The Post-Constitutionalist Left and the Demonization of Justice ScaliaPosted: August 29, 2013
For the sneering consequentialists of the post-constitutional Left, Justice Antonin Scalia is a bogeyman among bogeymen and the Second Amendment is an exasperating relic. It should thus come as no great surprise that Scalia’s considered and thoughtful comments on the future of firearms law, offered in good faith during a speech in Montana last week, were met with brash and injudicious criticism.
As revenge for his responding to the question of whether private citizens could own rocket launchers with the modest answer that this “remains to be determined,” the Daily Kos went so far as to suggest that Scalia, whom the outlet called “Supreme Court Justice Fever Dream,” was a “crackpot” and “not right in the head.” Over at the more moderate Daily Beast, meanwhile, Adam Winkler continued to lie about the nature of the Second Amendment, contending slipperily that the “insurrectionist understanding” is false and advancing without shame the smear that “Justice Scalia, that acclaimed lover of originalism,” is “taking his cues from the Tea Party rather than from the text and history of the Constitution.”
As it happens, Scalia’s view is not crazy at all. Indeed, it is the only supportable one. The Left, whose members are typically not interested enough in the details of firearms law to participate coherently in this debate, has long neglected to examine the historical record, preferring instead to dismiss the notion of the right to bear arms as a check on government as being axiomatically dangerous. This is to its great discredit. Reflexively to reject the notion that, as Thomas Jefferson put it in the Declaration, “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it” is to ignore not only the principles that undergirded the American founding but also the British common law that preceded it, the recorded debates surrounding the drafting and passage of both the federal and state constitutions, and the bulk of the contemporary jurisprudence.
Winkler’s insinuation that the American compact includes no way out for the oppressed would have shocked its authors and contemporaries. In a much-distributed article published in the Philadelphia Federal Gazette and Philadelphia Evening Post in 1791, the Second Amendment was explained to intrigued citizens as protecting the people from “civil rulers” who “may attempt to tyrannize” and from “military forces” that “might pervert their power to the injury of their fellow citizens.” The author was channeling no less a personage than the drafter of the Second Amendment, James Madison. In Federalist 46, Madison laid out the insurrectionist theory himself, observing bluntly that the states should not fear the tyranny of a federal standing army because the superior state militias and well-armed public could defeat that army by force if, heaven forbid, it became necessary for them to do so.
New Hampshire’s constitution of 1784 put this understanding most explicitly of all:
[Art.] 10. Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.
Scalia’s suggestion that rocket launchers may well be legally protected sits on equally solid ground. The two most recent Second Amendment decisions — D.C. v. Heller, which confirmed the obvious truth that the Second Amendment recognizes an individual right that is not contingent upon a militia, and McDonald v. Chicago, which incorporated that right to the states — did not address in much detail the question of which weapons may be legitimately banned, leaving the bulk of that work for another day. Progressives think they are being inordinately clever when they ask advocates of the right to bear arms, “So, can you have a nuclear missile?!” They are being no such thing. Like all informed people, Justice Scalia himself concedes that the right to bear arms is not infinite. For the weapon to be protected by the federal constitution, citizens must to be able to “keep” it and to “bear” it — and also to discriminate with it. This is why a handgun is quite obviously protected while a cruise or nuclear missile is quite obviously not. The Heller decisions also included a poorly defined “common use” provision that has not yet been properly tested.
Nevertheless, a significant gray area remains. Are the current federal restrictions on the sale of machine guns permissible? Can a state limit access to so-called “assault weapons” without violating the incorporated right? Can, per Scalia’s own example, the government prohibit private ownership of rocket launchers? These are serious constitutional questions — questions that, as an inevitable consequence of wading into the debate around an amendment that was left largely untouched for two centuries, the court will ultimately be required to address. This, remember, is a constitutional issue. It is not a political one. Contra the zeitgeist, “constitutional” and “unconstitutional” are not synonyms for “things I like” and “things I don’t like,” but statements of legal fact. If the Constitution does prevent Congress from prohibiting rocket launchers, and if this is deemed by a supermajority to be ridiculous, then the Second Amendment can be changed via the usual channels. Until that time, it remains in force and it must be upheld as it was written.
Scalia is by no means outré when he contends that machine guns or rocket launchers may fall on the protected side. A favorite, albeit cheap, argument of gun-control advocates is that “when the Second Amendment was written, there were only muskets!” Conservatives customarily react to this by pointing out that, while true, the jab relies for its power upon an absurd standard that doesn’t apply to anything else. (The First Amendment, for example, quite obviously applies to the Internet and to speech broadcast over the radio.) But the better way to look at this question is not to compare the personal weapons that the citizenry owned at the time of the Founding with the more powerful personal weapons available to the citizenry now, but to compare what personal weapons the citizenry had access to at the Founding with what personal weapons the military owned at the time of the Founding.
If we grant that the Second Amendment covered muskets — which pretty much everybody does — we are granting that the Second Amendment originally applied to the top-end personal military weapons of the time, and that the authors of the Constitution were happy for free Americans to own the same personal weapons as did the government. Sure, they may be “just muskets” now. But at the time? George Orwell, who recognized the importance of all this, explained in his essay “You and the Atom Bomb” just how powerful citizens with muskets had been — and how that dynamic was changing:
The great age of democracy and of national self-determination was the age of the musket and the rifle. After the invention of the flintlock, and before the invention of the percussion cap, the musket was a fairly efficient weapon, and at the same time so simple that it could be produced almost anywhere. Its combination of qualities made possible the success of the American and French revolutions, and made a popular insurrection a more serious business than it could be in our own day.
If we are supposed to apply the “musket” principle today, as the Left insists we must, we should be expanding, not contracting, the list of personal weapons that the people may own. Instead, because the Second Amendment refers solely to discriminating, bearable weapons that can be borne by a militia, great swaths of the U.S. Army’s arsenal will remain unprotected by the Second Amendment. But machine guns, powerful rifles, and, yes, rocket launchers may well not be in that group. Scalia is right: The next big question is “What are the People allowed?” The Court may decide that the scope is limited, and it may decide that it is not. But it will decide. And no amount of historical illiteracy, obtuse outrage, or scurrilous accusations that its members are “not right in the head” will prevent it from doing so.
–Charles C. W. Cooke via National Review Online
- NRA-ILA: Pride of ignorance on firearms (nyfirearms.com)
- Pride of ignorance on firearms (nraila.org)
- Scalia: Court shouldn’t ‘invent new minorities’ (news.yahoo.com)
- YES Professor. The Founding Fathers Would Have Wanted Us To Have RPG’s & Assault Rifles!!! (thelastgreatstand.com)
- Scalia on upcoming 2A cases (nyfirearms.com)
- Supreme Court Justice Antonin Scalia: Court shouldn’t ‘invent new minorities’ (nydailynews.com)