It might seem weird to even ask the question, but Justice Scalia in January of 2011 made headlines by claiming that women are not protected under the 14th Amendment because the Congress of 1868 would not have considered them included in “all persons”. Seriously, he said that.
He likes to call himself a strict constructionist, you see, and claims that all Constitutional law should be strictly interpreted as meaning exactly and only what the framers at the time would have thought about.
The Fourteenth Amendment says ”No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
That would appear to most people (I dare say even most judges) to mean that you can’t discriminate against women in favor of men (or vice versa); after all, both women and men rate as both persons and citizens. To Scalia, however, it doesn’t form the basis for Constitutional protection and equality under the law for women, because the legislature that made the Amendment weren’t thinking of women, who did not enjoy equal rights or even the franchise in 1868. They probably weren’t thinking about gays either. In Scalia’s view only discrimination which a legislator in 1868 might plausibly have thought about is prohibited by the Equal Protection Amendment.
The Second Amendment says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Well, yes, I suspect in 1791 it was possible to imagine a woman with a gun. Justice Scalia would thus have to support the notion that a woman has a right to keep and bear arms that is no more infringable than a man’s. (He has also decided that it isn’t necessary to be part of a well regulated militia to have that right to carry arms).
Since the first weapon which could be considered an assault rifle was invented 127 years after the 2nd Amendment was ratified in 1791, the Congress of the time (the Founding Congress) could not have considered them.
It follows by Scalia’s own reasoning the 2nd Amendment does not apply to assault rifles, or even percussion cap rifles.
Those kinds of weapons were not the kind of “arms” the 1791 legislature could possibly have considered; that’s plainly even less possible than the 1898 legislature considering women to be fully persons and citizens with rights and immunities. Therefore Justice Scalia, at least, should not consider the Second Amendment applicable to any category of weapon the 1791 legislature wouldn’t have considered when writing that Amendment.
I’ve never thought of Justice Scalia as the most intellectually consistent Supreme Court Justice, but after this week’s events I find myself wishing a bit. Can you imagine how much less damage psychotic gunmen today would be able to do if they had to stop and reload their muskets between shots?