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Opening Arguments

Second thoughts

Some conservatives are freaking out because they think Supreme Court Justice Antonin Scali a, in an interview with Chris Wallace of Fox News, is waffling on gun control and won't be as staunch a Second Amendment supporter as they had supposed he would be:

Scalia, who claims he interprets the Constitution only by examining the text and the laws and philosophies in place at the time it was written in 1787, said weapons laws in the newly-founded United States are a guide for dealing with semi-automatic rifles, 100-round magazines and other advances in firearms technology in the last 225 years.

Scalia, who is the longest-serving justice currently on the court, pointed to a law called 'frighting,' which prevented citizens from carrying certain weapons -- like beheading axes -- that were only meant to scare other people.

'That was, i believe, a misdemeanor. So yes, there were some limitations that can be imposed,' he told Fox News Sunday.

The Supreme Court took up gun control in 2008 with District of Columbia v Heller, when it struck down in a 5-4 decision a 1978 Washington DC law that prohibited citizens from owning handguns.

Writing for the majority, Scalia said at the time: 'The second amendment, means what it says. People have a right to bear arms.'

On Sunday he said the court's opinion did not decide which gun control laws are allowed -- only that cities and states cannot ban them entirely.

I think Scalia is just stating the obvious. No right is absolute; it must compete with other rights. Our rights under the Second Amendment must compete with our right to be safe and secure -- as much as we can be -- in our persons and property. How gun rights are seen in that light depends on our interpretations of the Constitution, current law, court precedents and historical context.

If I'm reading Scalia right, and I think I am, he bases his "contextual" approach largely on the bear part of right to keep and bear arms -- if it's something we can carry, like rifles, pistols and shotguns, then it's covered by the Second Amendment. If not, maybe not so much. His review of the material available to the founders has led him also to conclude that ordnance (explosives like hand grenades and things like flame throwers) would not be covered, either.

To me it's an interesting point to ponder how a contextualist should consider original intent. It's obvious that the founders did not have mere self-defense in mind, nor were they thinking about hunting. To them, the right to be armed was a necessary check against tyranny, and that meant chiefly an oppressive government. So what the Second Amendment  meant to guarantee was that ordinary citizens could be roughly as armed as the average soldier. Weaponry has advanced to the point where citizen and soldier are nowhere near equivalency these days. Anybody care to argue that, given original intent, they should be? Anybody want to see that kind of weaponry floating around in the woods?


Mon, 07/30/2012 - 5:32pm

I can neither disagree nor agree 100% with Justice Scalia on any right not being absolute.

Our U.S. Constitution is a concept.

Concept definitions are dealt with from the top down, not the bottom up.

The concept of all of our rights in the U.S. Constitution as a gift from God or gift from the federal government I will disagree with completely.  The federal government was purposely denied the power to interfer with any of these rights.  Good or bad that is the concept.  Definitions of the problems and fixes have to come out of that concept.

Generally in Indiana, the rule is that my rights end where yours begin.

Just because I have a right to own a gun and shoot it doesn't mean I can do it in my suburb backyard.

Just because I can print anything I want, if I have the resourses, doesn't mean I can't get sued for liable statements.

I may have a right to desecrate a U.S. flag, but not one owned by the public.  Protest burning a private property U.S. flag, in a public area downtown, can still get me arrested for a burning ordnance.  At least it should.

Our rights, as far as the federal government is concerned, are fairly absolute.  Prove me wrong.

Attacks against gun ownership are only 50 years old.  Attacks against free speech and free press have been going on for two centuries.

I am sure that none of these have been fully dealt with yet.

Harl Delos
Mon, 07/30/2012 - 9:12pm

The COTUS  doesn't give us any rights' rather it defines and limits the extent of the government - oriiginally the federal government, and as of the 14th amendment, state and local government.

I'm not so sure I want my neighbors carrying around a Kalashnikov, much less a bazooka or a handheld SAM unit.  In 1789, it wasn't far from hostile territory, no matter where you lived, and the handheld weapons of the time didn't penetrate walls and kill innocent victims on the other side.  On the other hand, a short-barrel shotgun which is relatively safe in terms of killing an unseen victim, is outlawed under current law.

SCOTUS has been reticent to define what the second amendment actually says, and that's a shame.  We don't benefit by having unanswered questions.