Scalia Elaborates on Heller and Rocket Launchers: “It will have to be decided in future cases.”

August 10th, 2012

A few weeks ago, Justice Scalia famously told Chris Wallace on Fox that “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.” This created something of an outburst.

In an interview on PBS last night, Justice Scalia elaborated on that answer:

MARGARET WARNER: Let me take another modern sort of situation.

We just had a couple horrendous mass shootings. You have told Chris Wallace on FOX television in an interview recently that you didn’t — you thought it was an open question whether, under the Second Amendment, you could even ban someone from carrying their own rocket launcher.


ANTONIN SCALIA: Oh, yes. And read the opinion in Heller.

It didn’t purport to say everybody can carry whatever weapons he wants. In fact, it mentioned that there was a misdemeanor in ancient times called affrighting. Affrighting consisted of carrying a frightening weapon, a head axe or something like that, to scare people.

So, it’s clear that certain restrictions on the bearing of arms are traditional and can be enforced. What they are, it will have to be decided in future cases.

I think that is basically what Scalia said on Fox, though his previous answer made it seem more likely that hand-held RPG launchers were constitutional. This answer, more nuanced, simply said the Court will address that issue when it comes up in the normal course of SCOTUS litigation.