Scalia and Gun Control

Is it possible to define the kinds of weapons that should not be in civilian hands, and does regulating them violate the Second Amendment?

Here is Justice Antonin Scalia quoted in a NYT editorial a few years ago, writing the majority opinion in District of Columbia v. Heller, in which the Supreme Court reversed a long-held position and ruled that the Second Amendment did give Americans an individual right to own firearms. The court said the District’s ban on handguns in private homes went too far, but that regulation of gun ownership was compatible with the Second Amendment:

“We also recognize another important limitation on the right to keep and carry arms. ‘Miller’ said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ 307 U.S., at 179, 59 S.Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”

Justice Scalia also wrote:

“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. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”

This conflict is emblematic of a basic struggle in modern life: Is the individual citizen capable of self-government and is the government capable of augmenting his efforts? Put another way, Is the government immune to the bad judgment characteristic of its citizens? Is the whole somehow different from its parts?