Gun Rights

What Did Scalia's Second Amendment Cover?

The late justice left unresolved the constitutionality of "assault weapon" bans and restrictions on carrying guns in public.

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Fox News

In my column yesterday, I said Antonin Scalia's majority opinion in District of Columbia v. Heller, the 2008 decision in which the Supreme Court concluded that a handgun ban was inconsistent with the Second Amendment right to armed self-defense, "strongly implied that nearly every other existing gun control law would pass constitutional muster." National Review's Charles C.W. Cooke thinks that gloss goes too far, at least with respect to Scalia's own views on the Second Amendment.

Cooke cites a 2012 Fox News interview in which Scalia reserved judgment on the question of which weapons are covered by the Second Amendment. "My starting point and ending point probably will be what limitations are within the understood limitations that the society had at the time," he said. "They had some limitation on the nature of arms that could be born. So we'll see what those limitations are as applied to modern weapons."

Since "the right of the people to keep and bear arms" refers to weapons that one person can carry, Scalia said, "It doesn't apply to cannons." Asked if the covered weapons might include semi-automatic rifles with 100-round magazines like the one used in the 2012 massacre at a movie theater in Aurora, Colorado, he said, "We'll see." What about "hand-held rocket launchers that can bring down airplanes"? Again, "It will have to be decided."

If Scalia had been confronted by a case that raised the issue, I am pretty sure he would have found a way to uphold federal restrictions on rocket launchers, which seem to fall into the "dangerous and unusual" category that Heller placed outside the Second Amendment's scope. It seems less likely that he would have deemed an "assault weapon" ban constitutional, since the guns covered by such laws are by no means unusual; to the contrary, they are highly popular among law-abiding gun owners. To put it another way, they are "in common use for lawful purposes," which by Heller's logic suggests that owning them is constitutionally protected.

That is the view the U.S. Court of Appeals for the 4th Circuit took in a decision this month. Two other federal appeals courts, the D.C. Circuit and the 7th Circuit, have upheld "assault weapon" bans, setting up a split that the Supreme Court may decide to address. Cooke notes that when the Supreme Court declined to hear an appeal challenging the 7th Circuit's ruling, Clarence Thomas vigorously objected, and Scalia joined that dissent. "I cannot imagine that Scalia signed onto the dissent because he hoped to prove Heller had no teeth at all beyond prohibiting absolute handgun bans," Cooke writes.

It seems pretty clear that Thomas would have voted to overturn the Highland Park, Illinois, law that the 7th Circuit upheld, and Scalia may well have decided to join him. But I am not at all sure there would have been three more votes for that position. Much would depend on the extent to which the other justices buy into the popular mythology concerning "assault weapons," to the effect that they are deadlier than other guns and uniquely suited to mass murder. The other justices might also take the view that the right to armed self-defense is adequately protected as long as handguns, shotguns, and rifles without "military-style" features are available.

What about restrictions on carrying guns in public? In 2012 a 7th Circuit panel (different from the one that later upheld the Highland Park "assault weapon" ban) ruled that the right to armed self-defense extends beyond the home, making Illinois' highly restrictive carry-permit law unconstitutional. It stands to reason that a blanket ban on carrying guns in public is inconsistent with the right to "bear" arms. Yet Scalia in Heller noted that "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." That suggests the right to bear arms is the right to carry them openly, which is not the preferred practice among people who carry guns for self-defense. Scalia himself might have endorsed that conclusion, but I don't know if four other justices would have agreed.

Heller did approve "laws forbidding the carrying of firearms in sensitive places," and it's not clear how broad such laws can be without running afoul of the Second Amendment. Under the federal Gun Free School Zones Act, for instance, legally carrying guns in some cities can be difficult or impossible.

Still, I think Cooke is right that my gloss on Heller underestimates its potential reach. While the decision seems designed to protect existing gun control laws at the federal level, it leaves unresolved the constitutionality of state or local laws banning "assault weapons" or restricting the carrying of guns outside the home.

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30 responses to “What Did Scalia's Second Amendment Cover?

  1. Yet Scalia in Heller noted that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”

    Those same 19th century courts held that the bill of rights didn’t extend to the states until the 14th amendment came along. Due to the lack of a federal ban of such arms at the time, the 19th century rulings were… fairly odd.

    I would, however, argue that while the case could be made that the 1st amendment, worded as “Congress shall make no law…” did not originally extend to the states, the 2nd, worded as “the right of the people…shall not be infringed” did. The courts of the day did not take that view, an assessment I see as simply wrong.

    1. It is quite simple. Despite the stated intention of having a Constitution for the express purpose of being a nation ruled by law rather than men, the people actually doing the governing learned pretty much immediately that this was too cumbersome. So instead of following the letter of the law, or even the spirit of the law, they went with “this is important, so the government can do it.”

      We still follow that protocol today. It cannot be rationally argued that any of our weapons restrictions pass constitutional muster. The language is plain and clear – no infringing the right of the people to keep and bear arms. This is clearly an unworkable public policy, so we just ignore the law.

      This is why the 9th and 10th amendments are dead letters that don’t even warrant a mention these days. It is way too inconvenient for the federal government to wield power under these restrictions, so we just ignore it.

      I suppose “following the constitution” is like the 55 mph speed limit. We follow it when we either have to, or it is convenient to do so, but otherwise we just ignore it.

  2. the “dangerous and unusual” category that Heller placed outside the Second Amendment’s scope.

    “Dangerous and unusual”? You mean, like *weapons* in general?

    1. No, like robotic unicorn suicide bombs.

      1. Though both the robotic unicorn and the explosives individually should be perfectly leagal.

    2. All firearms are inherently dangerous and there’s no objective way to measure ‘unusual’.

      In Arizona I can walk around town with a samurai sword because there are literally no restrictions on blades in this state. I suspect a ban on such would pass constitutional muster.

      1. I suspect a ban would pass the courts but would never pass constitutional muster. Just because no one is willing to enforce the actual meaning of the words on the page doesn’t mean those words have changed meaning.

        1. The Constitution is a living, breathing document UnCivil. What don’t you understand about that?

          1. The last time it changed was in 1992 with the ratification of the 27th amendment.

            The process for changing the meaning of the constitution is to put forth new amendments, not have five robes conspire to claim it says something it doesn’t.

            1. The 27th amendment was sent to the States for ratification in 1789 as the First Amendment. It had no expiration date and it took 200 years to pass.
              What we call the First Amendment was the 3rd, what we call the Second Amendment was the 4th.
              Passage of The Bill of Rights, the first 10 amendments was essential to ratification of the Constitution to replace the Articles of Confederation. Messing withe Bill of Rights endangers the Constitution and the United States because it nullifies the basis of initial ratification.

      2. The “unusual” restriction is particularly galling. By this standard you can never develop a new type of weapon and have it used by the public.

        Meanwhile, bans on things like mace and stun guns are plentiful, despite their less than lethal nature. How often are people assaulted with these weapons? Is it really so common that we cannot allow them to be owned?

        1. By this standard you can never develop a new type of weapon and have it used by the public.

          Now you’re catching on!

    3. So I guess a banana peel dispensing gun would be an item which under Heller could be banned. It is both dangerous (in that it could cause people to slip and fall) and unusual, right?

    4. See the 4ca opinion cited above for some ^this”.

      There would seem to be some aspects of the NFA that should be invalidated (e.g. given the number of silencers sold, and the growing number of states that allow hunting with silencers, they are clearly subject to heightened scrutiny). They are also particularly suited to use in defence of the home, especially in conjunction with short barreled bullpups.

      Select fire weapons are a harder case, but it is hard to justify the ability to obtain full-auto weapons, but not burst fire.

    5. See the 4ca opinion cited above for some ^this”.

      There would seem to be some aspects of the NFA that should be invalidated (e.g. given the number of silencers sold, and the growing number of states that allow hunting with silencers, they are clearly subject to heightened scrutiny). They are also particularly suited to use in defence of the home, especially in conjunction with short barreled bullpups.

      Select fire weapons are a harder case, but it is hard to justify the ability to obtain full-auto weapons, but not burst fire.

  3. Shockingly enough, in the Miller decision in 1939, the Court ruled that the 2nd amendment only protected militia/military firearms, no others.

    So, any ban on “assault weapons” may be upheld, but a ban on actual assault rifles, crew served machines guns, and anything else special forces may use wouldn’t be. Therefore, the government couldn’t ban anti-tank guns and the like.

    But then again, when did logical consistency ever prevent the Court from ruling however they saw fit?

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  5. “That is the view the U.S. Court of Appeals for the 4th Circuit took in a decision this month. Two other federal appeals courts, the D.C. Circuit and the 7th Circuit, have upheld “assault weapon” bans, setting up a split that the Supreme Court may decide to address. ”

    Sullum, The 4th Circuit ruling doesn’t setup a split. The ruling did not judge the AWB to be “unconstitutional” only that strict scrutiny must be applied. Basically all they did was kick it back to the lower court. This could result in a split, if the lower court rules the AWB unconstitutional through the application of strict scrutiny, but there’s no guarantee that they court will rule this way, and even if they did we wouldn’t see SCOTUS attention until appeals have been exhausted (which could take years). Frankly, I wouldn’t be surprised if they found some way to twist logic under the guise of SS to uphold the AWB.

  6. The 7th Circuit applied intermediate scrutiny which allowed it to claim that though mass shootings are actually quite rare, they are “highly salient events” that cause fear among the populace; therefore, it is perfectly acceptable to ban semi-automatic weapons and magazines over 10 rounds because it would make the public “feel safer” whether such a ban made any actual difference in terms of their safety; the court concluded that was a substantial benefit worthy of restricting the rights of law abiding citizens.

    The 4th circuit, applied strict scrutiny, and reasoned that such weapons as the AR 15 are commonly owned and used for legitimate purposes by law abiding persons, and are actually very seldom used to commit crimes. They concluded that any such ban of these weapons is unconstitutional.

    I will openly admit the decision of the 4th makes a lot more sense to me than the 7th; guess it’s a rationale over feelings thing, especially when it comes to my rights and liberties.

    1. This also seems a bit more substantial to me than the level of rigor applied to determine constitutionality [as important as that is]. And as you say, lower courts will most certainly twist logic any way they can to achieve their pre-ordained objectives, strict scrutiny notwithsatnding. Even if this is punted around for years in the lower courts, I think it is reasonable to conclude that it will eventually be granted cert and be taken up by the USSC; given the average tenure of the members of that body, it certainly does matter who gets approved for Scalia’s position, whether it is next year or next decade.

      1. Agreed. Going up for cert is not necessarily a good thing given the current state of SCOTUS. The appointment of a liberal or even a centrist Justice could likely be disastrous for the 2nd Amendment. Both Heller and McDonald were decided on a 5-4 vote. With a changed court that accepted any 2nd Amendment related case we could find a full repudiation of the 2nd Amendment as an individual right, effectively green lighting any and all proposed gun control laws. The next justice appointment could be a major turning point for 2A supporters.

        1. And our President’s assurance that it is not a “political” issue just isn’t all that reassuring…

    2. What does any of that have to do with anything? How often the weapons are abused is irrelevant, as the second amendment does not give the government the power to ban certain types of weapons if they are often used by Bad Guys.

      It’s sad, but it seems too many judges cannot comprehend such a simple document.

    3. An excellent real world example of this “designation” is when AR 15 and similar rifles were effectively used by the Vietnamese people during the rioting and burning and pillaging of their neighbourhoos after the Rodney King verdict. Hundreds of homes and businesses had been burned to the ground, the “front” was headed toward the “mixed use” neighbourhood of the Vietnamese who had their shops and businesses ground floor out front, and dwellings in back/2nd floor. As the hordes of marauders approached their homes and businesses, the MEN took to the flat roofs of their buildings and, when closely threatened, opened fire with those AR type rifles. The mob “made in informed decision” and left them alone. That small area became the ONLY area in the whole riot zone that was not burned to the gruind. Had they only had handguns, or .22 rifles, or perhaps even bolt action hunting rifles, it seems at least plausible they would have lost all… or at least, significantly. So yes those “military styule” rifles DO have legitimate role in self-defense.

      1. But NONE of this rhetoric approaches the root reason the Second Article of Ammendment is included, and written the way it is. Remember, those men had just recently been through a war, fighting to preserve their way of lfe, homes, families, businesses, etc, against the mightiest military force on the planet. The only “government” to which they might look for help and support was the very government trying to destroy them. They realised that the burden, the responsibility, for “the security of a free state” rested NOT on government (it was attacking them), military (repeat above statement) police (did not exist), but upon THEM, the PEOPLE comprising that state wanting to be secure. They fully intended THE PEOPLE to hold all the power and equipment that any government ever would. Yes, any weapon of military usefulness able to be deployed by a single individual is precisely what they reserved the right to own and transport.

  7. The five justices in the Heller Majority said that Open Carry is the right guaranteed by the Constitution and cited two 19th Century Open Carry cases saying these two cases perfectly captured the meaning of the right to keep and bear arms.

    All nine justices in the Heller decision said that concealed carry is not a right and can be banned. The five in the majority plus the four in the minority decision at 2851.

    1. then they forgot to study what went on during our War for Independence…. many of our fighters not only carried the best long guns available, they also carried…. pistols….. mostly carried concealed or mostly so. Some carried inside their waistband/belt, some in an inside jacket or cloak pocket, and some in the “center console’ of their normal mode of transport…. a case or bag on their saddle. Some of those pistols have come down to us today and remain in museums and collections. To deny the stealthily carried weapon as unconstitutional today would be cause for great scorn then.

  8. It should be understood fully. In 1788-89 the Congress was drafting the Bill of Rights. In the Senate, a word for word journal was not kept. But motions, amendments and votes were recorded. An amendment was offered for what was the 4th amendment and it was rejected. The motion was to add the words FOR THE COMMON DEFENSE into the amendment. It seems obvious that this was a means to establish legislative intent.
    In the 1850s the Court stated the rights of citizens, including the right to keep and bear arms, singly or in company, to cross state lines while bearing arms and to speak on political issues. The Court also said that Black people could not do these things and were not citizens. Dred Scott
    Miller Court knew, When it needed to form, the militia was expected to appear bearing their private arms of the type then in current military service. Today that means the AR and other modern types such as the M1A as well as bolt action 30 caliber rifles such as the Winchester and Remington sniper rifles as currently in service with the US military.
    In HELLER, when Justice Scalia said that the Court’s decision in HELLER only considered the limited case of Washington, DC’s handgun ban and storage within the home. The Court did not say more until the McDonald case which expanded the Second Amendment as a right of individuals in all States.

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