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Scalia: 2nd Amendment says “bear arms.” Cannon? Probably not. Rocket Propelled Grenade Launcher? Probably yes.

Here it is:

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I guess there’s the advantage that we won’t have to worry about concealed carry.

Depicted is an RPG-29, which fires rocket driven grenades with a range of just under 1000 feet, and is designed to take out tanks with advanced armor, penetrating up to 29 inches of armor, or almost 5 feet of reinforced concrete or 6.6 foot brick walls.

31 comments to Scalia: 2nd Amendment says “bear arms.” Cannon? Probably not. Rocket Propelled Grenade Launcher? Probably yes.

  • JL

    Too bad we can’t impeach a judge for being a nut-job.

  • Whatever happened to: “A well regulated Militia, being necessary to the security of a free State,” in the 2nd Amendment.

  • Dr X

    But what if the writers of the Second Amendment really believed in a right to bear hand-held surface-to-air missiles? I know they didn’t foresee the need to shoot at planes, but maybe they were thinking the missiles could be used to against invading hot-air balloons.

  • Observer

    @ Weirdharold:

    Who regulates the militia? And how?

  • Anderson

    See, when the jackbooted thugs turn up on Scalia’s doorstep and mandate that he buy his own health insurance, he will be ready!

  • Observer: That is my question! You seem to suggest it is irrelevant, then if the basics for the amendment is irrelevant, then the whole amendment is irrelevant.

  • John

    A state regulates its militia. See, e.g., Miss. Const. of 1890, art. 9, sec. 215 (organization of militia by legislature; “The legislature shall provide for the organizing, arming, equipping, and discipline of the militia, and for paying the same when called into active service.”). Who is subject to service? “All able-bodied male citizens of the state between the ages of eighteen and forty-five years shall be liable to military duty in the militia of this state, in such manner as the legislature may provide.” Miss. Const. of 1890, art. 9, sec. 214. See also 3 J. Elliott, Debates in the General State Conventions 425 (3d ed. 1937)(statement of George Mason, June 14, 1788; “Who are the militia? They consist now of the whole people.”).

    If you want to know what happened to the argument that the Framers meant a militia was the only group of persons having a right to bear arms, see District of Columbia v. Heller, 554 U.S. 570 (2008)(Amendment II guarantees individual’s right to possess firearm unconnected with service in militia and to use that arm for traditionally lawful purposes).

  • Ben

    During my Tanning Tour of Southeast Asia, I participated as an unwilling and unwitting target for militiamen exercising their rights to fire ChiCom RPG7s. Very effective. It’s good to know that Antonin Scalia, noted expert on firearms, thinks they should be widely available. I’m sure he’d enjoy dodging them just as much as I did. I can’t say that I’d wish him any success.

    Transportation problems aside, I don’t see why Scalia thinks Americans should be deprived of their rights to cannons. I’ve got enough backyard to sink in a M198 155mm howitzer, and I could install a ring-mount M134 minigun in my pickup truck. All for my militia duties, of course.

    What with the likes of Antonin Scalia occupying leather chairs in the Supreme Court of the United States … the republic needs a new Supreme Court. Scalia needs a house-arrest ankle bracelet.

  • John

    The key word is “bear.” The arm must be capable of man-carry. A M198, at 15,000 pounds, isn’t man-packable.

    I don’t interpret Scalia’s argument as suggesting RPGs should be widely available.

    Oh, Ben, for backyard use, as much as I like the M198 (I commanded a M198 battery), go with a M102A2.

  • NMC

    Are we really going to ignore the word “regulate?”

  • Anderson

    So you’re really reading “bear” to limit arms to those one can carry?

    I suppose you also think the air force is unconstitutional?

    Cereal-box con law. Sheesh.

  • NMC

    John, I think he is saying exactly that any arm that can be “borne” as a shoulder arm is protected for personal ownership by the 2nd amendment.

  • Ben

    Anderson: I suppose you also think the air force is unconstitutional?

    I think the airforce is a lot worse than that.

  • Anderson

    Hear, hear, Ben.

    … The Revolutionary War began with a British raid to seize mlitia muskets and artillery.

  • So that means suitcase nukes are protected by the 2nd Amendment! FREEDOM!!!!!

  • Heller and McDonald. It’s over. We get to keep our inert mechanical devices known as firearms. Move it along; nothing to see here.

    Or maybe some kind of deal can be struck. Liberals can keep bringing this up, and conservatives can keep bringing up Roe v. Wade. Good, productive fun.

  • Terminator

    I can “bear” a bouncing betty; I can “bear” a flamethrower [hey, its an arm that flames]. No way the amendment relates to hunting; but no way it relates to everyday citizens having advanced military weapons. I own 14 firearms; I’m not a collector, not a “gun nut” [I don't think I am], just a person that likes to feel I can avoid going down like a helpless shivering dog. I can do that with my primary weapons: in my car a .40 semi automatic handgun, in my home, a pump shotgun with buckshot. I don’t don’t need a betty, a flamethrower, a cannon, or an RPG.

  • I agree the amendment has nothing to do with hunting (although I would note that it has something to do with a militia, and seems to state outright that the militia is to be “well-regulated,” both creating issues about the government’s presumed involvement that makes this very different than rights in the First Amendment). I read Heller to strongly suggest that the question was open what sort of regulations would be permissible, although the closer regulations got to limiting an ordinary gun in a home, the more sure they would be struck down.

    And I think we agree that the government should be allowed to prohibit personal ownership of military weapons like an RPG (or a machine gun). But Scalia seems to suggest otherwise, and I sure can see how a textualist, once he’s arrived at the conclusion to read the business about the militia out of the amendment, would have trouble drawing lines between various kind of weaponry that could be “borne” by a user.

  • John

    @NMC – Scalia’s point about “bearing” arms was to explain the originalism construct applied to interpret the constitution. This construct disposes of arguments that Amendment II means individuals can own tanks, howitzers, and crew-served weapons (e.g., M2 .50 cal. machine gun). And that construct makes sense — individuals have a right to own and bear what we call individual weapons.

    Ownership of weapons that can be carried by an individual is, in fact, regulated. An individual can carry a M60 machine gun. Remember the original “Rambo” movie? That’s the weapon Rambo used to destroy an entire town. (Only in Hollywood, of course.) Absent a proper federal firearms license, a citizen cannot own a M60. An individual can carry a M249 light machine gun; can’t own one. (There are some “pre-sample” versions of the weapon that can be transferred from one federal firearms dealer who has paid a special occupational tax (SOT) to another such dealer, but not to Joe or Jane Citizen. The price for a dealer-to-dealer purchase of a pre-sample version? Something like $45,000; a ton of money for a weapon that fires a 5.56 NATO round, which is the same as the M16 and M4 round, or what something as mundane as the Ruger Mini 14 ranch rifle fires. I’d rather spend that money on a pre-owned Porsche Carrera.) An individual can carry five of the current version of the M72 lightweight antitank weapon (LAW) used by the Marine Corps; Joe Citizen can’t own a LAW, though. Ditto for the AT4 anti-tank weapon used by the Army.

    Scalia doesn’t argue that such weapons subject to regulation should not be regulated. Scalia’s opinion in the Heller case recognized that like most rights, the right secured by Amendment II is not unlimited, and the right is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. District of Columbia v. Heller, 128 S.Ct. 2783, 2816 (U.S. 2008)

    With respect to the “regulated” word in Amendment II, I submit that it relates to the regulation of militias by states (like the Mississippi Constitution addresses). It doesn’t apply to regulating the bearing of individual weapons. That is, it doesn’t apply to the operative clause.

    I think we will see lots of chatter about regulating large capacity magazines because the Colorado shooter had a 100-round drum attached to his semi-automatic rifle. Of course, his choice of an unreliable drum magazine that jammed ended up saving lives. Changing standard, vertical feed magazines is not a time consuming task. With just a little coaching and practice, any shooter can change magazines and have a pistol back in action in two seconds. Maybe three seconds for a rifle magazine change. A shooter firing a revolver who is skilled using “speed loaders” can reload a revolver and have it back in action in a couple of seconds, too. So, the notion that a magazine change presents a golden opportunity for a crowd to take down a whacko shooter is not well-founded.

    We know from the last ban on high capacity magazines that such a ban has no impact on crime. Banning magazines based on capacity is just form over substance. Assuming a citizen is limited to a 10-round magazine, he or she can carry four magazine in addition to the one in the magazine well of the weapon and have a 50-round capability. Same with banning semi-auto rifles because the cosmetics make them look like military weapons.

  • John wrote:

    Absent a proper federal firearms license, a citizen cannot own a M60. An individual can carry a M249 light machine gun; can’t own one.

    I would hope, but am not so sure.


    Scalia’s opinion in the Heller case recognized that like most rights, the right secured by Amendment II is not unlimited,

    I read it that way at the time (suggested so in my post) but, as noted, Scalia goes pretty far in the interview linked above.

    Note: I've had to heavily edit this comment to try to fix it after it was somehow scrambled by WP

  • John

    I was responding to your 11:19 post last night. I hadn’t read your posts from earlier this evening yet.

  • John

    I just watched the selectively edited part of of Scalia’s conversation with Chris Wallace posted above. I should have known anything presented by a progressive organization like thinkprogress.org would be misleading by design.

    He clearly explained that an originialist analysis would consider, as a starting and ending point, what current limitations would fall within the scope of the limitations as to the type of arms that could be borne at the time the amendment was drafted. The not-so-clever thinkprogress.org editing left out his explanation that post Revolution, there was a prohibition on carrying any weapon for the purpose of scaring others, and I believe he gave a head ax as an example. He explained that was a misdemeanor offense, and he also said it was a tort. I had the broadcast on yesterday as I was doing other things and heard almost all of the interview. (Thanks to this digital over-the-air TV stuff, it’s the only Sunday news show I get.) The little blurb above, particularly in its edited form, is just a tad bit misleading. But, considering the source, why should I be surprised?

    So, considering what Scalia said in its unedited form, it’s not hard to reach the conclusion that if it was unlawful to carry a head ax at the time the amendment was drafted (that is, prohibiting bearing that weapon was compliant with Amendment II), then restrictions today on a wide variety of man-packed weapons (like a man-packed anti-aircraft missile) likewise would not violate Amendment II. The thing is, as Scalia pointed out, there is no decisional law on the issue of whether there is an individual right to bear a man-packed, shoulder fired air defense missile. I mean, that’s as plain as the nose on one’s face, at least for those who saw the whole interview and understood the context. What he said is absolutely consistent with Heller and the recognized limitations on Amendment II.

    I’m grinning at the gullibility of those who would believe that the thinkprogress.org edited excerpt represents some kind about face by Scalia regarding what was plainly stated in Heller about reasonable regulation. Any fair and open-minded person should view the entire interview. But, that would take all the fun out of the misleading “chop job” above.

  • Floyd Pink

    “I’m grinning at the gullibility of those who would believe that the thinkprogress.org edited excerpt represents some kind about face by Scalia regarding what was plainly stated in Heller about reasonable regulation. Any fair and open-minded person should view the entire interview. But, that would take all the fun out of the misleading “chop job” above.”

    I watched the whole interview Sunday morning and got the same impression as you, John. The key is “fair and open-minded person.”

  • I just watched the whole interview, beginning to end.

    First, anyone interested in the Supreme Court should watch this interview. Chris Wallace does a really good job, hitting Justice Scalia with a few questions that really should inform a viewer.

    Second, the clip above is not unfair in the way John suggests. It’s continuous– not cut, and not much out of context. Yes, in the build up to it, there is talk about the possibility that some threatening “bearable” arms may have been misdemeanors back in the day. But then he does suggest an RPG might be protected….

    But the big thing is, watch the whole clip. It’s revealing, whatever side you are on. Chris Wallace did a decent interview.

  • John

    I’ll defer to you if you have compared the videos side-by-side, but the thinkprogress.org clip seems edited at the :36 to :37 area. Maybe it’s just the guest talking over the host. I agree with your observation that it was a good interview.

  • pam

    I’d like to be protected FROM all the arms, not after I or my children are dead, before. Thanks

  • John

    @ Anderson re: 29 July, 10:17 pm post (“So you’re really reading ‘bear’ to limit arms to those one can carry? I suppose you also think the air force is unconstitutional? Cereal-box con law. Sheesh.) – If you haven’t caught up, maybe look up the definition of “bear.” See The Merriam-Webster Dictionary 61 (2004)(“bear” means to carry). Perhaps you are just stuck on stupid and think the right to bear arms relates only to militia members and that bear somehow doesn’t mean to carry bearable arms. Suggest you read some real con law like Heller. See District of Columbia v. Heller, 128 S.Ct. 2783, 2791-93 (U.S. 2008)(“Reading the Second Amendment as protecting only the right to ‘keep and bear Arms’ in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as ‘the people.’ We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.” . . . At the time of the founding, as now, to ‘bear’ meant to ‘carry.’”). In so doing, you might figure out that Amendment II has nothing to do with the air force and the other armed forces. Article I, section 8 deals with the legislative branch’s responsibilities and authority regarding the armed forces. You know, real con law right there in the positive law.

  • pam

    Well it’s good to know that bearing one’s burdens is limited only to ones that can be carried. Pffffew, cause shit is getting heavy. Where’s the drop off center? I’d be happy to unload a few.

  • James

    NMC @ 6:06 – “But Scalia seems to suggest otherwise”. ??? Don’t see where Scalia said anything that would suggest this. He did not say that indicates what he thinks should be allowed – just as any “good” jurist should do. He only said that such questions have not been raised but probably will be.

    Your comment here matches your 11:19 comment: John, I think he is saying exactly that any arm that can be “borne” as a shoulder arm is protected for personal ownership by the 2nd amendment.” If you listen to the interview, or read the transcripts, he does not say that “any arm that can be borne … is protected by the 2nd Amendment”. He said that it has not been decided but assumes that it will be at some time. What he did not do was say what his opinion at that time would be.

    But – just as you have done in the headline “PROBABLY YES” explains that you read/heard what you wanted to read/hear in this interview from Scalia. Try listening again and see if you can find how you know what Scalia would rule from his answers on this interview.

    I do agree with you – however – that Wallace did a very good job on this interview. Something I think he does often, with individuals on both sides of the spectrum. Even when time limited, he will try to push his guests to answer the questions posed, rather than give a statement that never addresses his questions.

  • haiki

    If, as some may argue, that the Second Amendment’s “militia” meaning, is that every person has a right to keep and bear arms. The only way to describe one’s right as a private individual, is not as a “militia” but as a “person” (“The individual personality of a human being: self.”). “Person” or “persons“” is mentioned in the Constitution 49 times, to explicitly describe, clarify and mandate a Constitutional legal standing as to a “person”, his or her Constitutional rights. Whereas in the Second Amendment, reference to “person” is not to be found. Was there are reason?. The obvious question arises, why did the Framers use the noun “person/s” as liberally as they did throughout the Constitution 49 times and not apply this understanding to explicitly convey same legal standard in defining an individual’s right to bear arms as a “person”?
    Merriam Webster “militia”, “a body of citizens organized for military service : a whole body of able-bodied male citizens declared by law as being subject to call to military service.

    Article 2, Section 2 “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual Service of the United States;…”

    In the whole of the U.S. Constitution, “militia” is mentioned 5 times. In these references there is no mention of person or persons. One reference to “people“ in the Second Amendment. People, meaning not a person but persons, in describing a “militia”. “People” is mentioned a total 9 times.

    It’s not enough to just say that “person(s)” is mentioned in the United States Constitution 49 times. But to see it for yourself, and the realization was for the concern envisioned by the Framers that every “person” be secure in these rights explicitly spelled out, referenced and understood how these rights were to be applied to that “person”.

    “..No Person shall be a Representative..”
    “..whole Number of free Persons,..”
    “..three fifths of all other Persons…”
    “..No person shall be a Senator…”
    “..And no Person shall be convicted…”
    “..no Person holding any Office…”
    “..Names of the Persons voting for…”
    “…of such Persons as any of the States…”
    “…not exceeding ten dollars for each Person…”
    “…And no Person holding any…”
    “…or Person holding an Office of Trust o…“
    “…and vote by Ballot for two persons,…”
    “…List of all the Persons voted for,…”
    “…The Person having the greatest Number of Votes…”
    “…and if no Person have a Majority,…”
    “…the Person having the greatest Number…”
    “…No person except a natural born Citizen,…”
    “…Any Person be eligible to that ….”
    “…No Person shall be convicted of …”
    “…except during the Life of the Person attainted….”.
    “…A Person charged in any State…”
    “…No Person held to Service…”
    “…The right of the people to be secure in their persons,…”
    “…and the persons or things to be seized….”
    “..No person shall be held to answer…”
    “..nor shall any person be subject for the same offense….”
    “…they shall name in their ballots the person voted for as President,…”
    “…the person voted for as Vice-President,…”
    “…all persons voted for as President,….”
    “…all persons voted for as Vice-President…”
    “…The person having the greatest Number of votes for President, …”
    “…and if no person have such majority,…”
    “..the persons having the highest numbers …”
    “… The person having the greatest number of votes…”
    “..and if no person have a majority,…”
    “…But no person constitutionally ineligible…”
    “…All persons born or naturalized …”
    “…nor shall any State deprive any person of life, liberty, or property,…”
    “…nor deny to any person within …”
    “…number of persons in each State,….”
    “…No person shall be a Senator or …”
    “..and such person shall act accordingly….”
    “…of the death of any of the persons from…”
    “…death of any of the persons from…”
    “…No person shall be elected to the office…”
    “…and no person who has held the office of President,…”
    “..to which some other person was elected…”
    “…shall not apply to any person holding the office…”
    “..prevent any person who may be holding…”

    Excerpts in reading Emerson v. United States (1999), or Miller v. United States (1939), one can be struck with the many thoughts, interpretations of what the second amendment means, but more important how it came about and ended. However, even still, I am left with the thought if the Framers had treated Amendment 2 with the same obedience, and reverence to explain the 49 Constitutional references to “person”, there would be no controversy in what is perceived as a right to bear arms.

    United States v Emerson
    “The American colonists exercised their right to bear arms under the English Bill of Rights. Indeed, the English government’s success in luring Englishmen to America was due in part to pledges that the immigrants and their children would continue to possess “all the rights of natural subjects, as if born and abiding in England.”
    “A foundation of American political thought during the Revolutionary period was the well justified concern about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny.”
    “The framers thought the personal right to bear arms to be a paramount right by which other rights could be protected. Therefore, writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included “the right to keep and bear arms” in a list of basic “human rights” which he proposed to be added to the Constitution. HALBROOK, supra at 223 n. 145 (citing James Monroe Papers, New York Public Library (Miscellaneous Papers of James Monroe)).”

    307 U.S. 174 United States v. Miller
    Structural Analysis
    “Furthermore, the very inclusion of the right to keep and bear arms in the Bill of Rights shows that the framers of the Constitution considered it an individual right. “After all, the Bill of Rights is not a bill of states’ rights, but the bill of rights retained by the people.” David Harmer, Securing a Free State: Why The Second Amendment Matters, 1998 BYU L. REV. 55, 60 (1998). Of the first ten amendments to the Constitution, only the Tenth concerns itself with the rights of the states, and refers to such rights in addition to, not instead of, individual rights. Id. Thus the structure of the Second Amendment, viewed in the context of the entire Bill of Rights, evinces an intent to recognize an individual right retained by the people.”

    After debating by the Framers on the proposed right to bear arms, from these few references, some credence is given to the “intent” to “to bear arms”. Analysis of structural statutory construction, “..viewed in the context of the entire Bill of Rights,..” individual citizens, a person, to “bear arms“ however proposed and debated, there is reference to “person” mentioned 49 times, is this not to be considered when looking at the context of the entire Bill Of Rights? Right to bear arms was debated and proposed, but the Second Amendment remains silent.

    The explaining by the many well intentioned people into trying to bring the Second Amendment into the 21st century gun debate cannot be overcome by interpretive speculation evolving into word variations hoping that if you say it something long enough, many times over and over again, people will believe it. You cannot get there from here.

    “If Congress enacted into law something different from what it intended, then it should amend the statute to conform it to it’s intent. “It is beyond our province to rescue Congress from it’s drafting errors, and to provide for what we might think…is the preferred result.” Fullbright v. United States Dep’t of Educ.

    Jones v Smart [1785} 1 Term Rep.44,52 (per Buller, J.) “[W]e are bound to take the act of parliament, as they made it: a casus omissus can in no case be supplied by a Court of Law, for that would be to makes laws.” (Reading Law: The Interpretation of Legal Texts) Antonin Scalia/ Bryan A. Gardner .West.

    What are we missing?

  • You covered much, Haiki. But not on the militia clause. The police power is defined in relation to the free American subjects here. By the time the Bill of Rights came up Tennesseans and others had already set up militias on the western waters. Self-defense was the operative and the utter lack of standing armies. Our current dilemma is an all powerful, intrusive national (and imperial) force adjacent to the same excess on the personal. Why do legal minds and governments give us no ‘regulated militias’? We have dozens of federal security agencies with no peace or safety?

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