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July 30, 2012

Notable comments from Justice Scalia on the Second and Eighth Amendments

Justice Scalia is making the rounds as part of a book promotion tour, and on Sunday he appeared on the "Fox News Sunday" program. This Reuters article about the appearance reports on some of his comments about two Amendments that are often of special interest to sentencing fans.  Here are excerpts:

In light of the July 20 massacre in which a gunman killed 12 moviegoers in Colorado, Scalia was asked whether legislatures could ban the sale of semiautomatic weapons.  He said the 2008 [Heller] ruling stated that future cases will determine "what limitations upon the right to bear arms are permissible.  Some undoubtedly are."

Scalia -- a proponent of the idea that the Constitution must be interpreted using the meaning of its text at the time it was written -- cited "a tort called affrighting" that existed when the Second Amendment was drafted in the 18th century making it a misdemeanor to carry "a really horrible weapon just to scare people like a head ax."

"So yes, there are some limitations that can be imposed," he said.  "I mean, obviously, the amendment does not apply to arms that cannot be hand-carried.  It's to 'keep and bear' (arms).  So, it doesn't apply to cannons.  But I suppose there are handheld rocket launchers that can bring down airplanes that will have to be ... decided."

Regarding the death penalty, Scalia said opponents want it struck under the ban on cruel and unusual punishment included in the Eighth Amendment of the Constitution. "But it's absolutely clear that the American people never voted to proscribe the death penalty," he said.  "They adopted a cruel and unusual punishment clause at the time when every state had the death penalty and every state continued to have it.  Nobody thought that the Eighth Amendment prohibited it."

July 30, 2012 at 07:54 AM | Permalink

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Comments

There is a common-law misdemeanor in North Carolina that is similar to "affrighting." It is called "going armed with unusual and dangerous weapons to the terror of the people."

It is not used very often

Posted by: Bryan Gates | Jul 30, 2012 11:44:52 AM

Well what really qualifies as a horrible weapon these days? If the NRA had their way we'd all be toting our Glocks to the salad bar. Does an AR-15 with a 100 round drum magazine count as a horrible weapon? Perhaps with an underslung grenade launcher to boot?

And as far as the Eighth is concerned -- sure, the DP was around at the time that the constitution was adopted.

So was slavery.

Posted by: Guy | Jul 30, 2012 12:38:08 PM

Guy --

Slavery was ended by a Constitutional amendment, so you should feel free to try to end the DP by a Constitutional amendment.

Good luck on that one! Prop 34 isn't going to get even a simple majority in one of the most thoroughly blue states in the country. So I think we have a pretty good idea of how far an anti-DP Constitutional amendment would get.

Posted by: Bill Otis | Jul 30, 2012 2:16:15 PM

Scalia wrote Heller and certain dangerous and unusual guns and various other advisory dicta was cited as assumed acceptable regulations. Does his book explain when courts can write opinions with such open-ended dicta?

"They adopted a cruel and unusual punishment clause at the time when every state had the death penalty and every state continued to have it. Nobody thought that the Eighth Amendment prohibited it."

Some people thought the death penalty was anti-republican & at best was acceptable only in limited cases though the fact "somebody" thought this only is of limited concern, underlining the silliness of such hyperbole.

People generally understood various things now deemed unconstitutional (e.g., miscegnation laws) were constitutional at the time. The Constitution sets up certain provisions with meanings that provide room for development and/or only become fully understood over time. Madison said as much, if originalism is your thing. How this helps with the death penalty is open to debate.

The citation of slavery is pretty easy to respond to as Bill Otis notes so let's try a bit harder there. Still, even there, there was a growing belief that "due process" and so forth didn't allow slavery in various cases (like in territories), something not as strong in 1787.

Posted by: Joe | Jul 30, 2012 7:39:58 PM

Bill --

Point being that standards and views evolve, as are the views on the death penalty. I believe that within my lifetime we'll see the tide turn on it, and will join the ranks of other first-world nations. It is, after all, already turning.

You speak in defense of a dying practice (no pun intended). I'm sure, prior to the passage of the Reconstruction-era amendments, there were those who spoke out on the wrong side of history on those, as well. At least you'll be in good company, sir.

Posted by: Guy | Jul 30, 2012 10:47:45 PM

Let the conversion begin!

Posted by: debo adejobi | Jul 30, 2012 11:10:22 PM

"Scalia -- a proponent of the idea that the Constitution must be interpreted using the meaning of its text at the time it was written -- cited 'a tort called affrighting' that existed when the Second Amendment was drafted in the 18th century making it a misdemeanor to carry 'a really horrible weapon just to scare people like a head ax.'"

Would the weapon have to be really horrible to an 18th century person to be subject to regulation? Would the 18th century person have to know what the weapon is? Could it be deemed horrible to an 18th century person if the 18th century person were educated about what it did? Or would it have to appear horrible to a denizen of the 18th century who possessed only the common knowledge an 18th century person would have? As a practical matter, how would we obtain twelve 18th century people (presumably, men) to make a finding about whether a weapon is really horrible? If someone invents a true "briefcase nuke", would it be subject to regulation, given that it can be carried about without frightening anyone who doesn't know what's in the briefcase? To "bear" includes not only "hold up, sustain", but to "convey". Why should cannons on wheels be regulated when they can be conveyed? If the right to "bear" arms is only the right to carry arms in one's, er, arms, then can the Government prohibit constructive possession of weapons, since after all, constructively possessing a gun is not "bearing" it? Can the government prohibit carrying weapons in an automobile, but not a horse-drawn buggy? How about a steam-driven automobile (the first steam-driven locomotive prototypes date to the late 1700's)?

These are all really interesting questions raised by Justice Scalia's intriguing ideas.

Posted by: C.E. | Jul 30, 2012 11:25:19 PM

to illustrate how irrational criminal sentencing has become in North Carolina, a defendant can be convicted of the misdemeanor or Going Armed to the Terror of the People, and still possess a firearm. Whereas, a person convicted of dumping a refrigerator off the backend of a pickup truck, felonious littering in excess of five hundred pounds, is forever prohibited from possessing a gun.

When is the legislature that in the age of grid sentencing, the felony/misdemeanor dichotomy makes no sense?

bruce

Posted by: bruce cunningham | Jul 31, 2012 6:47:46 AM

The Constitution does NOT need to be interpreted, it needs to be obeyed. I don´t trust the justices any longer. I don´t believe they have the best interest of America in mind. Seems as if they are selling us out just like the politicians are doing.

Posted by: Book38 | Aug 1, 2012 10:03:22 PM

i'm with you book38 i'm still trying to figure out how that bunch of treasonous twits on the USSC managed to translate

No EXPOST laws...to

No EXPOST law EXCEPT civil or in sex crimes!


FUNNY i though NO meant well NOOOOOOO!

Posted by: rodsmith | Aug 1, 2012 11:44:07 PM

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