Second Amendment - Not Settled Law

By Madeleine Morgenstern


Conservative Supreme Court Justice Antonin Scalia on Sunday left open the possibility that some types of guns could be regulated by the government, such as assault weapons capable of holding 100 rounds of ammunition.
“What the opinion in Heller said is that it will have to be decided in future cases, what limitations upon the right to keep and bear arms are permissible,“ Scalia said on ”Fox News Sunday,” referring to the 2008 decision in District of Columbia v. Heller that protected the right to possess firearms.

“Some [limitations] undoubtedly are because there were some that were acknowledged at the time,” he continued. “There was a tort called a ”frighting” which if you carried around a really horrible weapon just to scare people, like a head ax or something, that was I believe a misdemeanor. So yes there are some limitations that can be imposed, what they are will depend on what the society understood were reasonable limitations at the time.”

The 76-year-old justice declined to speculate on what that could mean specifically for certain high-powered weapons.

“We’ll see,” he said. “Obviously the amend does not apply to arms that cannot be carried ­ it’s to “keep and bear,” so it doesn’t apply to cannons, but I suppose there are handheld rocket launchers that can bring down airplanes that will have to ­ it’ll have to be decided.”

As a constitutional originalist, Scalia said those determinations will have to be made “very carefully” looking within the context of 18th-century history.

“My starting point and probably my ending point will probably be what limitations are within the understood limitations that the society had at the time,” he said. “They had some limitations on the nature of arms that could be borne.”