Scalia on Gun Control

Starts at about the 6:50 mark. Good interview though:

I now stand by the fact that I wouldn’t read anything into this. The media is going crazy. The left is saying that Scalia is supporting a right to rocket launchers, and the right is saying he clearly believes we can restrict AR-15s and magazines. I think Justice Scalia is saying no such thing. He is saying it will have to be decided. This is simply fact. There are no tea leaves to be read here.

36 thoughts on “Scalia on Gun Control”

  1. Well – I think with both extremist sides going crazy over two sides of the coin as it is, I think we may be okay after all.

    Still gotta keep the pressure up though.

  2. I’d like it a lot better if he was saying that “shall not be infringed” means “shall not be infringed”.
    He’s saying that “shall not be infringed” means “may be infringed”. I don’t like hearing Scalia say that, because it’s the opposite of what the Constitution says. He’s supposed to uphold the Constitution, not rationalize its destruction.
    The Second Amendment clearly prohibits even so much as mere infringement of the right to keep and bear arms. Those who disagree with it can try to change the Constitution, but they damn well better respect it, and not “interpret” it to mean the opposite of what it says.

  3. I think that we could all live with what Scalia would say that the 2nd applies to. Should the freedom of speech only apply to hand written and mechanical printing presses in use when the Bill of Rights was passes? (August 21, 1789)
    From Heller:
    But why isn’t it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people’s weapons — that was the way militias were destroyed.

    Blackstone thought it was important. He thought the right of self-defense was inherent, and the framers were devoted to Blackstone.

    You mean you can’t have any more arms than you would need to take with you to the militia? You can’t have a — you can’t have a — you know, a turkey gun and a duck gun and a 30.06 and a 270 and — you know, different — different hunting guns for different —

    1. We have lots of gun control right now and we support much of it. Why is the press saying that what he said will lead to gun control. Did everyone forget the 20,000 gun laws that we already have on the books?

    2. In Heller one of the points was that machine guns were not in common use and Gura left CLASS 3 items under the wheels of the bus. But one can ask that if congress passes a law that restricts something then how can one say that the law is valid because the item the law restricts is not in common use?

      1. I do think that we can still claim “common use” for machine guns, even though Congress has outlawed them: they are in common use among our military and even our police.

        Thus, with the Second Amendment protecting things that would be useful in a militia, it ought to follow that these things ought to be protected, too.

        Of course, ought to be decided and What the Supreme Court Decides(TM) are two different things…

      2. You’re not going to save machine guns in the courts. It’s just not going to happen. The only way you’ll see the restrictions on machine guns eased is through the legislative process, and that route is currently not possible.

        We probably lost the battle for machine guns in 1934. Whether we here agree with it or not, Americans have never really objected to machine guns being restricted, which suggest the people don’t see them as part of the right to keep and bear arms.

        1. Agreed, we will need changes in our culture I simply cannot imagine happening in my lifetime before we see legislative and judicial progress here. The left has after all controlled the dialog on this for generations, for e.g. my father’s entire life. For an overwhelming majority of the lifetimes of those politically aware, 9 decades or more (78 years ago plus, say, a minimum age of 12 to make the math simple).

        2. We have not “lost it”, certain people have never fought it. Give us a fight and there will be a fight.

            1. A fight FOR something.

              Stage 1: Start talking about this topic more. Spread idea.

              Stage 2: After idea reaches critical mass of supporters (really only needs a few percent – we don’t have a powerful lobby to oppose).

              Stage 3: Minor amendments are filed to weaken the ban.

              Stage 4: (Quite a while later) 922(o) is repealed.

              (by the way, there already are groups that want to remove suppressors from NFA – this should work similarly).

                  1. No, I don’t believe I do. I don’t think you realize how hostile most members of Congress would be to easing the machine gun laws. Even getting a bill to remove silencers right now would likely fail. And it’s likely to fail no matter how much arm twisting NRA does, because the number of gun owners who want to own machine guns and suppressors is not large enough to overcome the inertia against it both in Congress and the public at large.

                    You’re in hearts and minds territory with NFA weapons. You have to lay the groundwork among the population to create a constituency in favor of easement of the regulations. We don’t have that yet, though it’s getting closer for suppressors.

                    1. Sebastian, I think you’re a defeatist on machineguns …

                      The reality is that the Hughes amendment didn’t actually pass, it was only through progressive falsification that it was included in the final bill and passed in error (deliberate).

                      And this was in ’86 when we were just starting to go on the offensive as a community.

                      You say the votes arent’ there? How about we find out!

                      How many of you would buy an M-4 if you could buy it for only $1500? Or an FAL for $2000?

                      Or maybe you just invest $250 in parts and convert the AR you already have.

                      Hey, I’m in, and I know lots of guys who never make a peep about gun issues who’d be in line with me …

                    2. Packetman (can’t diretly reply to you either due to too deep nesting or a display bug, but no matter):

                      Yes, the Hughes amendment was passed on a bogus voice vote, but the Constitution isn’t too specific on how each arm of the legislature does its thing and presents bills to the President. Given that, the end product of the FOPA, including that amendment, was entirely legitimate, legal, Constitutional, etc.

                    3. There is a cost to trying. There will a lot of legislators who would be with us on most things, who will not be with us on this. Once you ding their grades and deny endorsements because they wouldn’t vote to lift the Hughes Amendment, you’re going to start losing friends quickly.

                      You have to decide if trying on machine guns is worth the rest of everything you could try to accomplish that won’t cause you to lose friends in the legislature. The take no prisoners approach doesn’t really work.

                    4. I am probably about as adamant as any wacko (aka L. Neil Smith) that the Second Amendment means that *any* Federal law, banning *any* weapon, is unconstitutional. (Nuclear weapons in my mind are a non-sequeteur–most people who can afford it won’t be insane enough to use it, and most people who are insane, won’t be able to afford it…and those who *can* afford a nuclear weapon, and are insane enough to use one, won’t be stopped by silly “laws”.)

                      Having said that, I agree with Sebastian: the hearts and minds to legalize machine guns, grenades, and what-not, aren’t there…but they can be. Suppressors are getting there, because we’re educating people about them, and de-myth-esizing them. The same thing needs to be done with machine guns.

                      Do you want machine guns legal? Start out by having a special shoot at your local gun club, where the public is encouraged to shoot a machine gun or two. Make sure everyone who shoots knows how to do so safely–we don’t want eight-year-olds dying because neither they nor their police-officer parents know how to handle a machine gun properly–and make sure everyone has fun.

                      And we need to explain just *what* machine guns are useful for, and why you will likely be unable to just “mow down” people (even in crowds) with one…even if you’re well-trained in their use.

                      Finally, expect this change of the hearts and minds of people to take a decade or few…remember, slow and steady wins the race!

                  2. Oh, and I forgot: wouldn’t it be fantastic when, whether by court or by law, machine guns and suppressors (and other arms, for that matter) become legal…and the only ones who have a fit are Brady and VPC shills, if they are still around?

                    And wouldn’t it be fantastic if the attitude of everyone else were, “Well, of *course* they should be legal! They’re protected by the Second Amendment!” but otherwise don’t care, one way or the other?

                    If we could secure the hearts and minds of the people, nothing else much matters!

  4. I was busy all day yesterday and am just catching up. I first saw all the press, the right wing and left wing postings of what they each heard. That was wild, when I finally got to listen to the clip, I was sure I missed something. Really?? The guy only says it hasn’t been decided.
    This only proves what everyone smart is saying, we need to get President Obama into retirement this November using our vote. We need to press Romney HARD on picking good gun friendly judges to sit on the Supreme court.

    1. To underline your point, Scalia said these sorts of things will be decided, that is it’s obvious to him they’ll come before the Federal judiciary.

      Don’t know how successful we’ll be at “press[ing] Romney HARD”; if I had any confidence in this area I’d be more enthusiastic about him. Heck, just like a perfect storm allowed Obama to win in 2008, it’s only Obama’s total awfulness that gives a Northeastern RINO, son of a north-midwestern one who jousted with Nixon and lost, a change of winning this year.

  5. @Harold

    Yes, the Hughes amendment was passed on a bogus voice vote, but the Constitution isn’t too specific on how each arm of the legislature does its thing and presents bills to the President.</blockquote)

    I'm not argueing that the House and Senate are not in charge of how things get voted on; my point is that the majority did not want machineguns banned. And this at a time when we were just starting to get our feet under us, legislatively.

    Given that, in general, our agenda is more popular now than then, I don’t see where it would hurt to try to get a bill passed to repeal Hughes, if for no other reason to actually gauge the political climate.

    1. The irregularity of the Hughes Amendment was apparently that the chair apparently ignored calls for a recorded vote. Suggesting this meant that the majority did not want machine guns banned is a stretch. If that was the case, the Senate could have easily responded to NRA’s calls to remove it. They didn’t Ultimately, it passed, because NRA decided FOPA wasn’t worth killing over the MG issue. Most of the legal experts who were around at the time, including Dave Hardy, thinks FOPA was too important to kill over the MG issue. So it was passed, and hoped that the MG issue could be addressed after the fact. Congress ignored calls from NRA to address it. I’ve never met anyone who knows DC and works in Congress who thinks the machine gun issue is doable in the near future. Suppressors are probably going to come first.

      1. Suggesting this meant that the majority did not want machine guns banned is a stretch.

        Not a stretch at all, since there was a recorded vote on the Hughes Amendment (starting around 6:00), a vote that anti-gunners lost 297 to 124.

        1. That was not the vote on the amendment itself. That was a motion for the committee be able to hear Hughes Amendments. The motion that time failed. He later makes a motion for unanimous consent to substitute one of Volkmer’s amendments with his, and it passes by recorded vote, and the substituted amendment later passes by voice vote.

  6. You know, I think that Scalia is wrong on cannons. The Constitution says that the Congress shall have the power to issue Letters of Marque and Reprisal. How exactly are you supposed to use a Letter of Marque without having a ship loaded with cannons for naval combat?

    Clearly they considered private ownership of heavily armed warships to be normal. And if they didn’t see a problem with it, how can the gun grabbers come along now and say that we can’t have them?

    Whoops, there’s a great huge hole in the NFA section for Destructive Devices.

    1. If they were to issue such a letter today, that could be construed to be possessing a DD or MG under “authority of the United States”

      1. True, but since we can prove that private citizens owned and operated the most awesome weapon systems of the time, I think we have a pretty good shot at convincing the originalists that almost all gun bans are beyond the power of the government.

        We should at least start making the argument, if for no other reason than to watch the anti-gunners foam at the mouth and clutch their chests. I’d pay money to see certain gun grabbers have to deal with the “If it was good enough for Timothy Peirce, it’s good enough for me!” argument.

        1. Indeed, one of the things that annoys me about the “But we *must* have restrictions on small arms, because think of how bad the United States would be if rocket launchers, cannons, machine guns and flame throwers were legal!”

          Never mind that some of these things *are* legal; that some of these things are so large an expensive that most people will simply *not* own them, even if they were legal; and that they would be easy to trace to the owner, if they were abused. It’s a fact that private citizens *owned cannons* at the time of the Founding, but we didn’t have blood run in the streets *then*. Why would things suddenly change *today*?

          By the way, as far as I can tell, the cannons I see fired every year at our local Colonial Days celebrations are owned by private citizens. I’ve hefted cannon balls, and I’ve seen grape shot prepared for a cannon…yet I haven’t heard of anyone in the news lately, blasting a bank with buckshot, or shooting open a safe, with one of these beasts. Or any City Halls shot up by Gatling guns (which *are* legal, because they are pre-1899 technology).

          Of course, I could be wrong about the frequency: the news only reports on *rare* events, so I guess these might be common-day occurrences! :-)

  7. As I recall, the state of Florida issued a Letter of Marque in the late 1970s. Drug runners were hijacking family pleasure boat in international waters. The boats would be found a few weeks later stuffed full of drugs and the families never found. The culminating incident came when a family successfully repelled boarders. Unfortunately it was in Bahamian waters and the government of the Bahamas was not pleased with American interlopers shooting their pirates. I know of the Letter because I was asked to join a crew. I politely declined.

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