I'm going to leave analysis of the tortured exegesis of the text of the Second Amendment to others (at least for now), but I feel compelled to comment on the peculiarity of Justice Scalia's analysis of what kinds of weapons are covered by the 2nd Amendment. In essence, he says that handguns and rifles are okay because they were the kinds of weapons that someone might have used in a late 18th-century militia, but that more modern weapons can be prohibited. Here's an example of this kind of reasoning, which appears in several places in the opinion:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.

As I read this, it occurred to me that modern handguns are nothing like the weapons that were commonly available in the 1790s. Pretty much all of the handguns in those days were muzzle loaders, which took a while to shoot, and required a lot of time between shots. The first practical revolver wasn't invented until about 20 years later, and Colt didn't get his patent until 1835. The predecessors of today's semiautomatic guns didn't appear until much later, around the 1870s. Simply put, a handgun in the 1790s was nothing like a handgun today, except that both can be held in your hand and both shoot bullets.

Of course, Scalia doesn't mean that governments can ban weapons that didn't exist in the 1790s. Still, you have to wonder how to reconcile the idea that the more dangerous weapons used by the military today or a sawed-off shotgun can be banned with the idea that a handgun that can shoot 15 rounds in a matter of seconds - a rate that probably exceeds that of a muzzle-loader by a couple of orders of magnitude - cannot.

Good post. Perhaps it means that at any given time, the weapons that the citizenry would likely bring from their homes to militia service cannot be made illegal? Nowadays that would certainly include handguns, rifles, and shotguns; but not fully automatic weapons or other weapons generally considered the domain of the armed services. Something like an evolving standard of decency, but for firearms. I dunno, just a thought.

That's exactly what it means. He's saying that M-16s aren't the modern equivalent of a musket. They may be standard issue in the army, but they aren't the sort of weapons most people expect to keep in their homes for self-defense or protection of the community.

Granted, it is a little strained, but nowhere near as strained as "the people" = "the state governments". And the only alternative would have been to say that laws restricting possession of automatic weapons are also unconstitutional - would any anti-gun folks prefer to see that?

The notion that the Bill of Rights only applies to the technology of the 1790s is, of course, absurd. By that reasoning, the government could censor anything distributed on the Internet.

But this is perfectly illogical and stupid because it is circular. The weapons citizens can bring to a militia are the weapons that they can purchase...which are the weapons the State cannot ban...which are the weapons citizens can bring to a militia...which are the weapons a State cannot ban...hmmmmmm

Yes, but many many many people own handguns. I don't know of any time where the average citizen had a bevy of automatic weapons, but maybe I'm just too young.

So now I understand your argument fully. You are saying States cannot ban guns that a "majority" of people would have or something similar to that like the evolving standards of decency thing. That cuts off the circular logic somewhat, but it is still silly and has no relation to the 2nd Amendment - is the first clause just surplusage?

It's worth noting that in the infamous Kelo case, a lot of people were upset because they said that the framers had not contemplated the idea that the government could take land and set it aside for a specified private use. (This was wrong, by the way, as there are plenty of examples of that sort of thing going back to the 18th century.) It seems to me you could make an equally good argument that the framers did not anticipate semi-automatic weapons and revolvers. Somebody with a Glock and sufficient ammunition almost certainly would seem like he had a superweapon if he were dropped into the middle of an 18th century battle, after all.

The truth is that I think this is a very weak part of Scalia's opinion. It's the part where he says, essentially, that this decision doesn't affect any of the limitations on arms that it would scare the public to eliminate. That's not particularly strong analysis, since it requires an explanation of why "arms" means something narrower than its standard meaning, an approach that Scalia normally would scorn. (As an aside, I also like the explanation that Miller doesn't matter, in part, because it wasn't really a seriously contested case. The offhanded disparagement of the entire Miller court for, essentially, not thinking hard enough, is pretty nasty.)

randy-khan:

It's worth noting that in the infamous Kelo case, a lot of people were upset because they said that the framers had not contemplated the idea that the government could take land and set it aside for a specified private use. (This was wrong, by the way, as there are plenty of examples of that sort of thing going back to the 18th century.) It seems to me you could make an equally good argument that the framers did not anticipate semi-automatic weapons and revolvers. Somebody with a Glock and sufficient ammunition almost certainly would seem like he had a superweapon if he were dropped into the middle of an 18th century battle, after all.

What is meant by "the framers had not contemplated" is different in those two instances. The framers were certainly aware of the potential for government to abuse its power in the manner of the Kelo case - one presumes at least some of them had read I Kings, Chapter 21. What was meant was that they never thought anyone would construe the law to say such a thing was legal. No one was saying eminent domain was being abused because it was used in a manner not technically possible in the 18th century, they were saying that when the founders discussed eminent domain, there were certain uses they thought were legal, and others that they thought were illegal, and this use is in the former category not the latter even though that specific distinction is not made explicit in the document.

A similar statement might be "the founders never contemplated the right to habeas relief being extended to a horse" - they certain could have imagined that happening, but the right was already well-defined outside the Constitution and such an application had clearly been outside it throughout history, so they didn't need to mention it.

Guns are another matter. The framers were certainly aware that guns could and were used to rob and murder, and that hasn't changed since then. Technology has made it somewhat easier to murder, but it has also made it easier to conspire to run a criminal enterprise or a campaign of terrorism, yet no one claims that has made the 4th Amendment obsolete. And anyone suggesting that freedom of the press protected only manual printing presses of the type available in the 1790s would be laughed at.

randy-khan:

The truth is that I think this is a very weak part of Scalia's opinion. It's the part where he says, essentially, that this decision doesn't affect any of the limitations on arms that it would scare the public to eliminate.

It is, granted, but he's got to do that. The alternatives would be to say that the plain words of the amendment were of no effect, to create an unlimited right unlike anything else found in American jurisprudence, or to simply pull arbitrary limits out of a hat without regard to the source material, which is what Breyer would have the Court do. If we're going to have to set limits somewhere, I think it's best to at least try to find some guidance in the language of the provision being construed.

randy-khan:

That's not particularly strong analysis, since it requires an explanation of why "arms" means something narrower than its standard meaning, an approach that Scalia normally would scorn.

I don't think he's narrrowing the definition of "arms," though. The portion of the opinion in which he defends the exception isn't where he's defining arms, it's where he's discussing inherent limits to the right. I think Scalia would agree that an M-16A2 is an "arm," just as shouting fire in a crowded theater is still "speech" - but both are outside the protection of the right in question.

It's not at all clear to me that barring existing gun control legislation that prohibits people from buying M-16s, they would not be the sort of weapon a person would keep in their home to defend themselves or their community. If, for example, we were to be invaded by a foreign nation and the army could not make it to your neighborhood to protect you, I would guess that a handgun would do very little to protect us. Why is it so impossible to believe that reasonable people would want to keep these in their homes for self-protection (particularly from a tyrannical gov't)? In the 1790s, muskets were the most powerful weapons a person could afford to keep in their homes. Though I am curious if anyone knows how they got, and who owned, the cannons that were used in wars.

er, I guess it would first be the national guard, but you get my point.

Some thoughts in response to responses:

Bruce (or that's what they call you) - (1) Without taking a position on whether the taking in Kelo was an abuse, it is true that there were government takings for private use at the time of the 5th Amendment, most notably for turnpikes and canals, which were privately owned.

(2) I'm not sure I'd characterize what Scalia did with the machine gun, etc., restrictions as less than arbitrary as a legal matter. If, as he says elsewhere, the purpose of the right to bear arms is to make sure that the militia can resist the government, well, then, the logical conclusion is that the militia needs to have weapons sufficient to resist, and handguns and rifles won't be sufficient for that purpose. He doesn't explain how to square that conclusion with preventing people from owning M16s.

(3) It's a minor detail, but I'd point out that the line about shouting fire in a crowded theater actually refers to "falsely shouting fire in a crowded theater and causing a panic." The point of that line (and in libel law) is that intentional falsehoods cause harm, and that free speech rights don't immunize you from liability for the wrongful harm that you cause to others.

(4) Going backwards a bit, I agree that you need to find ways to apply the Bill of Rights to the present day. I don't think that necessarily decides this case, though, and it certainly creates some problems for the originalists.

Slatesurfer - That's exactly the issue. If the idea is to give the militia the tools it needs to resist tyranny or invasion, handguns and hunting rifles aren't what you need.

Though I am curious if anyone knows how they got, and who owned, the cannons that were used in wars.

I think most of the cannon used in the Revolutionary War were captured from the British, but some were privately owned. In those days, it was not unusual for merchant ships to be armed.

After independence, some were privately owned, some were owned by the states, and some were owned by the federal government. There was no standing army, but there were standing armories. I don't know who had the most.