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.
July 29th, 2012 | 7:30 pm
Pete, Good post. Thanks for putting a media attempt to generate hysteria regarding Scalia’s words in the perspective of what has already been written by Scalia himself. As usual, you speak reasonably about the truth of the matter at hand.
Also, you gave a fine title to the post! Film at 11 indeed.
July 29th, 2012 | 9:11 pm
felons and the mentally ill
Ok, you repeated the terms, now read them carefully. Define each. “Felons and the Jews” is corollary, as it “felons and the Blacks.” The first term, felons, is definable, you can find it in a dictionary or a law book The second is innuendo.
Consult your own lawyers, ask them for a definition. They will not find one. Or consult those lawyers copied above, Greenhouse and Saks are law professors.
Harold A. Maio, retired mental health editor
July 30th, 2012 | 10:12 am
I don’t believe that Judges would be the best ones to try and define mental illness, however as the law is now, merely being mentally ill doesn’t debar one from owning firearms (at least on the federal level) – one either has to be judicially determined to be a threat, or incapable of managing their own affairs, or have been forcibly commited. I know there’s lots of room for abuse, but there has to be some clear line to (try to)prevent those who would be a danger to others from obtaining arms. Mind you I’m about as pro-gun as you get, being a NRA Benefactor member, etc.
http://www.atf.gov/forms/download/atf-f-4473-1.pdf
July 30th, 2012 | 10:17 am
Harold, the above lawyers are the same lawyer.
As a former mental health worker, I can tell you that the severe behavioral problems of the population I dealt with was the result of traumatic brain injury and not innuendo. You don’t have to be crazy to think that denying them the right to possess a gun while involuntary institutionalized equals Jim Crow or denying basic constitutional rights to religious minorities. You might be a fool instead.
That is not to say that the process is not liable to abuse though many state have laws that limit voting rights for some classes of the mentally ill. As Scalia suggests, there would be a point where denying gun rights due to “mental illness” would cross over into a disguised attempt to ban firearms (Did you complain about stress to someone twenty years ago? no guns for you!) and it would partly be the job of judges to sort it out.
July 30th, 2012 | 10:31 am
Isn’t that loosening of the definition of mental illness an aspect of the violence that we have in America today? Wasn’t it under Carter that the mentally ill were set free into what he called community based care? That essentially meant no care for the mentally disturbed, but what he accepted as care. You cannot simply commit anybody and that was also part of the boom in homelessness that many cities still cope with. No one wants to define mental illness, not even psychiatrists and psychologists, as that calls for judgement. No one wants to be judgmental, except we might still leave judgement to judges.
July 30th, 2012 | 3:44 pm
I’m not sure what kinds of guns can be “born”; it probably depends on their military-industrial parents. As for those that can be “borne,” there doubtless are some interesting legal questions.
July 30th, 2012 | 6:49 pm
Joseph, good catch, but since it is in the transcript (likely an error) I’m leaving it in.
July 31st, 2012 | 9:26 am
Joseph,
The types of weapons that could be “born” seems like the more interesting question.
The two words aren’t that distinct, and the limitations on the language(what is really doing the work) seems to come more from the first sentence than the second.
“My starting point and ending point probably will be what limitations are within the understood limitations that the society had at the time.”
Society at the time, did not fully comprehend “American Exceptionalism”, that is it did not fully comprehend “replaceable parts”, which was in many ways the death of skilled craftsmanship, and the fully democratic triumph of engineering + the tool and die world.
In order for a weapon to be “borne” it first has to be “born”. A suitcase nuclear weapon can be “borne”(within the general understanding of human strength, in common between the founding and today), but such a weapon could not have been and was not “born” at the time of the founding.
See Miller. See also Scalia in Heller: “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.”
So I actually prefer “born” here to “borne”, but I suppose this depends upon whether or not you think the interesting legal questions involve human strength and the capacity to carry a weapon “borne”, or if you believe that all the work is in “born”…if it is “born” then one could think of the interesting legal questions being in Patent.
As extrinsic evidence consider that Scalia turned down an opportunity to address mundane legal questions dealing with “borne” (7th Circuit), instead opting to focus more upon questions of patent and “born” (D.C. Circuit).
August 26th, 2012 | 10:55 pm
As a former mental health worker, I can tell you that the severe behavioral problems of the population I dealt with was the result of traumatic brain injury and not innuendo.
Pete Spiliakos: Please note how specific you were. “the” mentally ill did not occur in your response.
Harold
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