This is from the Justice Scalia-written majority opinion in the landmark case of Heller v. DC in which the Supreme Court upheld an individual right to keep and bear arms:
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’ s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
This is from Justice Scalia today:
What the opinion Heller said is that it will have to be decided in future cases. What limitations upon the right to bear arms are permissible. Some undoubtedly are, because there were some that were acknowledged at the time. For example, there was a tort called affrighting, which if you carried around a really horrible weapon just to scare people, like a head ax or something, that was I believe a misdemeanor.So yes, there are some limitations that can be imposed. What they are will depend on what the society understood was reasonable limitation. There were certainly location limitations where — . . .
My starting point and ending point probably will be what limitations are within the understood limitations that the society had at the time. They had some limitation on the nature of arms that could be born. So, we’ll see what those limitations are as applied to modern weapons.
How are Scalia’s comments today news in light of what Scalia had written over four years ago? If anything, it reaffirms that Heller is a pretty minimalist decision that only forecloses outright, blanket gun ownership bans but leaves space for an enormous number of regulations as long as they don’t make it virtually impossible for a law abiding adult citizen to own a firearm. Basically, if you don’t want to ban gun ownership outright, Heller isn’t standing in the way of your policy preferences. If you do want to ban the private ownership of guns without a constitutional amendment, then thank God for the Bill of Rights.
