This morning on Fox News Sunday, Justice Antonin Scalia reiterated just how extremely his Constitutional originalism can be applied. Referring to the recent shooting in Aurora, CO, host Chris Wallace asked the Supreme Court Justice about gun control, and whether the Second Amendment allows for any limitations to gun rights. Scalia admitted there could be, such as “frighting” (carrying a big ax just to scare people), but they would still have to be determined with an 18th-Century perspective in mind. According to his originalism, if a weapon can be hand-held, though, it probably still falls under the right to “bear arms”:
WALLACE: What about… a weapon that can fire a hundred shots in a minute?
SCALIA: We’ll see. Obviously the Amendment does not apply to arms that cannot be hand-carried — it’s to keep and “bear,” so it doesn’t apply to cannons — but I suppose here are hand-held rocket launchers that can bring down airplanes, that will have to be decided.
WALLACE: How do you decide that if you’re a textualist?
SCALIA: Very carefully.
Scalia’s across-the-board defense of weapon-carrying laws is not new, having been at the heart of his majority opinion in District of Columbia v. Heller, which protected an individual’s right to possess firearms. However, his nonchalant suggestion that private citizens could legally carry rocket launchers so long as they’re “hand-held” suggests just how willing he is to protect an armed nation.
Such originalism is a dangerous distortion of 21st-Century reality. There is no conceivable way to apply the Founding Fathers’ understanding of a “well-regulated militia” armed with slow-to-load, hard-to-aim muskets to today’s weapon technology. Arguably, the full extent of alleged gunman James Holmes’ munitions could have easily decimated an entire brigade of musketeers before they’d even loaded their first ball.