Monday, July 30, 2012

Scalia surprise: Some guns can be banned

Good morning. Welcome to O-Pinion. I'm associate editor Fannie Flono, your host today. The summer Olympics is the hot news right now - and there's been so far only one minor political dustup with Mitt Romney inspiring some angry retorts from Brits when he questioned whether London was ready to host the games. It was a minor slip-up but any slip of the tongue from a presidential candidate is going to get over-the-top news coverage.

But back here at home Supreme Court Justice Antonin Scalia, one of the high court's most vocal and conservative justices, said something that should have gotten a bit more coverage. On Fox News Sunday, Scalia seemed to scale back from what has become entrenched conservative dogma about gun control, saying that Second Amendment leaves room for U.S. legislatures to regulate guns, including menacing hand-held weapons.

According to the National Journal, Scalia said there were legal precedents from the days of the Founding Fathers that banned some dangerous weapons, and a strict constitutionalist recognizes that. He also said that "there were also locational limitations" on where weapons could be carried. Regulation of weapons, he said, "will have to be decided in future cases." Scalia said. But there were legal precedents from the days of the Founding Fathers,

When asked if that kind of precedent would apply to assault weapons, or 100-round ammunition magazines like those used in the recent Colorado movie theater massacre, Scalia declined to speculate. "We'll see," he said. '"It will have to be decided."

"Some [bans or limitations] undoubtedly are [permissible] because there were some that were acknowledged at the time" the Constitution was written, Scalia said. He cited a practice from that era known as "frighting," where people "carried around a really horrible weapon just to scare people, like a head axe or something. That was, I believe, a misdemeanor."

“My starting point and probably my ending point will be what limitations are within the understood limitations that the society had at the time,” he said. “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.”

Well now.

Following the recent Aurora, Colo., movie theater shootings where 12 were killed and dozens were injured, Scalia's view that the constitution does put limits on a person's right to bear arms is a welcome view. It might not be one in which some conservatives or the National Rifle Association share however.

What do you think?


ktown8 said...

Of course you leave out some of the his most important comments. He said it applied to such things as cannons, and weapons of mass destruction. I don't constitute a semi-automatic riffle as to what he was speaking about. If we truly want to be able to stand up against government tyranny, we'll need more than a single-shot riffle or pistol. It's imperative that they not restrict small fire-arms. Otherwise, we'll be at our horrible government's mercy. Don't Tread On Me.

Kevin Broderick said...

Laws only affect the law abiding. Concentrate on punishing the law breakers and crime will lesson

Jonathan said...

Yawn. Do you really think that owning an arsenal worth of semi-automatic weapons is any match for the U.S. military if it truly decided to turn on its citizens? This type of talk is paranoid at best, delusional at worst. Did you celebrate when Timothy McVeigh "stood up" against "government tyranny"? Or the guy who flew an airplane into an IRS building? What's the difference between what they did and what you advocate?

cj said...
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cj said...

Government tyranny? Please - do you chant, "Go Wolverines" in your sleep?

Scalia said -“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.”

Hardly cite a "head axe" as a weapon of mass destruction, so it sounds like conservative judge Scalia feels automatic assault weapons could be on the table for discussion.

First Roberts and now Scalia - what is this court coming to? Oh yea...its senses.

No_clue777 said...

Interesting to see the "right" side of the bench softening their positions on certain things. I wonder if the "left" side will as well.....not holding my breath....

Shamash said...

The criminal element does whatever it wants in this country, despite our laws, so legislate away.

It won't stop illegal drugs, illegal aliens, or illegal weapons.

As with all crime, enforcement is the real issue.

Criminals will always get the weapons they need.

cj said...

Very true Shamash - which raise the question, which is easier to track, someone buying on the black market, or someone buying at a local gun dealer, store? Obviously the store.

So how do we at least better monitor? How about if you buy (just as examples for discussion) a semi-automatic or automatic assault weapon and/or a magazine that holds more that 25 rounds you don't walk out the door wit it. Instead, the weapon gets delivered to the local police station. You then simply go and pick it up. There is no additional intrusion of information, as you need to register the gun anyway. But this way, if you walk in with orange hair, the cops can at least keep track. if you are a repeat, law abiding customer, you probably walk into the precinct and say, "hey, George, here to get my new gun."

Shamash said...


So the police "monitor" the law-abiding citizens, but try to "profile" them based on the their hairstyles.

Not likely.

For every "Joker", there are hundreds of "Rastas" out there.

When I look at the daily roster of thugs in Charlotte, I rarely see a "Joker".

Anonymous said...

I have an idea... to fight drunk driving, let's make it harder for everyone to get a car! That's the ticket!

Archiguy said...

TexGirl's usual hysterical regurgitating of FOX News commentators' and AM radio paranoid ranters' latest bloviations aside, she almost has a worthwhile point this time.

The Drunk Driving Mothers want all cars to have alcohol monitors that will prevent the car from starting unless you blow an alcohol free breath into the machine. Not just drunks; ALL cars. So you can kiss that glass of wine with dinner goodbye. How do they get away with that stuff? Why, the same way the NRA does - they create false slippery-slope arguments and intimidate lawmakers.

But as to guns, nobody has any valid need for handguns or assault rifles. Both have just one purpose: to kill people. Ban them and prevent their sale except to law enforcement and the military, and the U.S. gun homicide rate might actually start to get within an order of magnitude of other "civilized" countries.

cj said...

Shamash - tell me you didn't take the hair color/style as a single, and only example. It was obviously in reference to that "joker" not having his act together. So much so that when he called shooting range the owner was alarmed by how he handles himself. I imagine the police would have been as alarmed. So yes, monitor those that buy such weapons. A watchful eye goes a long ways.

Shamash said...


Here's an idea.

Why not FIRST keep the handguns and assault rifles out of the hands of criminals.

THEN work on taking guns from the law-abiding citizens.

I still think the larger problem is guns in the hands of criminals despite the occasional well-publicized killing sprees of the otherwise law-abiding gun owners.

More people in the US are still killed by the "invalid" use of automobiles (meant for transportation, not killing) than by the use of assault rifles or handguns when you factor out the self-inflicted deaths (suicides).

So it seems to me that as draconian as the MADD suggestions are, they make more sense than banning assault rifles as far as saving lives goes.

Garth Vader said...

Q: Why doesn't Scalia cite any actual laws or court rulings that support his statement?

A: Because there aren't any. Many of the earliest laws mandated that citizens own and carry firearms. It wasn't until 1837 that the first 'gun control' law surfaces. Georgia passed a law banning handguns. It was ruled unconstitutional and struck down. Then in 1927 Congress passed a law banning the mailing of concealable handguns. Then came the Federal Firearm act of 1938. It would seem that gun control laws are a product of the 20th century, not the times of the Founders.

P.S.: The first American Revolution was won by private citizens with "menacing hand held weapons". As will the next.

Shamash said...


Of course I realize the "joker" isn't the only example, but how are the police to "profile" anyone as "not having their act together"?

That's just wide open for abuse and discrimination lawsuits.

Personally, I think that people who dress like they're in Reggae bands don't have their act together, unless they're actually in a Reggae band, of course.

The police will use a standard that will be seen as discriminating against someone based on their appearances, so it will never work.

And while it may stop "the joker" it may not stop a Timothy McVeigh or a Breivik (Norwegian mass killer).

cj said...
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cj said...

Police are pretty good at profiling and they and other law enforcement do it all the time (yes at airports and obviously, are encouraged to do it in a number of southwestern states). The simple act of having to pick up the weapon at the station and not walk out of the store with it simply can not hurt. If it catches the joker and not McVeigh - it is a worthwhile step. Personally, I think semi automatic and automatic assault weapons should be confined to shooting ranges (both kept and shot only there). Discussion is needed. and common ground found within the continuum. I think most know the common ground from the one end - there is a right to bear arms and hunting guns and concealed weapons are absolutely acceptable. No retreating from there. The issue is how much further out do we go. If one says assault weapons, then it is an easy step to shoulder fired weapons. To me assault is the line that crosses from hunting, sport and protection to "not necessary" accept for the thrill - so confine to the range. Others, including yourself absolutely can disagree, what is necessary is discussion and an appreciation that a line needs to be drawn - as Scalia acknowledges - and as he acknowledged our Founding Fathers also acknowledged.

cj said...

As far as other points you are touching on - many are well grounded. Just like with immigration, there is no single solution (e.g., build a fence, deport all), we need a complete solution, including a national database and mandatory jail time for U.S. business owners that then hire illegals (take away the pay check, take away the incentive).

Same with weapons - is going to a police station going to be a cure all? No, just another step in the program. You do a crime involving a gun - hard time, no parole. You have criminal record - no buying guns. You kill someone - see ya. You draw your concealed weapon (even if it is to stop a crime in process) and you shoot or kill an innocent person in the process, you go to jail. And then we have the discussion on where do we draw a line on types of weapons.

Archiguy said...

Shamash - It's too easy to say "let's just keep the guns out of the hands of criminals". Praytell, how do we do that?

One presumes that since criminals may have a difficult time passing background checks, most of the guns they have are stolen from people who have bought them legitimately. And that's the crux of the problem.

Gun advocates say that arming people will save lives because they'll shoot the villain before he has a chance to shoot them. In reality, the gun gets found by a 6 year old who shoots his brother, or the owner decides to use it on his cousin to settle a gambling debt, or an intruder turns it on the owner himself, or it just gets stolen.

It's a tragic myth that arming the populace will make them safer. The staggeringly number of handgun homicides in the U.S. - many orders of magnitude greater than anywhere else in the world - is proof of that folly. The real crime is how the Second Amendment has been perverted and misinterpreted to justify this culture of violence in America.

Shamash said...


I disagree. It's much easier to say "take the guns out of the hands of the law-abiders" because we know they'll comply.

We shouldn't do this just because it's easier than taking guns away from criminals.

To me, that's just a copout, and an example of a police state going after the easiest targets just because they can.

Shamash said...


Your other point about who gets killed by the law-abiding gun owners has some merit.

Having a gun probably is a temptation for some to abuse that right and there are always accidents and stupidity to consider (think about riding lawnmower accidents).

OTOH, you also have a large number of suicides by handgun. While others may disagree, I don't have a problem with that.

Garth Vader said...


Please provide a properly sourced quote of the Founding Fathers confirming the "line" you refer to.

There are scores of writings from the Founders explicitly advocating for the people to have the ability to resist and rebel against government with arms:

"The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." - Thomas Jefferson

cj said...

Scalia acknowledged the right to bear arms did not extend to all weapons of the time - and would not today. I'll let him provide the sourcing.

If the discussion turns to defending against our government, our armed force, or that of another country, then there is no need for discussion as you must then feel citizens can purchase 50 calibers, bazookas, tanks, etc. and then walk into a 7-11 with the 50 caliber in their hands; attend their son's soccer game with a hand grenade. If that is where you honestly are - that's fine - completely your right, but very, very few truly feel that they must arm themselves against our government (and its extended entities including the police) and even less (are there really any) feel we need to prepare for an attack from a foreign country's attack. And all would acknowledge that even an assault weapon or a shoulder fired weapon stands little chance against an armed army. Which leaves an attack by a terrorist cell (be it al-Qaeda, white supremacists, or anti-government nuts) - which I'll leave to the pros to combat.

Garth Vader said...

cj - How nice of you to presume to think on behalf of the entire populace, while simultaneously backtracking on your claim about the "line" the Founders drew.

Without citizens arming themselves against the government the United States wouldn't exist.

And YOU made the claim about the Founders having declared a "line". Back it up or take it back.

Of course your use of inflammatory terms like "assault weapon" show your rather broad ignorance of firearms in general. The media attempted to precipitate fear by remarking that Holmes's AR could fire "an astounding 50-60 rounds per minute" without pointing out that any trained shooter can fire faster than that with most any standard pistol with a gravity-drop magazine.

P.S.: You can buy a Barrett .50 right here in town, and it's the owner of that 7-11's right to prohibit you from bringing it onto his/her property.

P.P.S: "Anti-government nuts" = "Founding Fathers"

Archiguy said...

Shamash - The copout is continuing to say that there is something that can be done to keep guns out of criminals when existing gun laws clearly CANNOT do that. The only thing that CAN do that is simply to reduce the number of guns in circulation.

Criminals seem to have no problem getting as many guns as they want, and there's nothing law enforcement can do about it. If there are less guns in circulation, then it stands to reason there will be less of them to get stolen by criminals and thus "fall into the wrong hands".

Since taking them away from "law abiding citizens" is not an option except in the paranoid fantasies of the NRA and people who listen to them, the answer lies in limiting their manufacture and sale to legitimate law enforcement organizations and the military.

If there's another way, I'd sure like to hear it. But saying we should just "enforce existing laws" when that clearly isn't working is one way the NRA prevents a serious conversation about gun violence from happening. That, and issuing dire warnings about Obama coming to take your guns away. It's positively surreal.

Meanwhile, people keep dying in bushels. Only in America. Seriously, ONLY here.

Garth Vader said...


Your surreal fantasy of a world where the police are as pure as the driven snow and the military don't turn their weapons on the citizenry is twice as ridiculous as anything the NRA says. The #1 gun murderer of the 20th century is GOVERNMENTS WHO OUTLAWED PRIVATE FIREARMS OWNERSHIP.

Archiguy said...

Garth - Actually, no, there's NOTHING as ridiculous as the rubbish the NRA belches out in every press release. It's pablum for the weak-minded and easily misled.

And this is a democracy; maybe you haven't noticed. Nobody's talking about "outlawing gun ownership" and we don't need to worry about "government tyranny". Again, those are the paranoid fantasies of people who long ago lost the ability to look rationally at one of the most serious issues facing this country, egged on by the NRA. They are lost souls, and they have too much blood on their hands.

cj said...
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cj said...

Garth - not back tracking. Our rights are defined as "bear arms" - meaning to carry arms - as Scalia points, cannons were not carried and were not part of the definition - or so he interprets - maybe he is really a closet liberal like Roberts.

I don't feel it out of touch to say that most people do not feel a compelling need to bear arms to defend against our government or someone crossing our border with their army (if it gets to that the bomb is coming first so your bullets will do little good). I'm sure there are some concerned, but then some folks still think Elvis is alive.

Sorry to be politically incorrect and use assault weapon. Could have used "pointless gun," but will use semi-automatic and fully automatic as the more proper term in future. Also didn't mean to imply a semi-automatic rifle when I said 50 caliber, was referencing a 50 caliber machine gun - which of course is illegal.

Not an expert on guns, but then appreciate that being "learned" in a subject also does not make one an expert, or defining voice on how things should be. But it does make for better discussion - so thank you. Other people's opinions are only of value if you listen to them - don't have to embrace them, but listen.

P.S. Founding Fathers were not anti-government, just not into government without representation. If they were truly anti-government, so many of them would not have ended up leading said government. Ah but we digress. Bottom line - There are already restrictions on arms. Question will be where will that line move...if at all? Discussion is the first step in the process. Thanks for partaking.

cj said...

Ah yes, actually just got back from Ind. Hall - all men are created equal, etc. of course, not all men were considered equal in the eyes of our founders, nor were women (caused quite the stir in John Adams' house - wife Abigail was non to pleased) - their rights had to be granted by the government. Our Founders knew they could not get it perfect (just more prefect ala the Constitution), so they provided the process to amend - to have the government - representing the people, to extend the unalienable Rights, (including Life, Liberty and the pursuit of Happiness) to all. So glad they allowed the government to grant rights.