Scalia on the Second Amendment

In the majority decision in the SCOTUS case of District of Columbia v. Heller, Associate Justice Antonin Scalia writes, “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

Was Scalia a left-wing extremist who wanted to eliminate the Second Amendment? Was Scalia a protégé of Hitler, Stalin or Castro?

No, of course not. Scalia was just the opposite. In District of Columbia v. Heller, Scalia makes it clear that the right to keep and bear arms belongs to individual citizens, not just to the individual states. Yet, even he knew that the Second Amendment did not bar all forms of gun control.

The above-quoted opinion about the Second Amendment is shared by the other SCOTUS Justices who joined Scalia in the majority in District of Columbia v. Heller, those Justices being Chief Justice John G. Roberts, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alto, Jr.

That the Court’s conservative Justices share such an opinion is evident in the Court’s recent decision not to review a ruling made by the Second Circuit Court of Appeals. A 06/20/16 story by The Hill explains:

The Supreme Court on Monday denied review of a case challenging Connecticut’s ban on assault weapons. The case stems from legislation enacted in both New York and Connecticut in the wake of the 2012 shooting at Sandy Hook Elementary School in Newton, Conn., which left 20 children between the ages of 6 and 7 dead, as well as six adult staff members. Gun rights advocates argue the bans violate their Second Amendment right to bear arms and that certain provisions are constitutionally vague. In October, the Second Circuit Court of Appeals upheld the bans. It said the core provisions of the New York and Connecticut laws prohibiting the possession of semiautomatic assault weapons and large-capacity magazines do not violate the Second Amendment and provisions in the laws are not vague. “Because the prohibitions are substantially related to the important governmental interests of public safety and crime reduction, they pass constitutional muster,” the court said.

So, one isn’t siding with the ruthless dictators of human history when one advocates for reasonable limits on firearms. Even Antonin Scalia believed that reasonable limits existed.

Americans can politely disagree with each other about what those reasonable limits are.

Antonin Scalia

Antonin Scalia

Wizbang Weekend Caption Contest™
Lynch : Fight Terrorism With Love
  • pennywit

    Before attaching Justice Scalia’s imprimatur to your cause, recall that there’s a vast difference between what Justice Scalia might call constitutional and what he might consider good manners or good public policy.

  • Retired military

    I guess Scalia is right. David is gonna try to keep on until he feels he gets the last word in.

  • Vagabond661

    If you read three more sentences, you would have known what limits there are, mainly felons, the mentally ill, those who can not admit to be wrong,…..

  • Scalia

    What was it I said about David’s thought pattern? This is now the fourth post on the subject, and he has not replied to one counterargument that has been posted on these boards. It cannot be said that he hasn’t read them because David replied to something he thought was a gotcha, but it backfired on him.

    Why is David revisiting this? Does he think that by quoting Justice Scalia he can shore up his vapid arguments? As Vagabond661 stated, all one needs to do is read the rest of Scalia’s remarks:

    It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

    Thus, the limits that the Court referred to are longstanding restrictions gun-rights advocates have recognized and predominantly agree with.

    Lest one should seize on the statement about concealed weapons, note that the Court’s reasoning is in the context of carrying “any weapon whatsoever in any manner whatsoever…” A concealed weapons prohibition is an example of the manner in which persons exercise their self-defense rights. Again, from Heller:

    Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. And some of those few have been struck down. In Nunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at 251. In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. Ibid. See also State v. Reid, 1 Ala. 612, 616–617 (1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”).

    In other words, a concealed weapons ban may be appropriate so long as citizens are able by other means to defend themselves with firearms (e.g. open carry).

    David, since you ARE reading the posts, and since you’ve shown no reluctance to write about it. Why don’t finally step up to the plate and answer the counterarguments to your posts? You need to put up or….well, you know.

    • pennywit

      Also note that Justice Scalia defended weapons “in common use at the time.”

      This reminds me a little bit of Justice Scalia’s opinion in Kyllo. And I share dissenters’ view that the standard is a bit circular.

      • Scalia

        Justice Scalia was trying to show how Heller is consistent with originalism and precedent, but I agree that it is at least problematic.

    • Vagabond661

      What we have here is a clear example of a smug, pompous, elitist wrapped up in his own ignorance.

    • pennywit

      Hey, Scalia, apropos of nothing, I found an article that you might … well, “enjoy” is the wrong word. It’ll probably boil your blood a little bit, but it’ll be blog fodder. Note that I am not agreeing with it in any way. This is just the only way I know of to forward something to you.

      • Scalia

        I don’t agree with one thing that author alleges. Why did you recommend it to me?

        • pennywit

          As blogging fodder, something that you would disagree with, and might be incorporated if you choose to look at the broader debate and behavior of advocates in the gun-rights debate. I found myself alternately fascinated and disgusted with the article.

        • Shit disturbing.

  • jim_m

    Imbecile. There is a difference between saying that Justice Scalia claimed that there were reasonable limits that could be placed on the 2nd amendment and claiming that he would have backed any specific limitation as you just did.

    Also, it is a fool’s errand to claim that any decision of the court to not hear a case currently means anything. Even the casual observer should have been able to detect that the 8 member court is steering clear of the most controversial issues and waiting for the 9th member to be appointed to allow a full court to make decisions.

    • pennywit

      Also, it is a fool’s errand to claim that any decision of the court to not hear a case currently means anything.

      Since Heller and McDonald, the high court has turned aside gun-law challenges pretty regularly, even before Justice Scalia passed.

      • jim_m

        Which is also not that unusual. The court tends to let any conflicts build between the circuits before hearing a case. But I also believe that the court is currently steering clear of the most controversial cases if it believes they can wait.

        • pennywit

          Makes me glad we have John Roberts as chief justice. I admire his devotion to the court as an institution.

  • TheyTukRJobz

    The issue with the bans on “assault rifles” is not that it is unconstitutional, but that it is a feel-good, do-nothing, “do something” kind of legislation that will not save one single solitary life.

    And even if such a law managed to *magically* prevent someone from killing with an “assault rifle (with grenade launcher! and bayonet mount! LOL), they will kill people with semi-automatic handguns and or bombs. Let’s not forget the VA Tech murders were done with a common handgun.

    Then will come the calls for banning semi-automatic handguns, etc. All without effect. A person intent on murdering other people will find a way. Someone who plans the murder spree will figure out a way to maximize the carnage.

    And let’s not forget that “assault rifles” account for an almost imperceptible number of murders, let alone gun crimes. They aren’t even used in the majority of mass murders.

    Bottom line: it’s not unconstitutional to enact stupid, useless gun laws; it’s just that they won’t accomplish anything, and won’t save one single life.

    • Scalia

      That’s the strategy. If you get people to accept a ban on a weapon that’s used in a tiny fraction of crimes, you’re in a position to argue that consistency dictates they support a ban on a weapon used in the majority of crimes.

    • jim_m

      Wrong. The issue is not that it is ONLY unconstitutional, but it is also ineffective. You must always maintain the truth that these sorts of bans are first and foremost unconstitutional. Once you ban a weapon that is not materially different from any other rifle on the market today, you have eliminated any reason not to ban all the rest of those rifles.

      This is exactly what the gun control crowd wants. They want you to stop arguing and thinking about the constitutionality because as soon as you do that you have given up your chief defense.

  • Retired military

    Charles Rangel must be David’s hero

    “Law-abiding citizens just shouldn’t have to carry a gun. You’re not gonna push me in that direction,” he said, standing just five feet from a Capitol Police officer, who stood at his post by the House Speaker’s Lobby.

    TheDC noted to Rangel he and other members of Congress are protected by armed members of the U.S. Capitol Police.

    “Well that’s a little different. I think we deserve–I think we need to be protected down here.” Rangel laughingly insisted.

    • Jwb10001

      Good to know no one’s coming after anyone’s guns.

    • pennywit

      He’s right, sort of. A law-abiding citizen shouldn’t have to carry a gun. But a law abiding citizen also should have the right to make that choice for himself.

  • Vagabond661

    Has Wizbang ever banned its own blogger?

    • jim_m

      Nope. Rick was never banned. Why he has finally chosen to bless us by not inflicting his poorly sourced views I do not know but I am grateful.

      Currently, he is writing on his own blog blaming US society for Orlando, claiming that all true Christians will not vote for Trump and criticizing pro life conservatives for being insufficiently ideologically pure in his opinion. He is better writing where no one will question his posts because no one reads them. Good riddance.

  • This may be considered as the true palladium of liberty…The right of self defense is the first law of nature: in most government it has been the study of rules to confirm this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color of pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.


    • Scalia

      Yes. Justice Scalia quoted this in Heller.

  • jim_m


    What say ye Wizbang? (Since no one is bothering to post a separate article)

  • Right now, the Supreme Court is slowly chipping away at the Second Amendment. The only way to combat this is to keep bringing Second Amendment cases throughout the appellate process in hopes of getting some of these rulings overturned. There will be new faces on the court soon, which hopefully will bode well for the Second Amendment.

    • Scalia

      It doesn’t bode well at all if Hillary wins in November. If she wins, kiss the Second Amendment goodbye for a long time.