No, Scalia Did Not Say “Gun Control” is Constitutional

Activists often point to Antonin Scalia’s Opinion in District of Columbia v. Heller to claim the Supreme Court ruled that gun control is constitutional. That’s simply not true.

Here are the two sentences, from Section III, they cherry-pick to make this claim:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333.

Gun control advocates ignore not only the remainder of Section III but also the entire 64 pages of the decision.

Section III goes on to clarify the first two sentences:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

And,

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.

And,

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

So, what Scalia is actually saying is this: The Second Amendment, and historical law and precedent, affirm the right of citizens to keep and bear arms for self-defense; and that any restrictions placed upon that right must not violate the intent of the right.

To put it another way: Yes, you have no right to carry any weapon whatsoever in any manner whatsoever and for whatever purpose, unless that weapon and that manner and that purpose comply with the intent of the Second Amendment. Then, you do.

Nowhere in Heller does it say it’s constitutional to ban the keeping and bearing of military-style weapons of war – it says exactly the opposite. When Scalia discusses the types of weapons that would not be consistent with the Second Amendment he cites weapons that are not commonly in use for warfare; like sawed-off shotguns. He goes so far as to suggest fully-automatic M16s are perfectly constitutional.

Nowhere in Heller does it say you can ban the bearing of arms in any place you wish. Scalia actually notes such restrictions must not violate the intent of the right. He gives some examples:

sensitive places such as schools and government buildings… (emphasis mine)

Nowhere in Heller does it say you can arbitrarily restrict who keeps and bears arms. Scalia actually notes such restrictions must not violate the intent of the right. He gives some examples:

…prohibitions on the possession of firearms by felons and the mentally ill…

Nowhere in Heller does it say you can ban the sale of arms or ammunition. Scalia actually notes you can only impose conditions and qualifications that comply with the intent of the right, and only then for commercial activities. It says nothing about the private transfer of arms and ammunition:

…imposing conditions and qualifications on the commercial sale of arms… (emphasis mine)

Heller makes evident what should already be clear: The Second Amendment allows all citizens to carry all weapons that are currently usual in warfare, to the extent that they would be useful for able-bodied citizens to have in the case of being summoned to engage in war; and that this right extends to self-defense as well as in times of war.

Heller also makes clear that the only rules and regulations that are allowable are those that do not violate the intent of that right – which he goes to great lengths in the Court Opinion to clarify.

The Opinion of the Supreme Court in District of Columbia v. Heller is 64 pages long. You have to read all of it, not just two sentences if you seek to understand it.

It is also devastating to the claim that “gun control” is constitutional. Or that Scalia said it was.

We gun-nuts are not insensitive to the horror and pain of gun violence. But we believe The Constitution is indispensable and should be strictly adhered to; or amended via the only vehicle allowed by the Constitution: Article V.

I’ll leave you with the final words from Heller:

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

 

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