Even Justice Scalia Thought There Was No Need For An AR-15 Assault Type Weapon


Today you will hear local state and national politicians talk about how sad they are about the senseless killing of 17 students and teachers that took place yesterday afternoon in the town of Parkland, Florida. The gun used in the massacre was the AR-15 with high capacity magazines.

So why aren’t lawmakers banning the sale of the selling of the AR-15 the weapon of choice of most of the mass murders in this country? Why do gun owners need an assault rifle?

I asked my family and friends who are hunters and lifelong gun owners. All of them support some gun laws including stronger background checks, the banning of selling the AR-15, the selling of bump stocks and high capacity magazines.

For the record, the police chiefs of the 50 largest cities in the United States are on record that they support stronger background checks and the banning of the sale of AR-15 type assault rifles.

Most polls show that as high as eight-in-10 Americans have told the pollsters they favor bans on assault weapons, high-capacity ammunition magazines and “bump stocks,” an accessory used by the Las Vegas shooter that allows a semi-automatic rifle to fire like an automatic weapon.

Eight-in-10 likewise said they favor a federal database to track all gun sales. On each of these questions, majorities of Democrats, independents and Republicans all were in favor of the restrictions to some degree.

But the share who were in favor, as well as the intensity of their agreement, varied by party — sometimes widely. For example, 91 percent of Democrats, along with 76 percent of independents and 70 percent of Republicans, said they are for banning assault-style weapons.

The late Supreme Court Justice Antonin Scalia, an ardent supporter of gun rights and the Second Amendment. Scalia penned the most important opinion to the future of the law in 2008 when the High Court ruled 5-4 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.

Here is Justice Scalia’s majority opinion on Heller:

“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.’”

But here is the very important note that is a key point that 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.”

The prefatory clause to which the justice refers, of course, is the one about “a well-regulated militia.” The AR-15, used in most the mass shootings in this country since 2005, is an M-16 knockoff.

So rather than saying “assault weapons,” in the future perhaps we should say “the kinds of weapons that Justice Antonin Scalia has defined as ‘dangerous and unusual’ and subject to regulation or an outright ban under the Second Amendment.”

Will any law or set of laws save people from being killed? I simply don’t know but I know that not enacting some common sense gun laws certainly could save lives and that makes enacting those laws worthwhile.

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Jim Williams is the Washington Bureau Chief, Digital Director as well as the Director of Special Projects for Genesis Communications. He is starting his third year as part of the team. This is Williams 40th year in the media business, and in that time he has served in a number of capacities. He is a seven time Emmy Award winning television producer, director, writer and executive. He has developed four regional sports networks, directed over 2,000 live sporting events including basketball, football, baseball hockey, soccer and even polo to name a few sports. Major events include three Olympic Games, two World Cups, two World Series, six NBA Playoffs, four Stanley Cup Playoffs, four NCAA Men’s National Basketball Championship Tournaments (March Madness), two Super Bowl and over a dozen college bowl games. On the entertainment side Williams was involved with Berman Concerts and directed over 500 concerts for Showtime, Pay Per View and MTV Networks.