CRF Blog

Justice Scalia on the Second Amendment

by Damon Huss

Antonin_Scalia_official_SCOTUS_portrait

Justice Antonin Scalia (Wikimedia Commons).

Supreme Court Justice Antonin Scalia gave a speech this week in Bozeman, Montana on a variety of subjects related to the court’s recent decisions. He also answered a question about the meaning of the Second Amendment.

“What remains to be determined,” Justice Scalia said, “appears to be the scope of the armament that people can keep and bear.” The justice asked rhetorically, “Can they bear shoulder-fired rocket launchers?”

Scalia wrote the majority opinion in the 2008 case of District of Columbia v. Heller, in which the court held that the Second Amendment confers an individual right to bear arms independent of participation in a state militia. That right is limited to traditionally lawful purposes, like self-defense. In the speech in Montana, Scalia appeared to add that the Second Amendment is connected to the right of the people to revolt against a tyrannical government.

According to the Washington Post:

[Scalia] said the court will have to take those cases [about what guns people may keep and bear] as they come, but his approach will be to apply the historical understanding of the Second Amendment, which was not just in self-defense against animals and home intruders, but for the people to protect themselves against a tyrannical leader. [more]

Adam Winkler, a UCLA law professor, has criticized Scalia’s opinion about the right of the people to revolt. He writes at The Daily Beast:

The Constitution was intended to be a charter of government, not a recipe for revolution….. The Framers thought the Constitution itself, with its division of powers, reliance on popular sovereignty, and judicial oversight, would prevent tyranny from ever arising. The Framers had the humility to recognize that this charter of government may prove flawed. Yet the mechanism for changing it was the amendment procedures of Article V, not a revolution through the Second Amendment. [more]

What is your opinion?