Antonin Scalia on Gun Control

Supreme Court Justice (nominated by Pres. Reagan 1986)


Gun rights can be restricted for felons & sensitive places

The Supreme Court's 2006 decision in DC v. Heller provides good policy guidance on gun ownership rights and public safety. Justice Scalia wrote this opinion with great care. First, the Court affirmed the right of individuals to possess firearms for traditional lawful purposes such as self-defense within the home and for hunting.

Second, the opinion also held that Second Amendment rights are not unlimited. Justice Scalia went out of his way to declare longstanding laws that prohibit possession of firearms by felons and the mentally ill; that forbid guns in sensitive places such as schools and government buildings; that impose conditions and qualifications on the commercial sale of arms; and that restrict the right to carry any weapon whatsoever in any manner whatsoever and for whatever purpose, are still valid and enforceable.

Source: Patrick Wiesner's (D-KS) 2016 Senate campaign website , Aug 8, 2016

Felons may possess guns unless state explicitly prohibits it

The only limitation that Massachusetts law imposed on petitioner’s possession of firearms was that he could not carry handguns outside his home or business. In my view, state law did not “expressly provide that petitioner may not possess firearms,” and thus petitioner cannot be sentenced as an armed career criminal.

Petitioner’s prior convictions qualify as violent felonies only if the “restoration of his civil rights” by operation of Massachusetts law “expressly provided that petitioner may not possess firearms.“ In 1994, [that was not so]. To the contrary: Petitioner was permitted to possess shotguns, rifles, and handguns. Indeed, Massachusetts provided petitioner with a firearm identification card that enabled him to possess such firearms.

The Court rejects this on the basis of ”a likely, and rational, congressional policy“ of prohibiting firearms possession by all ex-felons whose ability to possess certain firearms is in any way restricted by state law. I respectfully dissent.

Source: 1998 SCOTUS case Caron v. US, 97-6270, dissenting opinion , Jun 22, 1998

Right to gun ownership is individual, not collective.

Justice Scalia wrote the Court's decision on District of Columbia v. Heller on Jun 26, 2008:

Overturning DC's handgun ban, the court ruled that the Second Amendment protects the individual right to own a gun for private use--not only in connection with service in a militia. The 5-to-4 decision, District of Columbia v. Heller, left unanswered questions, but also much room for continued gun regulation, short of an absolute ban.

HELD: Delivered by Scalia; joined by Roberts, Kennedy, Thomas, Alito

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. The Antifederalists feared that the Federal Government would disarm the people in order to disable the citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms.

DISSENT #1: Stevens, joined by Souter, Ginsburg, Breyer

The Stevens dissent rests on four main points of disagreement:
  1. that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended
  2. that the "militia" preamble demands the conclusion that the Second Amendment touches on state militia service only
  3. that many lower courts' later "collective-right" reading of the Miller decision constitutes stare decisis
  4. and that the Court has not considered gun-control laws (e.g., the National Firearms Act) unconstitutional.

DISSENT #2: Breyer, joined by Stevens, Souter, Ginsburg

Justice Breyer filed a separate dissenting opinion that, even with an individual-rights view, the DC handgun ban and trigger lock requirement would nevertheless be permissible limitations on the right. The Breyer dissent concludes, "there simply is no untouchable constitutional right to keep loaded handguns in the house in crime-ridden urban areas."
Source: Supreme Court case 08-HELLER argued on Mar 18, 2008

Other Justices on Gun Control: Antonin Scalia on other issues:
Samuel Alito(since 2006)
Stephen Breyer(since 1994)
Ruth Bader Ginsburg(since 1993)
Elena Kagan(since 2010)
Anthony Kennedy(since 1988)
John Roberts(since 2005)
Sonia Sotomayor(since 2009)
Clarence Thomas(since 1991)

Former Justices:
Merrick Garland(nominated 2016)
Antonin Scalia(1986-2016)
John Paul Stevens(1975-2010)
David Souter(1990-2009)
Sandra Day O'Connor(1981-2006)
William Rehnquist(1975-2005)

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Page last updated: Sep 21, 2020