So how far does the Second Amendment go? Today in an interview on Fox News, a prominent legal analyst suggested that “hand-held rocket launchers” are covered, because they are arms one can keep and “bear.”
We’ll see. Obviously the Amendment does not apply to arms that cannot be hand-carried — it’s to keep and “bear,” so it doesn’t apply to cannons — but I suppose here are hand-held rocket launchers that can bring down airplanes, that will have to be decided.
That legal analyst, over course, is Justice Antonin Scalia, the author of District of Columbia v. Heller, which held that the original understanding of the Second Amendment protects an individual right to keep and bear arms.
If I didn’t know better, I would think this was actually an interview on the Daily Show or some satire.
Come to think of it, my frequent-coauthor, Ilya Shapiro was on the Colbert Report two years ago after McDonald v. Chicago. Colbert asked him if the Second Amendment protected the right to have a rocket launcher. Shapiro, a staunch defender of individual freedom, emphatically said no.
I guess Ilya needs to beef up his liberty game to catch up with Scalia.
Update: Scalia elaborates on the relationship between originalism and textualism–as his above answer seems somewhat (to borrow a favorite phrase of his) “grotesque.”
Originalism is sort of subspecies of textualism. Textualism means you are governed by the text. That’s the only thing that is relevant to your decision, not whether the outcome is desirable, not whether legislative history says this or that. But the text of the statute.
Originalism says that when you consult the text, you give it the meaning it had when it was adopted, not some later modern meaning