Quote of the day—Justice Antonin Scalia

A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all . . . Like the First, [the Second Amendment] is the very product of an interest-balancing by the people…

Justice Antonin Scalia
June 26, 2008
District of Columbia, et al., petitioners v. Dick Anthony Heller
[Got that? After balancing the risks and benefits the highest law of the land which may only be overturned by a constitutional amendment (if then because this is in the Bill of Rights) says, “The right of the people to keep and bear arms shall not be infringed.”

Keep that in mind when someone demands “reasonable” or “common sense” regulation of firearms.”

H/T Alan Gura in his brief.—Joe]

11 thoughts on “Quote of the day—Justice Antonin Scalia

  1. The concept of “reasonable or common-sense gun laws reminds me of the concept of a “social drinker.” Some people who call themselves a “social drinker” never take a drink except on social occasions, while others never go through a day without quite a few “social drinks”.
    Some people who say they favor “reasonable gun laws” are limited in what they consider reasonable and what is not, while others sign on for every “reasonable gun law” that comes down the pike.

  2. But didn’t Scalia just say within the last few weeks that there’s nothing in the Constitution to PREVENT Local Government from imposing Gun Control Laws?

    Of course, it wouldn’t be the first time a Supreme “Voted FOR something before He Voted AGAINST it.”

  3. The extension of the right of individual self defense in constitutional jurisprudence is a significant event. Before the erosion of this right through the guise of gun control, there was no question that self defense was allowed under imminent threat, and could not be legislated into oblivion. Now the Supreme Court has reaffirmed that self defense is an inalienable individual right, and linked it to an enumerated constitutional right.

    There is likely no stronger legal argument possible in this country than what the Supreme Court has done with gun rights in Heller and McDonald.

    The only question remaining is, will that be strong enough to prevent future legislatures and courts infringing on that right?

  4. @ Windy; The terms “reasonable” and “common-sense” are used as a cheap ruse– attach some nice-sounding words to the most hateful and anti-American assertions. “Progressive” is one of those also, as is “liberal”. Ooh; who doesn’t want to be “Progressive”? Aren’t we special. The Soviets did the same thing with their Radio Moscow broadcasts in English. They’d have a perfectly American-sounding good ole boy/favorite uncle character telling us all about common sense and reason, promoting communism and trashing the U.S., blaming practially every problem in the world on us, especially the ones they and their allies created. The Cubans continue with the same garbage today. It’s just “common sense”.

    @ mikee; “…will that be strong enough to prevent future legislatures and courts infringing on that right?
    Nothing ever is that strong by itself. The conflict is never-ending. It’s as old as evil itself. The price of freedom is eternal vigilance. History proves it. Evil doesn’t just give up and slink away– it finds a new angle, charges ahead and damn the torpedoes.

  5. overturned by a constitutional amendment (if then because this is in the Bill of Rights)

    That is the second time in about a week I’ve seen the suggestion that provisions of the BoR cannot be repealed through amendment. Can someone explain the rationale behind that claim?

  6. “Can someone explain the rationale behind that claim?”

    Not me but I’m willing to assert this: there does not exist a rational “rationale” for such a claim.

  7. John – I think it’s sort of a philosophical thing. When our founding fathers were looking at the failure of the Articles of Confederation (which were, interestingly enough, failing for much the same reasons then as the EU is now), some people wouldn’t sign the constitution without a firm promise that a later bill explicitly enumerating the rights retained by the people. So, it’s sort of and exchange between the people and the governments: one agrees to allow a strong central government *in exchange for* an explicit guarantee of God-given rights retained by the states and people. To break that promise would be to renege on the agreement, and render the FedGov illegitimate, and effectivly put us back at square one WRT re-negotiating the power-sharing agreement.

    In other words, there may be nothing *technically* wrong with amending them, but on a practical level, it signals all sorts of evil things.

  8. Rolf:

    I seem to recall that any direct modification of the BoR/constitution automatically ends the participation of some of the original colonies in the USA. Written into their state charters in some fashion. Fuzzy memory on the subject, unfortunately.

  9. Will — Nope. no more than the 13th Amendment automatically ended the participation of Delaware, Kentucky, or New Jersey (all “slave states” that did NOT seceed, and all of which REJECTED the 13th amendment — Delaware didn’t even ratify it until 1901, and Kentucky until 1976!) ANY change to the original Constitution would have changed the rules for the participation of the original states (or any amendment passed after a particular state entered the Union) in that case.

    What the states that held out for a Bill of Rights held out for was a promise that a Bill of Rights would be included, later. TWO YEARS after they signed, 12 amendments were proposed. Ten were ratified quickly, an eleventh was not ratified until 1992 (27th Amendment). So long as ANY Bill of Rights (not even necessarily any of the ones proposed in 1789) is properly ratified, even the Gentlemen’s Agreement that they held out for in 1787 is maintained — teh Bill of Rights they held out for was not any specific provision, but an idea of a list of specific freedoms. The “Massachusettes COmpromise” was “Vote for the unamended Constitution as it sits NOW, and we agree to DEBATE your proposed amendments later.”

    While the BoR has special emotional and historical value, it is no different than any other portion of the Constitution, and can be amended as the several states see fit.

  10. I do suspect that given teh EMOTIONAL weight of teh BoR, and serious attempt to eliminate ANY of it that even looked like it might succeed would get very noisy, very fast — starting with massive public protests and wholescale attempts to remove any legislator who looked likely to vote to ratify such a change, to outright widespread violence if the political process failed.

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