Antonin Scalia a Bogeyman?

Charles C. W. Cook writing at National Review discusses: Could private citizens own rocket launchers; New Hampshire’s constitution of 1784; progressives thinking they are inordinately clever; the Heller decision’s poorly defined “common use” provision; current federal restrictions on the sale of machine guns, muskets and the Second Amendment; the authors of the Constitution intent that Americans own the same personal weapons as does the government.

For the sneering consequentialists of the post-constitutional Left, Justice Antonin Scalia is a bogeyman among bogeymen and the Second Amendment is an exasperating relic. It should thus come as no great surprise that Scalia’s considered and thoughtful comments on the future of firearms law, offered in good faith during a speech in Montana last week, were met with brash and injudicious criticism.

As revenge for his responding to the question of whether private citizens could own rocket launchers with the modest answer that this “remains to be determined,” the Daily Kos went so far as to suggest that Scalia, whom the outlet called “Supreme Court Justice Fever Dream,” was a “crackpot” and “not right in the head.” Over at the more moderate Daily Beast, meanwhile, Adam Winkler continued to lie about the nature of the Second Amendment, contending slipperily that the “insurrectionist understanding” is false and advancing without shame the smear that “Justice Scalia, that acclaimed lover of originalism,” is “taking his cues from the Tea Party rather than from the text and history of the Constitution.”

As it happens, Scalia’s view is not crazy at all. Indeed, it is the only supportable one. The Left, whose members are typically not interested enough in the details of firearms law to participate coherently in this debate, has long neglected to examine the historical record, preferring instead to dismiss the notion of the right to bear arms as a check on government as being axiomatically dangerous. This is to its great discredit. Reflexively to reject the notion that, as Thomas Jefferson put it in the Declaration, “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it” is to ignore not only the principles that undergirded the American founding but also the British common law that preceded it, the recorded debates surrounding the drafting and passage of both the federal and state constitutions, and the bulk of the contemporary jurisprudence.