Some in the media—including conservative media—are claiming that conservative Justice Antonin Scalia is saying the Supreme Court can limit the Second Amendment right to keep and bear arms.
That’s not exactly what he said.
Scalia has a new book, and he was on Fox News Sunday to discuss it. Given how rarely justices give general-media interviews, it was predictable that host Chris Wallace took most of his time trying to draw Scalia out on hot-button issues, from the Court’s 5–4 (incorrect) decision upholding most of Obamacare, to abortion and Roe v. Wade, to the Second Amendment.
Scalia’s comments on this last topic managed to make national headlines. They’re all some variation of: Scalia Says Court May Limit Second Amendment. But what Scalia said is that the Second Amendment only applies to weapons that an adult can carry (because the Constitution refers to the “right to keep and bear arms”), and then suggested that handheld grenade launchers might not be protected by the Second Amendment.
Some suggest that Scalia’s trying to goad Democrats into pushing gun control before the election, giving them a head-fake to think the coast is clear to go after guns. The theory goes that this would rally gun owners to mobilize against Barack Obama (not that they need any encouragement on that score), and allow Republicans to win this November.
To be perfectly clear, speaking as a lawyer, law school faculty member, and legal journalist who has covered the better part of a hundred cases at the Supreme Court—the justices never, ever do that. None of them do. They don’t try to provoke legislative or regulatory controversies through their public speeches. Quite the opposite. They strenuously avoid such public statements, and if they ever make provocative statements it is in their carefully-crafted opinions handed down in specific cases brought before them.
Instead, all Scalia is saying is what every constitutional lawyer in the country knows: No constitutional right is absolute; there are burdens on each right that do not violate that right. It can give the wrong impression to refer to “limitations” on any right; it says that certain things are either beyond the definition of that right, or are a burden that the Constitution allows. For example, certain types of speech—such as perjury, fraud, impersonating a federal agent, and inciting people to engage in violence—are not protected by the First Amendment.
The textbook example that most people have heard is that you don’t have the right to falsely shout “Fire!” in a crowded theater. Certain narrow types of content—such as reporting on classified movements of our military during a war—are a burden on what is usually protected speech, but is not a violation of the First Amendment because it satisfies “strict scrutiny” by being narrowing tailored to achieve a compelling national interest. Government has even more latitude to regulate the time, place, and manner of speech. And in a limited public forum like a library, or a nonpublic forum such as an airport, the First Amendment allows even more restrictions.
The same holds true for the Second Amendment. This interview was in the context of Scalia explaining that the only legitimate way to interpret the Constitution is originalism: applying the words of the Constitution in accordance with what a person of average intelligence and public awareness would believe they meant at the time they were adopted. Technology might change, but the Constitution’s words do not, so you apply exactly the same meaning and principles to issues today that you would in 1791 (when the Bill of Rights was ratified by the states).
This gives a good judge what he needs to determine what is protected as part of the right to keep and bear arms. First, an average adult must be able to “bear”—i.e., “carry”—the weapon in question over distances, so cannons and anti-aircraft guns are not protected. Second, in 1791 “arms” were different than “ordnance,” which refers to anything explosive. Ordnance was unprotected, which means that RPGs, bazookas, rockets, and mortars are not covered by the Second Amendment. And certain locations were regarded as places where firearms can be barred, which today would explain why you can’t carry a gun into the White House, Capitol building, or Supreme Court.
Nino Scalia was simply explaining that these are the principles he will apply in deciding the contours of the right to keep and bear arms in the various settings where a case could emerge, just as they guided his writing the majority opinion in D.C. v. Heller in 2008 and Justice Samuel Alito when writing the opinion in McDonald v. Chicago in 2010.
As Justice Clarence Thomas noted in a 1997 case, Printz v. U.S., the Founding Fathers regarded the right to bear arms as the “palladium of the liberties of the republic”— a rare and precious metal fused into the alloy of our constitutional freedom. We have every reason to believe Scalia, Thomas, and Alito will uphold it as such in future cases. And if the original meaning of the Second Amendment is upheld, it will be as a broad and robust fundamental right guaranteeing that every law-abiding and peaceable American citizen has the right to unapologetically defend himself, his family, and his nation against all forms of public and private violence.
Now that’s the kind of headline I’d like to read.
Breitbart News legal contributor Ken Klukowski is on faculty at Liberty University School of Law and a fellow at the American Civil Rights Union, and was special assistant to a former president of the National Rifle Association of America.