Gun Rights Activists Say Gun Control Is Unconstitutional. Antonin Scalia Disagrees.

The Second Amendment is “... not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

When the US Supreme Court refused to hear an appeal by gun owners of an Illinois ban on semi-automatic “assault” rifles and high-capacity ammunition magazines, Justice Antonin Scalia dissented, lamenting that lower courts that uphold limitations on gun ownership have been ignoring Supreme Court precedent on the Second Amendment. That is curious since, in his ruling enshrining the individual right to own guns, Scalia himself all but invited such bans. The Illinois ban seems consistent with Scalia’s own precedent-setting language.


In District of Columbia v. Heller, Scalia himself explicitly allowed for and even seemed to invite reasonable gun control, writing:

“Like most rights, the right secured by the Second Amendment is not unlimited…” It is “… not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

“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.”

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

The court even recognizes a long-standing judicial precedent “... to consider ... prohibitions on carrying concealed weapons.”

Let’s consider that Supreme Court precedent-setting language in light of current gun control proposals, all of which are blindly opposed by the paranoid libertarian fringe of the gun rights movement that calls any effort to limit gun control unconstitutional. The following ideas for reasonable gun control currently being proposed are explicitly sanctioned by the Supreme Court as constitutional:

“… longstanding prohibitions on the possession of firearms by felons and the mentally ill,”

 “… laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,”

 “… laws imposing conditions and qualifications on the commercial sale of arms.”

(Like background checks, waiting periods, and closing the loophole that requires background checks on gun buyers in stores, but not on those who buy guns at gun shows (at which many stores set up and sell guns.))

Scalia also writes that the Supreme Court considers it constitutional for governments “... to consider ... prohibitions on carrying concealed weapons.”

And specifically as to the Illinois ban on military-style "assault" rifles and high-capacity magazines, Scalia seemed to allow for that too:

“… the sorts of weapons protected (by the Second Amendment) were those “in common use at the time”. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” 

This seems to almost explicitly state that semi-automatic weapons with high capacity magazines are not constitutionally protected. Yet curiously Scalia now seems to infer that the Illinois ban on ‘dangerous and unusual weapons’ ignores the precedent of his own language in District of Columbia v. Heller.

Gun rights advocates protest that any of these limitations would be unconstitutional. They are simply wrong. The ruling that gives them the right to own guns is expressly “... not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

In the 1970s a handful of fanatical libertarians took control of the NRA in a coup and turned guns into a symbol of their absolutist demand for individual liberties. That symbol has been adopted by anybody upset that the government has too much control over their lives, which includes a lot of people with a more conservative political philosophy.

Yet the majority of Americans, including the majority of NRA members, support the idea of reasonable gun control, like the controls specifically sanctioned as constitutional by the Supreme Court. So why do the gun rights absolutists win? They care more. They are deeply upset that society that is changing on many values questions in ways they don’t like. They see these changes as signs that they don’t have control over their society and their lives and their futures. Powerlessness is scary. We all need a sense of control; we all need it to help us feel safe. The deep fear of gun rights extremists exceeds the general public’s fear of guns, either the personal fear of being shot or the general moral fear that innocent people will be shot. There is a passion gap, which is why the NRA is winning the political battle over gun control.

To counter that imbalance, the majority that wants gun control should start using Justice Scalia’s own ruling to demonstrate that being conservative does not mean rejecting any and all gun control. The concern that government has too much control over our lives does not mean, even to arch conservative activist Justice of the Supreme Court Antonin Scalia, that government can’t have any. And it is the very ruling on the Second Amendment establishing the individual’s right to own guns that says so.        

--

3D printing might save your life one day. It's transforming medicine and health care.

What can 3D printing do for medicine? The "sky is the limit," says Northwell Health researcher Dr. Todd Goldstein.

Northwell Health
Sponsored by Northwell Health
  • Medical professionals are currently using 3D printers to create prosthetics and patient-specific organ models that doctors can use to prepare for surgery.
  • Eventually, scientists hope to print patient-specific organs that can be transplanted safely into the human body.
  • Northwell Health, New York State's largest health care provider, is pioneering 3D printing in medicine in three key ways.
Keep reading Show less

Why Elon Musk doesn't like Jeff Bezos's space colonies

Elon Musk took issue with recent ideas for space exploration from Jeff Bezos.

Getty Images
Technology & Innovation
  • Elon Musk and Jeff Bezos have sparred over space exploration previously.
  • Musk wants to focus on Mars while Bezos has the moon and space colonies as goals.
  • In a recent tweet, Musk called out Bezos's plans for space colonies as unrealistic.
Keep reading Show less

10 new things we’ve learned about death

If you don't want to know anything about your death, consider this your spoiler warning.

Culture & Religion
  • For centuries cultures have personified death to give this terrifying mystery a familiar face.
  • Modern science has demystified death by divulging its biological processes, yet many questions remain.
  • Studying death is not meant to be a morbid reminder of a cruel fate, but a way to improve the lives of the living.
Keep reading Show less
Big Think Edge
  • Push Past Negative Self-Talk: Give Yourself the Proper Fuel to Attack the World, with David Goggins, Former NAVY SealIf you've ever spent 5 minutes trying to meditate, you know something most people don't realize: that our minds are filled, much of the time, with negative nonsense. Messaging from TV, from the news, from advertising, and from difficult daily interactions pulls us mentally in every direction, insisting that we focus on or worry about this or that. To start from a place of strength and stability, you need to quiet your mind and gain control. For former NAVY Seal David Goggins, this begins with recognizing all the negative self-messaging and committing to quieting the mind. It continues with replacing the negative thoughts with positive ones.