S.Ct. Justice Scalia on More Gun Control

Supreme Court Justice Antonin Scalia’s remarks on the Second Amendment, following the Aurora theater murders,  have drawn much attention and media comment.  By-and-large it’s much-ado-about nothing and much-spin about vague statements.

Scalia left open the possibility that new gun control laws could be constitutional.  That’s a no-brainer if one bothered to read the Heller decision.  The Heller decision (authored by Scalia) never said that Second Amendment rights were absolute.  In fact, the opinion, and the later opinion in  McDonald (making the Second Amendment applicable to the states) stated that certain types of gun control were presumptively constitutional (e.g bans applying to convicted felons).

Scalia stated the obvious that to be eligible for protection under the Second Amendment via “carrying,” the weapon would have to be “hand held.”  He then stated “but I suppose there are hand-held rocket launchers that can bring down airplanes, but that will have to be decided.  Anti-gun rights hysterics jumped on the statement and concluded that Scalia would find these weapons protected.  Not only did Scalia say “that will have to be decided,” it is arguably unethical for a Supreme Court Justice to discuss a hypothetical that could, even remotely,  actually become a case someday.  And, of course, if one bothered to read the Heller decision one would find that keeping and bearing are only protected if they are for lawful purposes, primarily, if not exclusively, for self-defense or defense of others.  Neither  RPGs (rocket propelled grenades) nor  anti-aircraft missiles are defensive weapons. Further, it is difficult to think of a lawful purpose for civilian possession of such weapons.  Further, the Heller decision protects only weapons that are in common use at the time.  RPG’s, etc. are not in common use and it is highly likely that they never will be in common use.  Unfortunately, Scalia neglected to share these parts of the decision with the interviewer

Although all judges have First Amendment freedoms, I do not believe that judges serve either their institution, the dignity of their office, or public education  by giving mass-media interviews.  Rather than educate, these interviews typically only further confuse the public.  When you throw in media ignorance and spin, the final result is a cacophony of conflicting voices.  One doesn’t need an interview with a Supreme Court Justice to opine on gun control.