Scalia: Guns May be Regulated

[p12]

Read this article this morning and it doesn't look good for our future liberty.

http://www.nationaljournal.com/scalia-guns-may-be-regulated-20120729

[SADShooter]

Similar comments on Fox News Sunday.

[TommyGunn]

I saw Scalia on Fox News Sunday.  While I wasn't entirely "blown away" by his 2A positions I wasn't overly alarmed, either.
Like it or not no constitutional right is absolute.  Your first amendment right does not entitle you to incite a riot, issue "fighting words," or to slander or libel people with impunity.
The 2A can be "regulated."  The question is when does "regulation" become "infringement."
Do you have the right to own a nuclear bomb?  According to Scalia, no because you are not able to carry one on your person, like you can a pistol or a rifle.  As Scalia said "...to keep and bear" means you have the right to own a weapon you can carry and use in that respect.
I have always believed this was a reasonable limitation on this right and I guess I am not alone.
All rights are limited by the existential purposes they're intended to protect.
Scalia did say that there have been laws dating back to the founders that prevent one from carrying a weapon around to cause fright.  Scalia used as an example, a "head axe," meaning I suppose an axe designed specifically to behead human beings.  Carrying such around would incite fear in people since such a purposeful weapon would imply an intention to use it for said purpose.
This could pose a problem.  What if legislatures decided to use it to restrict AR-15s, since James Holmes used one in his Aurora Colorado massacre?  
So it's a mixed bag really, to an extent.
But the protection of our 2A rights, just like our other Constitional rights, depends not really on Congress, or SCOTUS, or any other instition for protection; only "we, the people" can protect our rights, in the end.
And this has been true since the Constition and the Bill of Rights were adopted.

[Tallpine]

Citizens could own cannons and warships back in the founders' days.

Their single shot rifles were equivalent or better than military muskets.

[TommyGunn]

Citizens could own cannons and warships back in the founders' days.

Their single shot rifles were equivalent or better than military muskets.

Well, people do own such things today.  The actor who played "Worf" in Star Trek the Next Generation owns and flies a MiG-15.  There are people who own tanks.
IMHO: the fact that such people own these things, then or now, does not necessarily mean that ownership was necessarily protected by the Second Amendment.
I know some people will disagree with me.  That's OK.  I'm used ot it. 

[birdman]

Well, people do own such things today.  The actor who played "Worf" in Star Trek the Next Generation owns and flies a MiG-15.  There are people who own tanks.
IMHO: the fact that such people own these things, then or now, does not necessarily mean that ownership was necessarily protected by the Second Amendment.
I know some people will disagree with me.  That's OK.  I'm used ot it. 

All of which are de-mil'd with disabled weapons.  You can no more own a tank with a cannon as you can a field piece...meaning every round must be registered as a DD.

[lupinus]

Yeah, but does his Mig 15 match current generation jets and is he able to arm it with all the bells and whistles?
 
Same with tanks. Good luck driving down to the M1 abrams factory line and buying one off the lot.

[Perd Hapley]

Do you have the right to own a nuclear bomb?  According to Scalia, no because you are not able to carry one on your person, like you can a pistol or a rifle.  As Scalia said "...to keep and bear" means you have the right to own a weapon you can carry and use in that respect.

That doesn't make any sense. 200 years ago, guns like the AR would have been in that category, because carrying thirty (or a hundred) single-shot rifles seemed implausible. Two hundred years from now, we may have nuclear bombs we can carry in our pockets.

Besides, Mr. Scalia should explain how "keep and bear" somehow implies that we can only keep those arms we can bear. The language of the amendment implies no such thing as Scalia claims. As has been pointed out, letters of marque and reprisal are also constitutional. I.e., privately owned and operated warships.

[SADShooter]

That doesn't make any sense. 200 years ago, guns like the AR would have been in that category, because carrying thirty (or a hundred) single-shot rifles seemed implausible. Two hundred years from now, we may have nuclear bombs we can carry in our pockets.

Besides, Mr. Scalia should explain how "keep and bear" somehow implies that we can only keep those arms we can bear. The language of the amendment implies no such thing as Scalia claims. As has been pointed out, letters of marque and reprisal are also constitutional. I.e., privately owned and operated warships.

Thank you. This is what irritated me. He went on at length about his philosophy of interpretation as true to the understanding of the law's text when written, then ignored his own principles when discussing gun control. To be fair, he did mention portable rockets in the modern context as an outlier example, but didn't mention privately held technology of the past (warships/field guns on carriages, etc.) that wasn't man-portable.

[Ben]

Scalia said exceptions to gun rights were recognized when the Second Amendment was written, including a tort that prohibited people from carrying a “really horrible weapon just to scare people like a head ax or something.”

Read more: http://www.foxnews.com/politics/2012/07/29/scalia-opens-door-for-gun-control-legislation/#ixzz223dpP3EG

What does that mean? I've never heard that argument before.

I'm mostly worried about the "stop anonymous stockpiling of ammunition over the Internet" thing.

[HankB]

Chris Wallace actually used a term like "technological innovation" in his interview with Scalia when referencing modern guns.

Dangerous ground for a journalist, since when the 1st Amendment was written, there was no radio, TV, Internet, wire services, or even electronically typeset newspapers.

[Tallpine]

Chris Wallace actually used a term like "technological innovation" in his interview with Scalia when referencing modern guns.

Dangerous ground for a journalist, since when the 1st Amendment was written, there was no radio, TV, Internet, wire services, or even electronically typeset newspapers.

They need to limit keyboards to 10 WPM 

[TommyGunn]

All of which are de-mil'd with disabled weapons.  You can no more own a tank with a cannon as you can a field piece...meaning every round must be registered as a DD.

And this is relevant ... how  The only thing preventing such a person from registering the shellss is $$$$.
That is, unless he/she is in a state that prohibits NFA ownsership.

That doesn't make any sense. 200 years ago, guns like the AR would have been in that category, because carrying thirty (or a hundred) single-shot rifles seemed implausible. Two hundred years from now, we may have nuclear bombs we can carry in our pockets.

Besides, Mr. Scalia should explain how "keep and bear" somehow implies that we can only keep those arms we can bear. The language of the amendment implies no such thing as Scalia claims. As has been pointed out, letters of marque and reprisal are also constitutional. I.e., privately owned and operated warships.

  Nuclear bombs are ordnance.  You do not generally "keep and bear" ordnance.  A cannon ball might be considered ordnance and you could even carry one, but one does not "use" a cannonball by carrying it.
A rifle, be it a M-16 or a Kentucky long rifle is kept and borne by an individual and used by same.
I'm not sure how "letters of marque and reprisal" convey a right to own anything the second amendment does, or does not, speak to.   Such documents would be issued to a naval commander of a warship in service to The United States of America, not Elmer Fudd who owns a tactical canoe.

[Perd Hapley]

 Nuclear bombs are ordnance.  You do not generally "keep and bear" ordnance.  A cannon ball might be considered ordnance and you could even carry one, but one does not "use" a cannonball by carrying it.
A rifle, be it a M-16 or a Kentucky long rifle is kept and borne by an individual and used by same.

The second amendment does not distinguish between small arms, artillery, or cricket bats. It does not specify that the weapons kept also be the type to be borne by individuals, even if Justice Scalia thinks that it does. And again, if nuclear weaponry is miniaturized to the point that we can fire them like shoulder-fired rockets, then the point becomes moot. And again, again, the constitution, as ratified by the states, included the understanding that citizens owned vessels equipped with artillery pieces. (See below.)

I'm not sure how "letters of marque and reprisal" convey a right to own anything the second amendment does, or does not, speak to.   Such documents would be issued to a naval commander of a warship in service to The United States of America, not Elmer Fudd who owns a tactical canoe.

Actually, they were issued to Elmer Fudd, who owned (and armed) his own warship:
http://si-pddr.si.edu/jspui/handle/10088/2400
http://en.wikipedia.org/wiki/Letter_of_marque
http://en.wikipedia.org/wiki/Privateer#Legal_framework
http://www.usmm.org/revolution.html

[RevDisk]

All of which are de-mil'd with disabled weapons.  You can no more own a tank with a cannon as you can a field piece...meaning every round must be registered as a DD.

No, legally you can.  And folks do.  Mostly museums, but some private people as well.  Remember, I handled paperwork on such transactions.  Legally you can buy an AC-130, which makes for interesting conference calls with lots of lawyers.

[MicroBalrog]

I sohlud point out it was quite common for private individuals to own cannon in the 19th century.

I remember especially fondly the tale of the abolitionist newspaper editor who kept two 4-pound guns in his office, trained at the door.

[birdman]

No, legally you can.  And folks do.  Mostly museums, but some private people as well.  Remember, I handled paperwork on such transactions.  Legally you can buy an AC-130, which makes for interesting conference calls with lots of lawyers.

What I meant was it IS subject to NFA restrictions, unlike the common arms this thread is about.  The NFA was found constitutional for the similar reasons Scalia cites w.r.t. Military (not military style) weapons.  My point is, for the topic of this thread, if we are also discussing true military weapons, we have to account for not just RKBA, but additional laws.  Otherwise, we fall into the same cognitive bias/error the liberal media does when it conflates semi and full auto.  Yes, it is possible to have non-demilled military weapons, but those are regulated by laws other than the 2nd ammendment. 

The dominant concern I have, and I'm sure others do, and what I believe was the point of this thread was the conflation of military weapons (select fire rifles, etc) with military "style" weapons (our beloved AR), and the potential "regulation" of those.

The more WE conflate the two, or even treat as similar for the purpose of regulation, the more this error is promulgated, and the worse the potential (e.g.the AWB...which was a ban on "style" except for the magazine size prohibitions).

[Jocassee]

Read this article this morning and it doesn't look good for our future liberty.

http://www.nationaljournal.com/scalia-guns-may-be-regulated-20120729

Lucky for us, mealy-mouthed Beltway "Conservatives" aren't tasked with preserving liberty...because if they were we'd all be *expletive deleted*ed. It's our job. Scalia can go to hell.

[longeyes]

If Scalia is really an originalist who looks to historic intent, then he will sanctify anything that permits resistance to government tyranny because that is the thrust of the Second Amendment, not specifics regarding contemporaneous weapons technology.

[TommyGunn]

The second amendment does not distinguish between small arms, artillery, or cricket bats. It does not specify that the weapons kept also be the type to be borne by individuals, even if Justice Scalia thinks that it does. And again, if nuclear weaponry is miniaturized to the point that we can fire them like shoulder-fired rockets, then the point becomes moot. And again, again, the constitution, as ratified by the states, included the understanding that citizens owned vessels equipped with artillery pieces. (See below.)

It doesn't have to "distinguish" between small arms and artillery.  It says "the right of the people to keep and bear arms shall not be infringed."  It is OBVIOUSLY refering to those "arms" which can be kept and borne. The second amendment to the Constition contains no understanding whatsoever that "citizens owned vessels equipped with artillery pieces."  Where in the second amendment do we see "vessels with artillery pieces?"

Actually, they were issued to Elmer Fudd, who owned (and armed) his own warship:
http://si-pddr.si.edu/jspui/handle/10088/2400
http://en.wikipedia.org/wiki/Letter_of_marque
http://en.wikipedia.org/wiki/Privateer#Legal_framework
http://www.usmm.org/revolution.html

If you can find a privateer today, then I wish you and him the best of luck.  I think a galleon like in Wikipedia's article would last about three seconds against a modern armed navy.  And if you want to buy a modern warship, then I hope you're richer than George Soros, 'cause it's 'spensive as ****to buy and maintainance is even worse!
The days of private people owning ships as effective as those old privateers are long, long past.  

Article 1 of the United States Constitution lists issuing letters of marque and reprisal in Section 8 as one of the enumerated powers of Congress, alongside the power to tax and to "declare War." However, since the American Civil War, the United States as a matter of policy has consistently followed the terms of the 1856 Paris Declaration forbidding the practice. The United States has not legally commissioned any privateers since 1815.

[Balog]

You think bear only refers to carrying on your person, as opposed to say transporting mounted on a vehicle? You're "obviously" wrong.

[MicroBalrog]

TommyGunn:

Owning cannon has been legal, and unregulated by the Federal Government, until the year 1968

[Blakenzy]

But there were legal precedents from the days of the Founding Fathers that banned frightening weapons which a constitutional originalist like himself must recognize.

Well hell, if weapons can be taken away based on how scary looking they are to someone... we're soundly trounced. Let's place a ban on scary faces too?

[longeyes]

Frankly, Scalia sounded anything but brilliant talking to Chris Wallace.  I heard a lot of blather, a lot of bluster, a lot of bravado--and an impatience to get on to plugging his book.  All in all, rather disappointing considering that this man is supposedly a palladium for one of our most cherished rights.

[TommyGunn]

You think bear only refers to carrying on your person, as opposed to say transporting mounted on a vehicle? You're "obviously" wrong.

To "bear" an object is, in common palance, primarily defined as to keep it on one's person. 
To transport mounted or cashed on or in a vehicle, would involve at best a secondary definition and most likely tertiary.

TommyGunn:

Owning cannon has been legal, and unregulated by the Federal Government, until the year 1968

Well, sucks that it's 2012 then, doesn't it?   


Maybe if we all write our kongresskritters we can persuade them to change the law and go back to those that prevail in 1791.  I'd be all for it.