You may recall a couple of days ago I wondered, based on his weirdly literal originalism, whether Justice Scalia might support an assault weapons ban since no one in 1791 considered such a thing.
Well, it seems others have wondered the same thing, and unlike me Chris Wallace was in a position to ask the Justice himself:
Got that? He does indeed think that the Second Amendment should be applied considering only those things known to the framers,at least as far as its limitations go.
Wallace specifically asked the same question I did, whether it was correct to apply the right to weapons technologically far advanced beyond what the 1791 framers could possibly have imagined as “arms”:
“What about these technological limitations?” Wallace wondered. “Obviously, we’re not now talking about a handgun or a musket, we’re talking about a weapon that can fire a hundred shots in a minute.”
“We’ll see,” Scalia replied. “Obviously the amendment does not apply to arms that can not be carried. It’s to ‘keep and bear’ so it doesn’t apply to cannons.”
Any limitations on what hand-carried weapons might be legally controlled?
“I suppose there are handheld rocket launchers that can bring down airplanes that will have to — it’s will have to be decided,” [Scalia] added.
So yes, apparently there is a possibility that bazookas and shoulder-fired rocket launchers might be limited! Scalia also noted that:
“There was at the time a tort called “affrighting” which, if you carried around a really horrible weapon just to scare people, like a head axe or something, that was I believe a misdemeanor. So yes, there are some limitations which can be imposed.”"
I think most people nowadays would consider an AK-47 at least as frightening as a head axe, so that seems applicable.
“What limitations are within the understood limitations that the society had at the time? They had some limitations on the nature of arms that could be borne, so we’ll see what those limitations are as applied to modern weapons.”
There were indeed very real and severe physical limitations on weapons that could be borne at the time – a musket could not be fired 100 times in a few minutes, for example, it could only fire once before reloading (which was a slow and laborious process). It doesn’t seem at all unreasonable to me that the amount of firable ammunition a weapon can carry could be limited to a lesser degree, say to fifteen rounds.
Any such limitations would seem to be Constitutional under Scalia’s brand of originalism as long as they don’t limit the weaponry beyond what the limitations of bearable arms were in 1791, which is very limiting indeed. Scalia also mentioned that other limitations could be imposed, including locational limits; that would buck the trend to say the least but he’s saying it’s not a violation of the Constitution per se.
(Note: the only major change in federal gun law that has occurred under President Obama’s administration has been that you are now allowed to carry your firearms into national parks.)
I must confess, I didn’t truly expect him to actually be that consistent when I wrote that first post, but it sounds as if Justice Scalia, one of the most conservative and pro-gun members of the Supreme Court, is at least open to the argument as I made it, if it were so presented.