Updated 3/23 — Has a veteran anti-gun Democrat U.S. Senator planted a seed of doubt about the Second Amendment, and a landmark Supreme Court ruling, to mislead the public about what the amendment protects?
During questioning Tuesday of Supreme Court nominee Judge Neil Gorsuch, California Sen. Dianne Feinstein posed the following question:
“In D.C. v. Heller, the majority opinion written by Justice (Antonin) Scalia recognized that, and I’m quoting, ‘Of course the Second Amendment was not unlimited,’ end quote. Justice Scalia wrote, for example, laws restricting access to guns by the mentally ill or laws forbidding gun possession in schools were consistent with the limited nature of the Second Amendment. Justice Scalia also wrote that, ‘Weapons that are more useful in military service, M-16 rifles and the like, may be banned’ without infringing on the Second Amendment. Do you agree with that statement that under the Second Amendment weapons that are most useful in military service … may be banned?” (Emphasis added)
But that’s not exactly what the 2008 Heller ruling stated, as written by the late Justice Scalia. Indeed, Feinstein’s quote appears to be out of context, and instead may reflect her predisposition toward banning so-called “assault weapons” that are merely look-alikes but are semi-automatic modern sport/utility rifles.
Here’s the full text of the paragraph as written by Justice Scalia in the 2008 ruling in District of Columbia v. Heller:
“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.”
Was Feinstein playing “Gotcha” with Judge Gorsuch while at the same time misleading the working press – which wouldn’t take the time to read through the 2008 Heller ruling to find the actual text – and/or the public?
Whichever the case, a careful reading of Scalia’s actual language does not appear to endorse banning such firearms at all.
But in the end, it is the reader who must decide what Justice Scalia was saying, and whether what Feinstein said he was saying is an accurate analysis.