns over full auto M-16s. In fact the US military modified the design of the M-16 to eliminate full auto, now it is either semi-auto or fires a three round burst per trigger pull. Only when we start to consider long range crew served weapons (belt fed tripod mounted machine guns) does this become an at all meaningful issue.

3 -- I expect that Scalia is fuming about the logical inconsistencies of the ruling more than you. I am pretty sure they were necessary to get Kennedy to sign on.

[djkrlsn]

The Heller case answered the questioned posed in this case-- namely is there an individual right to own (or keep arms)--and per SCOTUS, the answer is yes. Logical next steps is to get the right to keep arms "incorporated" as well as the right to bear arms. The "common arms" point is not what arms were common for the founding fathers, but what is common now--so the laws banning AR15's and AK's in Cali and other places are emphatically due for a challenge, especially since they function no differently than common hunting rifles. I don't know about the rest of you, but "reasonable regulation" of a Constitutional right has to be narrowly focused on the criminal with minimal effect on the law abiding, can not discriminate on basis of physical ability or ability to pay, and the regs must be proven to actually reduce crime.

[Sneaky]

Erm... you missed the final score, Mr. Blumner. It was 4 justices who did not find the D.C. laws unconstitutional and 5 justices who did find the D.C. laws unconstitutional. All 9 justices were supportive of the individual right to keep and bear arms. It was how that right was exercised in relation to the District of Columbia laws that was disputed..­.

[Cathexis]

I don't see it as a "punt" at all. More like a flagrant twisting in order to rationalize a conclusion that is already held.

[djkrlsn]

Since the people" and the "militia" are identical what is unclear about "the right of the people to keep and bear arms shall not be infringed"--and since the meaning is clear no twisting is required

[TerroristManGonnaGetYa]

Very dire Straits: I Want My M-16

[woodsywizz]

The Founders foresaw need for both 'organized' and 'unorganized' militias. The former was later regularized as State Guards and then as the National Guard.

The 'unorganized' militia comprises people of good will prepared to defend their own and their neighbor's properties. Just like when a barn catches fire, and all the neighbors rush over to fire-fight, gather up frightened livestock, and help rebuild.

The 'well-regulated' clause allows for control of the types of weapons, also for licensing and registration. Further I believe it allows for forbidding weapons in certain locations such as airiports.

Scalia may be a political hack, but I believe he steered between Scylla and Charybdis. Perhaps inadvertently.

Individual right of self-defense is one of the basic premises of civilization. Talk of fighting the State, or attempting its overthrow, is a red herring.

[djkrlsn]

Another red herring is the claim that the Second Amendment covers nuclear weapons, WMD's and preschoolers packin' guns in their backpacks

[Chuckbutcher]

That's how to do it, put up a specious argument, nukes, and kick the snot out of it. Bearing arms has meant small arms ever since the 2nd was written. Small arms are more than sufficient to create the cold war MAD (mutually assured destruction) with a "tyrannical" government. You conveniently ignore the machine gun tax act which places certain restrictions on full automatic weapons without banning them. In fact, you beat a dead horse, enthusiastically. Odd arguments for an accomplished lawyer, unless simple "winning" is the only objective.

[bgregs]

There weren't really any LARGE arms at the time, unless you mean smoothbore cannon??

[djkrlsn]

64 pound roundshot from a muzzle loading cannon may not penetrate a tank--but it sure would mess up any non armoured military vehicle--and if you load it with canister--very effective.

[CCW4ME2]

To better understand the Second Amendment to the United States Constitution it is helpful to consider how almost every reasonable person would interpret this amendment if it did not involve something which is considered controversial or politically incorrect by some and idolized by others. Arms in the possession of ordinary citizens meet both criteria. Let's, for the sake of argument, suppose that the Second Amendment dealt with books, not arms or weapons, and read like this: "A well educated electorate, being necessary to the maintenance of a free State, the right of the people to own and read books, shall not be infringed.­" Does anyone really believe that liberals would claim that only people who were eligible to vote should be allowed to buy and read books? Or that a person should have to have voted in the last election before the government would permit him or her to buy a book? Would the importation of books be banned if they did not meet an "educational purpose" test? Would some States limit citizens to buying "one book a month"? Would inflammatory "assault books" be banned in California?

There is NO requirement to be a member of a Militia to have the RIGHT to keep and bear arms. However, the more people who DO, the better the security of the state.

[JimR]

Good analogy.

I am not a gun owner, but I have no problem with that ruling, and I honestly don't understand the furor over it. In the middle of the DC handgun ban, in the early 90s, DC was the murder capital of the United States. So much for reducing crime.

[Doofus]

Under Title 10 of the US Code, EVERY 'able-bodied adult'
male is considered to be a militia member. That ought to
make you feel pretty secure.

More guns = more security? Just about every day, kids in
Boston are shot, if not by people aiming at them, then by
people who aren't. If guns are too prevalent in DC (or
elsewhere) despite stringent gun laws, it has much to do
with too lax gun laws in surrounding areas. For Boston,
that's NH. For DC, it's VA.

[djkrlsn]

Doofus--then why are the violent crime rates far lower in Virginia and New Hampshire than they are in Washington DC and Boston?

[molonlabe]

Got any citations to substantiate your strawman contagion theory? Because I have one which retutes it:

Moorhouse: I found absolutely no support that gun control laws reduce crime rates. And crime rates, we looked at property crime, violent crimes — ten categories of crimes — and in not one of them did we find any impact of gun control, nor did we find that there was this contagion effect. That is, that a neighboring state with weak gun control laws seemed to have no effect on crime rates in the primary states.

http://www.carolinajournal.com/exclusives/display_exclusive.html?id=3628

Try again.