Justice Scalia is out promoting his new book and making some interesting statements along the way. He was on Fox News on Sunday morning and one of the things he said debunks some of the idiotic talk we’ve heard from Republicans about how Obama supposedly intimidated the court into upholding the health insurance mandate:
Scalia brushed off Obama’s comments aimed at the court regarding the healthcare law and a campaign finance ruling.
“What can he do to me? Or to any of us?” Scalia said. “We have life tenure and we have it precisely so that we will not be influenced by politics, by threats from anybody.”
Which was obvious from the start. He also talked about gun control:
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 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.”
He’s actually right about that. The 2008 ruling does leave such questions open. That ruling said that there is an individual right to own guns, but that this right is not unlimited. I think it’s pretty obvious that even with the current conservative-leaning court, most gun control laws — waiting periods, background checks, etc — will be upheld as constitutional. And I doubt anyone would even bring a suit claiming a right to own a rocket launcher, but they would lose very quickly in court.
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Gregory in Seattle
August 2, 2012 at 12:07 pm (UTC -4) Link to this comment
By commenting on possible future cases, isn’t he recusing himself from those cases?
steve84
August 2, 2012 at 12:13 pm (UTC -4) Link to this comment
Am I the only one frightened by a sitting a Supreme Court judge giving television interviews and using his position to drum up publicity for his personal profit?
Area Man
August 2, 2012 at 12:17 pm (UTC -4) Link to this comment
PZ had a thread about this a few days ago. The hyper-literalism about “bearing arms” is bizarre and doesn’t even make sense in the context of originalism, assuming that’s where Scalia is coming from.
I don’t think there is any way to get around the idea that you ban weapons because they are dangerous to people and lack any social utility (“Hey y’all, watch this!” doesn’t count for much), which makes it almost impossible to draw a bright line between what is or isn’t permissible.
Stevarious
August 2, 2012 at 12:22 pm (UTC -4) Link to this comment
Yeah it’s weird, and they are weirdly inconsistent about the principle, too. I mean, it’s obvious to anyone with an iota of history knowledge that ‘to keep and bear arms’ when written meant flintlock muskets, rifles, and pistols. To go beyond those weapons is to extend the law beyond the ‘original meaning’ of the text.
daved
August 2, 2012 at 12:36 pm (UTC -4) Link to this comment
Boy, those remarks are really going to bum them out down at Joe’s House O’ Rocket Launchers.
Michael Heath
August 2, 2012 at 12:38 pm (UTC -4) Link to this comment
Justice Scalia’s Matter of Interpretation, which Scalia wrote several years ago, is one of the best books on the Constitution I ever read. I learned a lot, specifically because he had different experts championing varying interpretative techniques each write a chapter.
He also added a chapter by one expert benchmarking our Constitution against Germany’s current Constitution; which was developed after WWII. That revealed why we have so many unproductive debates on the U.S. Constitution’s meaning and why it doesn’t have to be that way; that one can construct a far more unambiguous Constitution.
It’s ironic that I concluded how defective J. Scalia’s textualist approach was by reading his book promoting and defending his approach to textualism. His approach was to effectively champion textualism only when it was politically expedient to do so and abandon it when it wasn’t. Where his defense against the detractors in his own book was, I thought, self-evidently weak.
Having learned his approach in that book, I then began to also realize what a great justice John Paul Stevens was given his ability to out-Scalia Scalia when it came to providing originalist/textualist opinions while also providing more comprehensive opinions which I thought did a far better job of analyzing the information, creating a far superior sufficient set of premises, and therefore making it easier for J. Stevens to arrive at wiser conclusions.
John Pieret
August 2, 2012 at 12:39 pm (UTC -4) Link to this comment
Scalia has actually said that the 14th Amendment doesn’t apply to discrimination based on sex or sexual orientation because, at the time, the people who voted for it didn’t contemplate that. Then why did he agree that the right to own automatic hand guns and revolvers is protected under the 2nd Amendment when all anyone at the time was considering was flintlocks and swords? And what’s that business about “bearing” arms? Private individuals owned cannons at the time and mounted them on their private vehicles (ships) and the government even sanctioned them as militias (privateers) to help fight wars.
“Original intent” just means “Scalia’s intent.”
steve84
August 2, 2012 at 12:44 pm (UTC -4) Link to this comment
When scrutinizing the original intent it’s also important to consider what “well regulated militia” means. People weren’t supposed to have weapons just for their own personal enjoyment. There was no standing arming at the time, so people were supposed to have their own weapons in case they were called up for military service. A practice that was standard for thousands of years until the Romans introduced a professional army under Marius. Even long after that, standing armies were unusual because they were too expensive and unnecessary for countries that weren’t always at war.
Zinc Avenger (Sarcasm Tags 3.0 Compliant)
August 2, 2012 at 12:52 pm (UTC -4) Link to this comment
If we can’t individually own enough firepower to conquer a nation the size of Belgium, are we truly free?
jaxkayaker
August 2, 2012 at 12:58 pm (UTC -4) Link to this comment
When nuclear explosives can be reduced to the size of a briefcase, will it be legal to own and bear a nuke, as long as you don’t use it, except in cases of self-defense?
d cwilson
August 2, 2012 at 1:00 pm (UTC -4) Link to this comment
Scalia’s judicial philosophy in a nutshell: I’m a textualist when it supports my conservative ideology. When it doesn’t, I’ll make up some other excuse.
chilidog99
August 2, 2012 at 1:05 pm (UTC -4) Link to this comment
If I am not mistaken justices can be impeached by Congress.
wscott
August 2, 2012 at 1:15 pm (UTC -4) Link to this comment
@ Scalia
steve84
August 2, 2012 at 1:24 pm (UTC -4) Link to this comment
@jaxkayaker
Scalia already said that it’s up for debate whether people can own handheld rocket launchers.
I’d like to own a M-28/29 Davy Crockett nuclear recoilless rifle:
http://en.wikipedia.org/wiki/Davy_Crockett_%28nuclear_device%29
rickdesper
August 2, 2012 at 1:37 pm (UTC -4) Link to this comment
@1
That rule only applies when talking to Congress. Also, it expires two months after being sworn in.
@12
Scalia was talking about Obama, not about Congress.
@13
No, there is no Constitutional right to own cars. That’s not the same as saying you have no “legal right” to own cars. You have a legal right to own cars, but that right can be taken away by the legislature. The legislature cannot do the same thing to your right to own guns (at least not in such a sweeping fashion).
More generally, I found both sides of the blame/credit Obama for the SCOTUS ruling to be bizarre. I saw some people crediting Obama for “demanding that SCOTUS hear the case now” as if that means anything.
keithb
August 2, 2012 at 2:18 pm (UTC -4) Link to this comment
steve84, jaxkayaker:
You can see the Davy Crocket and other similar hand-carryable explosives (Such as satchel charges for commandoes) at the National Nuclear Science Museum in Albuquerque:
http://www.nuclearmuseum.org/
TGAP Dad
August 2, 2012 at 2:22 pm (UTC -4) Link to this comment
I will preface my remarks by emphasizing the fact that I am not an attorney, and will graciously accept correction and criticism from someone who is. I still think (the conservative majority of) the court got this one (Heller) wrong. As I understand it, the (supreme) court had not before interpreted the phrase “the people” as referring to individuals, but had instead interpreted it as referring to states, which was appropriate as used within its historical context. The second amendment enumerates this right by asserting its necessity to a “well regulated militia.”
However, since the court HAS ruled that individuals have the right to “keep and bear arms,” it seems to beg the question of just WHY can’t I have a minigun? Or a garage full of shoulder-fired rocket launchers? Or a daisy cutter? It seems like Scalia takes such a broad interpretation of the “well regulated militia” clause, then about-faces into hyper-narrow interpretation of the “keep and bear arms” clause. Doesn’t “bear arms” mean “having them at your immediate disposal?” Or maybe “wield arms?” Are drone pilots not “bearing” their armaments? Does a tank commander not “wield” his M1A1 Abrams?
It sounds like a court’s worst nightmare, having to consider the characteristics and capabilities of each model of weapon, and judge whether or not it passes second amendment muster, then having to justify it with precedent and legal reasoning.
Dennis N
August 2, 2012 at 2:37 pm (UTC -4) Link to this comment
I’m not really concerned about gun laws going to SCOTUS. I’m more concerned about the fact that it’s politically impossible to pass any gun laws in the first place.
kermit.
August 2, 2012 at 4:00 pm (UTC -4) Link to this comment
While the second amendment clearly uses a well-regulated militia as justification for a right to bear arms, the fact that the militia and the general population were the same then means that we should be cautious about claiming this does not apply to individuals. Since the constitution was written by people whose concept of militia encompassed both our concepst of standing army and the general population, I see no obvious way to separate them.
I wonder if Scalia supports freedom of the press for media such as TV, radio, and the internet? The founding fathers clearly did not have such in mind when they discussed “the Press”.
kermit.
August 2, 2012 at 4:09 pm (UTC -4) Link to this comment
TGap Dad: It sounds like a court’s worst nightmare, having to consider the characteristics and capabilities of each model of weapon, and judge whether or not it passes second amendment muster, then having to justify it with precedent and legal reasoning.
I don’t think even Scalia is that silly. Surely he was discussing not a particular model, but rather general categories of hand-held weaponry (since he thought they had to be literally bearable – weird!) I grew up in a gun culture 50 years ago. My dad and his buddies had no problems with hand grenades, full automatics (machine guns), and bazookas being illegal. Perhaps as members of the WWII generation, they wanted to be armed, but had nothing to prove. [shrug]
I do think the categories – not models – could use some clarification.
Super large (e.g. 100 round) magazines?
Full automatics?
Explosives (e.g. hand grenades?
That sort of thing. If Scalia thinks that defending ourselves against a tyrannical government is the correct interpretation of the 2nd, then heat-seeking missiles are the way to go. But only as long as we can pick it up and carry it O_o
Modusoperandi
August 2, 2012 at 4:45 pm (UTC -4) Link to this comment
Area Man “I don’t think there is any way to get around the idea that you ban weapons because they are dangerous to people and lack any social utility (‘Hey y’all, watch this!’ doesn’t count for much), which makes it almost impossible to draw a bright line between what is or isn’t permissible.”
But then what would Ted Nugent wave about on stage? Oh, woe, won’t someone think of the Nuge?!
rickdesper “@13 No, there is no Constitutional right to own cars…”
What if I put a gun on it?
DaveL
August 2, 2012 at 4:52 pm (UTC -4) Link to this comment
I’m not a lawyer either, but I’m pretty sure you’ve got this completely wrong. The wording of the 9th amendment would be the reduction ad absurdum of that reasoning, as it would declare that any powers that the constitution does not delegate to the federal government and also denies to the various states belong, paradoxically, to the states.
DaveL
August 2, 2012 at 4:53 pm (UTC -4) Link to this comment
Sorry, that would be the 10th amendment.
Doug Little
August 2, 2012 at 4:56 pm (UTC -4) Link to this comment
keithB,
Holy shit I didn’t even know about the Davy Crockett. What the fuck was the US thinking, they made 2100 of those things. A hand fired tactical nuclear weapon, the mind boggles.
Michael Heath
August 2, 2012 at 5:09 pm (UTC -4) Link to this comment
TGAP Dad writes:
The meaning of ‘the people’ is predominately a reference to a collection of individuals, a superset extending beyond citizens. It would have to since the framers understood rights to be something inalienably owned by individuals. Randy Barnett’s Matter of Interpretation provides an excellent history of this term and when it’s used differently. States are referred to as states; see 10th Amendment for an example of how we distinguish the two.
I do not recall whether ‘people’ uncommonly refers to a collective rather than individuals in the 2nd Amendment.
wscott
August 2, 2012 at 5:47 pm (UTC -4) Link to this comment
@ Steve84 #8
Actually standing armies were the norm throughout most of Europe for most of the 18th Century. The founders were strongly opposed to the idea because based on their experience they felt standing armies were a threat to liberty, but they were hardly uncommon.
And while you are correct that military service was part of the rationale for the 2nd Amendment, it’s only half the story. The other half (and by some accounts, more than half) was a belief that an armed populace was the best defense against a tyrannical government. Not too surprising from people that had in fact just done exactly that.
http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution#Ratification_debates
@ rickdesper #15
Fair point. Tho of course Hamilton et. al. felt that the government can’t take away any of your rights except where specifically enumerated, rather than the opposite.
But I still think it’s a ludicrous stretch to say that the term “arms” only applies to technology that was commonly available in 1787. (Stevarious’ words, not yours.) That’s why I’m curious if there’s any record of applying the 2nd Amendment to cannons during its first century or so?
@ Doug Little #24:
Holy Shit is exactly the right response to the Davy Crockett! At least some historians believe it was never actually intended to be used, but was simply meant as a deterrent against a conventional attack by the Soviets.
[Hoping I don’t fail html this time…]
keithb
August 2, 2012 at 5:48 pm (UTC -4) Link to this comment
Don’t forget SADM. I think the picture is from the museum I linked to:
http://en.wikipedia.org/wiki/Special_Atomic_Demolition_Munition
keithb
August 2, 2012 at 5:53 pm (UTC -4) Link to this comment
OH, and just because 2100 were made does *not* mean that there were 2100 W54 warheads.
D. C. Sessions
August 2, 2012 at 6:49 pm (UTC -4) Link to this comment
I wish someone would, though, if only to settle the question of whether the Second Amendment is supposed to empower rebellion against the Federal Government when it gets out of line.
Michael Heath
August 2, 2012 at 7:29 pm (UTC -4) Link to this comment
rickdesper writes:
Please point to the controlling clause in the Constitution which delegates sufficient power to the government to prohibit us from exercising our right to own a car and therefore denies us protection under the 9th Amendment. Good luck with that.
Michael Heath
August 2, 2012 at 7:34 pm (UTC -4) Link to this comment
Me at 25:
That should have been, Restoring the Lost Constitution: The Presumption of Liberty and not Matter of Interpretation.
carolineborduin
August 2, 2012 at 7:48 pm (UTC -4) Link to this comment
Also, Scalia is way to tough to be intimidated by the likes of Obama.
lofgren
August 2, 2012 at 8:31 pm (UTC -4) Link to this comment
Too easy.
Interstate commerce clause.
If it can prevent me from growing weed for my own personal use, it can prevent you from owning the means to quickly and efficiently transport cargo across state lines.
dan4
August 2, 2012 at 9:08 pm (UTC -4) Link to this comment
“And I doubt anyone would even bring a suit claiming a right to own a rocket launcher…”
I can imagine Ron Paul bringing such a suit (seriously).
amethyststarling
August 2, 2012 at 9:28 pm (UTC -4) Link to this comment
Doesn’t the statement “well-regulated militia” nullify the individual/person argument? I have no background in terms of constitutional and federalist concepts, but as a lay person, it appears to me that the phrase negates any argument for the support for individual gun rights without regulation.
Stevarious
August 2, 2012 at 11:10 pm (UTC -4) Link to this comment
Well of course it’s ludicrous. I’m mocking Scalia’s obsession with original intent, not the people who believe the amendment supports access to modern weapons in general.
It doesn’t matter what the original intent of the founders was, because the farther forward in time we get, the less relevant their intentions become when applied to modern technology.
When they wrote that law, technology was such that it was very, very unlikely a lone gunman could kill more than one or two people before anyone nearby could disarm him. Nowadays, we have weapons custom-made for slaughtering large groups of unarmed people in seconds. Can anyone really make a serious argument that the founders intended for such weapons to be readily available? Of course not – they had no knowledge of such things. So when arguing about whether such weapons should be publicly available, their intent is immaterial to the argument.
Azkyroth, Former Growing Toaster Oven
August 3, 2012 at 4:46 am (UTC -4) Link to this comment
No, because the gun-worshippers really, really, really want it not to.
Doug Little
August 3, 2012 at 9:25 am (UTC -4) Link to this comment
keithb @27,
I don’t know, I feel that the Davy Crockett is more terrifying, the image of infantry men lobbing nukes at one another, Yikes.
wscott
August 3, 2012 at 11:36 am (UTC -4) Link to this comment
@ amethyststarling 35:
That’s the point that has been debated for years; see “District of Columbia v. Heller” for the most recent round. Based on the discussions that took place at the time, I think it’s clear the authors intended it to apply to individuals, not to the states.
(Actually it’s a measure of just how uncontroversial the Second Amendment was considered at the time that there was relatively little debate on it compared to the other Amendments.)
@ Stevarious 36
Ah, I misunderstood. Thanks for clarifying. (Let’s face it, far more ludicrous things have been seriously argued on the Intertubes!)
Sounds like we’re mostly in agreement. Tho personally I would the founders intent does matter, but in a case where The World Has Changed and made their intent OBE (such as the case you present), then it is incumbent on us to amend the Constitution accordingly. The same applies to 4th Amendment law.
ricko
August 3, 2012 at 11:36 am (UTC -4) Link to this comment
And I doubt anyone would even bring a suit claiming a right to own a rocket launcher, but they would lose very quickly in court.
Number whatever in the list of things you said that will turn out to be wrong.
http://law.justia.com/cases/federal/appellate-courts/F2/452/42/174626/
lofgren
August 3, 2012 at 1:49 pm (UTC -4) Link to this comment
It seems to me that both the “well-regulated militia” and “bear arms” parts of the amendment are intended to change with time. I agree that the 2nd amendment grants some individual right to own firearms, and not just revolutionary-era rifles. But I also think that the words “well-regulated” should not be overlooked. Clearly this is not intended to protect the right of any yahoo to own weapons. Many states require gun safety courses in order to own a firearm, and that sounds like a very reasonable regulation to me. The army doesn’t just hand you a rifle and tell you to go to town. Soldiers receive training in the proper use and care of their weapons, and training in the proper and effective use of force. Similar training should be required to own and carry anything more powerful than a hunting rifle.
democommie
August 6, 2012 at 11:39 am (UTC -4) Link to this comment
“Based on the discussions that took place at the time, I think it’s clear the authors intended it to apply to individuals, not to the states.”
And your opinion is worth as much as mine, which says that interpretation is fucking nonsense.