Justice Scalia Goes Gun Crazy

BY Herschel Smith
10 years, 6 months ago

No, that’s not my preferred title, but the one used by Adam Winkler:

America has more than its fair share of extremists who believe people need to stock up on guns to fight against tyrannical government in Washington.Add one more to the list: Supreme Court Justice Antonin Scalia. In a speech in Montana on Monday, the jurist was asked about the Second Amendment and what arms were protected by that provision of the Constitution. That “remains to be determined,” he replied. As one example, he asked if people have a right to “bear shoulder-fired rocket launchers?” Perhaps they do, Scalia suggested. The answer would turn on the historical understanding of the Framers, who Scalia said included the Second Amendment in part to preserve the right of people to revolt against a tyrannical leader.

Adam continues, “The idea that the Second Amendment gives people the right to revolt against government is broadly shared among gun rights extremists” (Adam is referring to people like me – Adam would have been a loyalist during the revolutionary war, I would have charged up King’s Mountain against the loyalist troops) … “The insurrectionist understanding of the Second Amendment fails to account for two other features of the Constitution. First, the Second Amendment itself includes a preamble referring to the necessity of a “well regulated militia.”

Here Adam continues with the well-worn and tired claptrap about well-regulated meaning controlled by the state.  Bob Owens has the must-read defeater argument on this, but since Adam won’t care about this I won’t spend time recapitulating what Bob says.  Adam can continue to wring his hands and worry over things, and we can move on to one salient observation about Scalia.

I have long lamented what I perceive to be the weakness of Heller versus D.C.  But perhaps Scalia really does understand that the Second Amendment has absolutely nothing whatsoever to do with hunting or self defense, and has everything to do with ameliorating tyranny.  And perhaps Scalia knows that the Supreme Court had to bite this off in chunks.  If so, this is a welcome evolution in Scalia’s thinking – at least as it pertains to what he feels free to say out loud.

And oh, by the way, the Hughes amendment was an unconstitutional obscenity.

UPDATE: Kurt Hofmann writes me, observing that: ” … Mr. Constitutional Law Professor is already lost, when he talks about any bill in the Bill of Rights giving rights.  Besides, my position has always been that the Second Amendment does not protect “the right to revolt,” but protects the right to the means of effective revolt.  When revolt becomes necessary, a Constitutionally protected “right to revolt” wouldn’t matter, even if there were one, because by then, the Constitution will no longer be relevant.”  Good points.

Thanks to David and Mike for the attention.

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  1. On August 22, 2013 at 2:02 pm, Paul B said:

    I would have to say I would be the old guy that stopped the company from advancing.

    The tories are still with us and still trying to get our guns.

  2. On August 22, 2013 at 3:15 pm, Bill St. Clair said:

    “Reread that pesky first clause of the Second Amendment. It doesn’t say what ANY of us thought it said. What it says is that infringing the right of the people to keep and bear arms is TREASON. What else do you call an act that endangers ‘the security of a free state’? And if it’s treason, then it’s punishable by death. I suggest due process, speedy trials, and public hangings.” — L. Neil Smith

  3. On August 22, 2013 at 4:00 pm, Mt Top Patriot said:

    What it means is this:

    It is not ours to restore the power of the Constitution. It is ours to show them the wrath of America without the protections the Constitution offers them.

    Let them restore it to find refuge from us.

    – TL Davis

  4. On August 22, 2013 at 4:41 pm, michael said:

    I think Bill St. Clair states it very well.

  5. On August 22, 2013 at 5:10 pm, SWIFT said:

    I’m an older retired fellow who has tried to teach my children and grandchildren about the so-called Rights they have lost. When the time comes to challenge tyranny, the only power I will understand is the gun in my hand and the one on my hip. I will derive no power from the Constitution, as the left-wingers and the silence of the right, will have destroyed it.

  6. On August 22, 2013 at 5:47 pm, Dennis said:

    “At the outset of the Revolution the entire train of artillery was composed of four cannon possessed by the Boston Artillery Company. Two of the cannon were captured by the enemy and these two were owned by several citizens of Boston.”

    This inscription was engraved upon the two cannon returned to the several citizens of Boston, by order of henrty Knox First Secretary of War by direction of the Congress of the United State 1788, they were named the Adams and the Hancock. Three pound cannon fird a solid ball weighing three pounds, chain and ball or canister shot-a canvass bag containing hundreds of musket or iron balls. Explosive round were not deployed by cannon yet. They were used in mortars.

    The Continental Navy was composed of 64 ships with some 1200 cannon and swivel guns-small cannon type guns mounted on ship rails and tripods. The Privateers-armed civillian owned ships-numbered more than 2000 with over 14,000 cannon and swivel guns. source; US Maritime Museum. So it looks like the civilllian ownership of artillery was equal to that of the government-on land-and close to 14 times what the government possesed on ships.

    Now when the courts were talking about what the militia were expected to carry we are talking about infantry. We know that this was the least they were expected to own/possess and to report with. If they did not they were fined. There is no comment on what they were limited to. Obviously, with the knowledge in historical texts, it was a hell of alot more than the government and it included artillery and naval guns. So can we have an end of the BS session with all the government types, their shills and useful idiots????

    “The People..are the rightful masters of the courts and the legislature. Not to overthrow the Constitution but those men who pervert it.”

    Abraham Lincoln

  7. On August 22, 2013 at 6:31 pm, luagha said:

    ‘Well-regulated’ is the opposite of ‘irregular’ in terms of irregular militia or irregular army.

    Like Sherlock Holmes’s ‘Baker Street Irregulars’ or the ‘Civilian Irregular Defense Groups’ during the Vietnam war or Theodore Roosevelt’s First Irregular Cavalry making the charge up San Juan Hill.

  8. On August 22, 2013 at 8:36 pm, Dubs said:

    The Hughes amendment needs a challenge. We can argue and probably agree, that Nukes, Biological or chemical weapons should be out of reach as “normal” weapons. Cannon and machine guns should be available. We have already compromised with extra paperwork for them. The Hughes amendment only drives up prices and leads to the end of private ownership. As they break, are lost, worn out, burned in house fires, there are no more. It is a slow, long term confiscation. That is the point.

    With regards to “well regulated”, that means practiced. At the least, this means we should all target shoot often. That is the fundamental skill. Let’s have the government pay for our ammo! We could also practice small unit actions to improve coordination.

    In any case, the operative clause says the people shall not be infringed. The prefatory clause merely explains the rationale or reason for it. We have compromised in 1934, 1968, and 1986. NO MORE.

    Repeal the Hughes amendment. It is time for the pendulum to swing back.

  9. On August 22, 2013 at 8:45 pm, Dubs said:

    Perhaps the “line” of what is “ok for private ownership” should be drawn based on the police or sheriffs weapons. We face the same criminals and terrorists. If they can have it, so can we. The people may find “it” just as useful and needed. Or, the police can do without “it”. No MG’s, RPG’s, armor for us, then none for them. Any so called advances in weaponry, such as RFID chips or “smart” guns need to apply to all. No exemptions for them. Funny how they don’t want that.

  10. On August 23, 2013 at 4:33 pm, dan said:

    the human right to self-defense ,with what ever means available, is not written anywhere that allows man to revoke it….it is in the mind and body of the human where ever that person may be…home ,auto,park,store,church,beach,woods, and yes even Washington DC…no matter what the rulers say…..imho…..Semper Fi

  11. On August 24, 2013 at 2:35 am, Gw said:

    First and foremost, a sincere and heartfelt shoutout to all U.S. Military Veterans:
    “Thank You For Your Service.”

  12. On August 24, 2013 at 3:20 am, Gw said:

    For the benefit available to those who may not be aware:- allow that I humbly submit the following as expressed by those who Founded the most evolved and sophisticated system of government ever devised, fashioned and implemented in the whole of all Human history — embodied as that of the American Constitutional Republic.

    Congress of the United States
    begun and held at the City of New-York, on
    Wednesday the fourth of March, one thousand seven hundred and eighty nine.
    [Excerpt as follows:]
    “THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

    Note that, ‘in order to prevent misconstruction or abuse of its powers’ —
    ( meaning of course, those few and expressly limited powers granted to those within and acting on behalf of the ‘Federal’ government, and only by consent of the people — one particular ‘further declaratory and restrictive clause added’ as follows:

    Amendment II
    “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

    Source: http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

  13. On August 24, 2013 at 10:06 am, Mark Matis said:

    I would take exception to that, Gw, for any veteran who is now working as “Law Enforcement” and is spitting on their very oath of office to the Constitution. That would include EVERY officer in the NYPD, as well as EVERY officer in the CPD, and MANY others across this country. God damn them to hell for their treason.

  14. On August 24, 2013 at 3:42 pm, Mark Matis said:

    And here, Gw:
    is TODAY’s military.

  15. On August 24, 2013 at 6:30 pm, DAN III said:

    re: On August 24, 2013 at 2:35 am, Gw said:

    First and foremost, a sincere and heartfelt shoutout to all U.S. Military Veterans:
    “Thank You For Your Service.”
    Service ? Service for what ? To what ? To whom ?

    I know you mean well Gw but, as a military veteran I would ask you to stop thanking us. Today, and for 19 wars since WW2, members of the US military have followed orders in violation of the United States Constitution. We have killed and maimed and made homeless millions of people the world over in undeclared conflict. We have a usurper in the West Wing who is a criminal and a murderer. A usurper to the Constitution. Yet where are our military leaders ? Where are our flag officers who would and could execute a coup d’etat against this illegitimate government of soetoro-obama ? They are pandering to soetoro-obama and his socialist minions. They are getting ready to enter into ANOTHER war, this one a biblical prophesy of a Middle East cauldron and the end of the world, joining in war against Syria.

    No Gw….don’t thank us. For we haven’t defended the country against enemy attacks and invasions for at least 72 years. Since 1972 we’ve been well-paid with good benefits and retirements. We’ve been remunerated well for our employment with the Defense Department. If we’ve served anyone it has been self. We have been self-serving.

    Don’t thank us veterans. We’ve done nothing but help the ruling elite destroy the Constitution and what was once America, Land of the Free, Home of the Brave. I am ashamed.

  16. On August 24, 2013 at 9:52 pm, Herschel Smith said:

    Gw and Dan,

    This discussion thread has gone far, far afield from where it began, but that’s okay. I don’t mind and I’ll pull this thread a little further.

    There are levels of agreement here and levels of disagreement. We should forthwith remove all troops from S.K. If we did this the ridiculous sunshine diplomacy would forever disappear and hit the bottom of the sea where it belongs. S.K. would learn to defend itself. We have no business defending Japan from China, and the South Pacific isn’t our backyard. We had no business invading Iraq, and I deeply lament OIF I. Oh, and we have no business in Syria or Libya.

    Yet … once we were there, OIF II and OIF III had to be finished because 100 jihadists per month were coming across the Syrian border to fight us. I would like to pull a full-on Ron Paul, but even Ron Paul doesn’t want to pull a full on Ron Paul. His son Rand is just like him. Friends with everyone, they are. Come one, come all. Cross our borders if you wish. We’re here for everybody. And if we’re going to be in Libya, we have no business abandoning our own like the bastards in the administration did at Benghazi

    In many ways, our foreign policy is a function of the fact that we won’t close our borders. If we would lock them down, seal them for good, stop all immigration (or most of it), inspect every tanker and shipping crate that comes into any port in the U.S., and apply the same rules of commerce to everyone (including our competitors overseas) then I would agree to pull every troop from every part of the world they are deployed.

    But because big business wants the illegals we won’t do that. So, for instance, because we won’t seal our borders, let’s pose the question: What if it looks like the Tehrik-i-Taliban are going to take over Pakistan? What do we do about their nuclear weapons? Wait for Charleston, Los Angeles, New Orleans or Norfolk to disappear from the face of the earth? I would be in favor of confiscating the nuclear weapons before savages like the TTP get hold of them. Don’t want to do that? Fine. Then convince our illustrious leaders to close down the shipping lanes, ports and borders. I have friends in Charleston and Norfolk.

    I have long lamented the inconsistency of Ron and Rand Paul. I would be a complete isolationist if and only if we actually implemented complete isolationism. As I’ve said, we won’t do that.

    Holding Marines accountable for the fact that our leaders decided to invade Iraq is like holding the lead engineer for Morton Thiokol responsible for the Challenger explosion because he worked for them, in spite of the fact that he recommended against launch, begged against it, predicted catastrophe, and even lost his job because he demurred before the launch (and because management needed a scapegoat as they always do).

    God holds people accountable according to their station in life. None of this, of course, means that we cannot hold those accountable (such as the German troops who garrisoned the death camps) accountable for their crimes against the Jews, or members of SWAT teams for pointing weapons and hurling profanities against U.S. citizens.

    As I said, there are levels of complexity here, and the issue is far from simple. Dan, you have no reason to be “ashamed,” and neither does my son.

    The solution is before us and has always been. And in spite of the support for libertarians like Ron Paul among my readers, Ron Paul’s solution (open borders for everyone) is not it. Like I said, not even Ron Paul wants to pull a full on Ron Paul.

    I do, and that’s what separates me from at least some libertarians (and I think, makes me internally consistent with Christian libertarianism). My opposition to gun control also marks me as consistent with Christian libertarianism. In that way, I’m similar to Mike Vanderboegh.

  17. On August 25, 2013 at 7:53 am, Mark Matis said:

    Thank you.

  18. On August 25, 2013 at 4:48 pm, Jim Harris said:

    Without getting into each of the myriad details of the arguments above, I’d point out one thing I think is miss stated:

    It is not just “big business” (however defined) that wants cheap labor, cheap goods, or other benefits available through the present international trade/immigration arrangements. There all kinds of small and medium businesses that directly or indirectly benefit from this trade of people and goods; and ultimately, the American consumer him/her-self demands it. Nobody forces anyone to shop at Walmart, for example (or any of the smaller stores that buy/sell with the same international entities); they just do.

    All this morphs into the following two questions: 1) What would be the world-wide, as well as internal, economic effects of closing our borders as described above? 2) Are we as a nation willing to pay that price?

    While different people will respond to these “differently,” I think that generally speaking, the most common answers are intuitive.

  19. On August 25, 2013 at 9:33 pm, Gw said:

    Honorable Men of good Conscience, Moral Character, strong Constitutions and deeply held Convictions.
    Truly humbled to be in such good company.

    As of the date & time of this post, all thoughts, comments and opinions read and hereby acknowledged.

    Sincere appreciation extended to Mr. Herschel Smith for providing one such as myself this format for posting.

    That said, and for any inclined to do so — I for one, would be highly interested in reading further considerations with regard the posted excerpt.

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This article is filed under the category(s) Guns,Second Amendment and was published August 22nd, 2013 by Herschel Smith.

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