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.”
I'm an Instructor at Harvard, a consultant in risk perception and risk communication, author of How Risky Is it, Really? Why Our Fears Don't Always Match the Facts, and principal co-author of RISK, A Practical Guide for Deciding What's Really Safe and What's Really Dangerous in the World Around You. I run a program called Improving Media Coverage of Risk. I was the Director of Risk Communication at the Harvard Center for Risk Analysis, part of the Harvard School of Public Health, for 4 years, prior to which I was a TV reporter, specializing in environmental issues, for a local station in Boston for 22 years.
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.
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