This just in from nationaljournal.com: “Justice Antonin Scalia, one of the Supreme Court’s most vocal and conservative justices, said on [Fox News] Sunday that the Second Amendment leaves room for U.S. legislatures to regulate guns, including menacing hand-held weapons.” Did he actually use the word “menacing?” And notice: legislatures. Not legislature. “It will have to be decided in future cases.” According to the National Journal, Scalia said that “there were legal precedents from the days of the Founding Fathers that banned frightening weapons which a constitutional originalist like himself must recognize.” Citation? And did he actually use the word “frightening”? Apparently, “There were also ‘locational limitations’ on where weapons could be carried.” With friends like these . . .

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57 COMMENTS

  1. Menacing? Frightening?

    Making distinctions among weapons by subjective terms such as “menacing” and “frightening” is akin to a prejudice against birds that have feathers.

    That’s it! Scalia lost my vote. Oh wait… we don’t get to vote for SCOTUS justices. Darn. 😉

  2. This is nothing new. Heller contained language which made local restrictions permissible.

    Brad

  3. I’ve said it before and I’ll say it again, the SCOTUS is the greatest threat to liberty and Constitutional rights in the country, maybe even the world. Why? Because whatever they decree (which, these days, is always in line with their political activism rather than truth) is accepted by the general public without question and with complete submission to their authority. As much as we rant and rave against the president, senators, and individual activists, the SCOTUS is the worst of the lot, because they’re supposed to be the final, impenetrable bulwark between those tyrannical individuals and the Constitution. They have failed and are just as corrupt as anyone else, and people as a whole still naively believe the SCOTUS is on the side of truth (assuming they even know what the Supreme Court is).

    Plus, isn’t it funny how leftist SC “justices” constantly go on and on about how the Constitution shouldn’t be held to the standards of when it was written, different times, etc etc…10 bucks says they don’t trot that out now that a “justice” is trying to use the argument that we SHOULD harken back to the old days in order to enact oppression.

    • “because they’re supposed to be the final, impenetrable bulwark between those tyrannical individuals and the Constitution.”

      Hmmmm…. I thought it was the PEOPLE that held that responsibility and POWER. We don’t need the SCOTUS to uphold the Constitution. We simply have the Constitution. It need not be justified or upheld.

      “This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember or overthrow it.” – Abraham Lincoln

    • #1

      The SC, walking around in their high-priestly robes, is the greatest threat to liberty. The sheeple accept what they rule as the final definitive Word. Their selfish political egos are far more important in their estimate in making decisions than basing cases on truth, facts, justice, and legal documents.

    • “They have failed and are just as corrupt as anyone else, and people as a whole still naively believe the SCOTUS is on the side of truth (assuming they even know what the Supreme Court is).”

      Count me among the naive, then. Scalia, being a conservative, is likely a friend of the second amendment. The fact that he uses his chosen method of judicial interpretation (i.e., originalism) to come to a conclusion that may be contrary to his personal politics tell me that he is exactly the opposite of your caricature.

    • None of this should come as a big surprise. The Court has been compromised.

      Prior her appointment to the Supreme Court, Elana Kagan served as Solicitor General of the United States, in that capacity she served as the head of an office responsible for formulating the Obama administration’s legal defense of the so-called “Patient Protection and Affordable Care Act” commonly known as ObamaCare.

      When asked to recuse herself in light of fact that Section 455(b)(3) of Title 28 of the U.S. Code, states that Supreme Court Justices must disqualify themselves in cases where they have “served in governmental employment and in such capacity participated as counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.” In United States v. Gipson, the Tenth Circuit held that judges must recuse themselves if they have “previously taken a part, albeit small, in the investigation, preparation, or prosecution of a case.” Other courts have suggested that, merely by virtue of a lawyer’s position as the head of an office during the preparation of a case, he or she is disqualified to sit as a judge on that case. For example, several U.S. Circuit Courts of Appeal have held that U.S. attorneys who later become judges must recuse themselves from any proceeding that had been pending in any way in their offices, even if they were not substantively involved, Elana Kagan acted like US Senator Jeff Sessions had no idea what he was talking about.

      Recusal due to previous participation in a case is not an admission of wrongdoing, but rather an expected consequence when a government lawyer accedes to the bench. Indeed, Justice Thurgood Marshall — the last solicitor general to become a justice, and the justice for whom Kagan clerked — recused himself from 98 of the 171 cases decided by the Court in his first year, and most of them were cases in which the federal government was a party.

      Must disturbing is those who should have held her accountable (the US Senate) were complete ineffective in doing so. The media was too busy trying to derail Rick Santorum’s primary race and showing pictures of Whitney Huston’s dead body.

      It does not seem that we can count on the Supreme Court, the Senate, the House of Representatives or anyone in the Executive to display any respect for the law with regard to limitations on the powers or procedural processes.

      molṑn labé

  4. the battle goes on. this is the part that’s not new. freedom has to be defended every day. it’s such a rare commodity in the world people fight for it like they do oil and water.

  5. Right on cue. So now knucklehead will have the SCOTUS do his heavy lifting for him.

    • There’s certainly and arguably a difference between CARRYING IN A MENACING MANNER vs. arbitrarily characterizing a weapon itself as “menacing” or “frightening.” It is anthropomorphizing the weapon as to advance the agenda of banning it or justifying its regulation…. since the gun-grabbers refuse to recognize an inability to regulate bad guys’ behaviors.

      Just as we say “assault” is a behavior (not a weapon), so it is true for “menacing” or “frightening.” Those are behaviors by living animals (including humans).

  7. The SCOTUS has been referred to the CIty Council of the US in the past. Their lifetime appointment coupled with the finality of their decisions means we only need Congress for spending money we don’t have and a President for fooling us into thinking we have some say in really big decisions when we vote for one.
    Not only does the SCOTUS decree what 5 people agree on they go back on their own decrees from time to time, further complicating the situation.
    But like a famous saying, it’s the worst solution except for all the others. I think we need more of a vetting process for a Judge, at a minimum they should come from the ranks of the district courts. Even that would not guarantee wisdom or impartiality.

    • Maybe I’m being too simple, but why can’t we just vote for SC justices like we do anyone else? Why not have a term limit?

      The way it is now, SC justices sound a hell of a lot like royalty.

      • As I understand it, the original intent of not voting in judges and giving them lifetime appointments was to prevent their values and judgments from being skewed or pressured by outside groups and influence. You know, like congressmen.

        • Fair point. So we either get a malleable scumbag or an entrenched political activist. Lovely.

      • Be careful what you wish for. Voting got us Hitler, 2 Bushes and Obama, oh and Jimma Carter.

    • The Constitution allows for non-legal types to become a SCOTUS Judge, an every-day Joe can be a SC judge by what The Constitution allows. Will that happen ever again though? No, the political machine makes it hard for anyone who doesn’t share the views of the vetting committee to become one, much less someone who hasn’t been involved in some way for a high level of politicking.

  8. This feckless buffoon doesn’t get it, we don’t need any more gun control, what we really need is politician and judge control.

  9. He did say the decisions on limitations still need to be made. He wasn’t specific. It seems he doesn’t believe the 2A is absolute. Not new information there. His example of a “frightening” weapon was an axe. He also referred to “bearing arms” as in hand carried firearms as opposed to “cannons.” Then he mentioned hand held rocket launchers to shoot down planes. He made no speculations of where the line would be drawn. I’m not sure how that really applies but maybe I’m just not that smart.

    IMHO the key to future arguments will be whether the 2A was written for the people to protect themselves from gov’t tyranny. Which it was. Then the argument will need to be made that citizens must have access to weapons and accessories on par with military and police forces. But make no mistakes a line will be drawn.

    That was my take on the interview. Hopefully one of the many lawyers that read this blog saw the actual interview and will share their interpretation.

    • The constitution wasn’t written all that long ago really, and its pretty clear what the founding fathers intentions were with the 2nd amendment. I only wish the intentions of it were as important as the wording of it in the eyes of vultures…oops, I mean lawyers and judges. No offense RF.

  10. Heller and McDonald allow for some regulation of guns, but they don’t require it. And we’re never going to get a perfect court or a perfect legislature or a perfect president or governor. This is why we have to push all three branches and all politicians, whether on the right or on the left, to support gun rights. They don’t have to believe; they just have to know that their jobs depend on it.

  11. This feckless buffoon doesn’t get it, what we desperatly need is politician/judge control not more gun control.

  12. Sadly the SCOTUS has degenerated into a group of Mullah-Rabbis issuing fatwas. Just look at the decrepit bodies and black robes. Without constitutional spirit you’re stuck with meaningless legalism enforced by chair-borne drone pilots. Oh and decades of advanced soft-control like mass media, cheap greasy food, and other fruits of post-modernity.

  13. Here’s an alternate take on his comments: he could just as easily be talking about existing regulations on firearms instead of anything new. This actually makes more sense, at least to me, given the context. Firearms are already heavily regulated, as I’m sure most people realize. He may just be pointing out that regulations on fully-automatic weapons, grenade launchers, etc., are probably constitutional. Simply saying that some regulations on firearms may not be prevented by the Second Amendment isn’t really a reason to panic.

  14. Total nonstory. He said as much in HELLER. if this wasn’t the case the 1986 full Mauro ban would be unconstitutional, which the court showed no taste for holding.

    • I think you might be correct though I can’t recall the details of what he said back then. I recall the SC (or was it Scalia?) stating something about long guns and handguns can’t be banned outright by governments yet they can use “some common sense regulation” whatever that means. Of course to NYC, Chicago, and Washington DC it means they can ban handguns and regulate others.

  15. Total nonstory. He said as much in HELLER. if this wasn’t the case the 1986 full auto ban would be unconstitutional, which the court showed no taste for holding.

  16. Total nonstory. He said as much in HELLER. if this wasn’t the case the 1986 full auto ban would be unconst’l, which the court showed no appetite for holding.

  17. So, I’ve read the whole transcript, which you can find here (the transcript is 9 pages long; the Scalia part ends on page 5), and I think this is largely a non-story. Every point of “Oh my God, he said that?!” is a rewording or interpretation by the author of the National Journal article.

    First: “menacing” The word “menacing” is not spoken by either Justice Scalia or Chris Wallace anywhere in the interview.
    Second: “legislatures” The word “legislatures” is not spoken by Justice Scalia or Chris Wallace anywhere in the interview. “Legislature,” singular, is used several times.
    Third: “frightening” The word “frightening” is not spoken by Justice Scalia or Chris Wallace anywhere in the interview. He referred to “affrighting,” thusly: (Speaking historically) “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.”
    Fourth: “locational limitations” This is the closest they come to accurately reporting what he said, and even then they added words to it. In the actual interview, it was a sentence fragment, because Justice Scalia was interrupted by Chris Wallace. Excerpt:

    Scalia: 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 —
    Wallace: But what about these technological limitations? Obviously, we’re…

    All in all, he seemed (to me) to be very careful in what he said, and not passing judgments on anything. He basically kept saying “it has yet to be decided.”

    Much ado about nothing.

  18. Just don’t look at the bodyguards he can afford or it might lead to claims of class warfare.

    • What makes you think he has any? Stevens doesn’t; hell, he had to be robbed in his own vacation home before he even upgraded his security system. I think Rehnquist had a guard/driver, but that had alot more to do with his ill health than with a perceived threat.

  20. This has been blown way out of proportion and (once again) distorted by the MSM, The Supreme Court has already ruled twice that guns can be regulated. Hell, even speech can be regulated (yes it can). The issue is not whether regulation is permitted, it’s the degree of scrutiny to which such regulations will be subjected.

    For those who are so naive as to believe that the Second Amendment is an absolute, please wake up. First of all, the Constitution grants no rights. Second of all, none of the rights protected by the Bill of Rights are absolute. Hell, the government can kill you — provided that it affords you due process of law pursuant to the Fourth (and Fourteenth) Amendments. If your Constitutional right to breathe can be taken away, what makes you think that your “right” to carry a full-auto AR-15 into a courtroom cannot be restricted too?

    • Well, that’s about enough of you and your facts, knowledge, and reasoning. Can’t you see there’s hissy fit being thrown?

    • ralph, you are absolutely correct. The US government, being a government, has the power to do whatever it wants ultimately. lawsuits and supreme court unconstitutionality be damned.

  21. One item that was banned and still is almost everywhere is the Bowie Knife, swords did better they were o k for dress and style… so why is the Bowie knife the most banned weapon in America??? I like the Bowie and as a Marine carried the K-Bar , a smaller Bowie… It’s a good field knife , again it’s banned to carry hunting, camping, in many area……..

    • … because it is ‘scary’ and ‘frightful’ with a little ‘disturbing’ thrown in. Nothing logical/factual, of course.

      Nous Defions

    • By coincidence, I read about this recently. I think it’s a hold-over from the decade after the Bowie was introduced in the 1800s. It seems that the Bowie’s creation was soon followed by lots of knife fights and assaults. The result was that many states banned it.

      If you like the Bowie, check out the Ka-Bar Becker BK7. It’s the Marine Ka-Bar fighting knife on steroids. The BK7 has a full tang unlike the rat tail tang of the regular Ka-Bar.

  22. The good thing is that this 76 year old fool will be out in the near future, and hopefully we get a good ole gun loving justice to replace him.

    • what’s the chances of getting a gun loving justice if barry gets re-elected? with schumer, lautenberg, the clintons, pelosi etc. helping him pick.

      • Scalia IS a gun loving justice. He wrote the majority opinion in Heller. And he took Justice Kagan shooting. With real shotguns. And live ammo.

  23. Through out our history, guns have been an issue, at all levels of society. This will not change. The fight to protect this one right is of the upmost importance and will always require those willing and capable to stand the ground, in action. Our freedom and life-safety are hinged on this single ‘protection’.

    Shame on Justice Scalia.! And, the ‘right/conservative’ nor the ‘left/liberal’ nor any other ‘political party'(so called as all have switched ‘actions’ through USA history), for they all CANNOT be relied upon or trusted in this on-going fight.

    Nous Defions

  24. “Legal precedents” is also know as “total BS.” It is a lawyer’s way to build on to wrongful decisions in future cases.

    Just because a case is ruled unjustly shouldn’t allow you to continue to get it wrong.

  26. If i am correct Scalia recognizes the SCOTUS has not applied 2A directly to the states superseding any local state jurisdiction. Until that day comes under the tenth amendment states have wiggle room as their own sovereignty. Even though like California the state constitution clearly points out that the US constitution is the highest law in all the land, they of course find methods to circumvent it.
    Even though the NationalJournal is more right wing, every reporter finds exactly what they want to find. In this case the fact that Scalia even entertains any legislation or infringement of 2A that is a red flag all sirens going red alert. While I am neither here nor there regarding POTUS, their lack of term limits or how they are appointed, I believe Scalias comments are warranted.
    Gun control could be stating constitutional carry could it not? It might also mean changing certain methods used now to stream line the purchasing or CCW process, like national reciprocity. That is gun control although not how we think of gun control.
    There will probably always be limits on where we can or can not carry, like airplanes, court houses etc. Someone walking down main street waving an RPG around probably isn’t the best idea either. Yes I know that sounds far fetched, and yes we need citation of such comments, even if they were made a 100 years ago.
    The devil is in the details, I think it would be prudent to review Scalia’s record on 2A related cases. This will give you the best insight as to how he will face future challenges to 2A.
    Also I firmly believe in term limits on SCOTUS, and government in general.

  27. Here’s a message from my cold dead hands: Please read the ENTIRE second amendment, not just the part you like. If you do, and you are capable of even minimal critical thinking, you will realize why the supposed “right” to have and bear arms has not existed in America ever since we stopped defending ourselves with militias.

    • Yes it has. Your babblings about the Second Amendment and ignorance of Substantive Due Process aside, the common law right to armed self defense predates the American Revolution by several centuries. It’s also explicitly protected by many state constitutions. In fact, it’s such a fundamental right that one might even say it a privilege or immunity of American citizenship.

    • good to see you made a recovery and are doing better mr. heston. where to start. all the rights in the constitution are individual rights. if a law violates the right of one person it would be illegal under the constitution. that’s why we don’t have slavery anymore and women can vote. can they punish you for yelling fire in a theater, yes they can. but my rights under the 2a have so many bogus restrictions on them that i feel as if the whole lot should be thrown out with just a couplke of exceptions, such as age limits and criminal background checks. and are you sure you’re mr. heston and not mikeybnumbers or hmmmm. sounds like the kind of bogud troll they partake in.

  28. Scalia wrote a 157 page brief on Heller that covered the history of firearms ownership in America right up to today’s issues. I would not characterize him as anti gun at all. I think what he meant is we have to expect regulations and challenges to the RKBA in the future and it’s up to future courts to sort it out. Kinda Obvious.

    • Actually, his argument is that the Founding Father had limitations on gun ownership so it’s OK now. I’m no historical scholar, but I wasn’t aware of any caveats re: the constitutional protection of “the right to keep and bear arms.” Other than the militia clause which has been thoroughly discredited by the Supreme Court on numerous occasions.

      • Scalia mentions some of the limitations. They won’t be found in the Constitution, they are found in contemporaneous historical documents–other writings from the time that Scalia uses to determine what the words in the Constitution meant at the time.

        It seems like many posters here want Scalia to always rule their way, originalism be damned.

        Consider: Scalia’s actual comment (that the Consitution obviously allows some laws about guns) is based on his form of constitutional interpretation–originalism.

        The main competing alternative to originalism is the “living constitution” that allows judges to essentially read whatever they want into or out of the Constitution, based on their opinion of whether society has come to accept, or no longer accepts, what was originally written.

        It sounds like Scalia’s critics here would prefer that he reach a political conclusion rather than one based on rigorous originalism.

        But that is exactly how the “living constitution” folks do it. And they’d be happy, and also philosophically consistent, to rule that the second amendment no longer applies at all. They tried in Heller. Shoot your allies in the back at your own risk.

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