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.