The Right to Bear Muskets

Antonin Scalia in a Q&A at the University of Chicago Law School:

Scalia delivered a speech on his favorite topic: defending “originalism,” looking for the framer’s intent in the constitution instead of guessing at what he mockingly called “evolving standards.”

In the Supreme Court’s 2008 Heller decision, Scalia and the other members of the 5-4 majority found the second amendment’s “right to bear arms” made bans on hand guns illegal.

A student asked Scalia why he would not apply his “originalist” analysis to the meaning of the word “arms,” which meant “muskets” at the time the constitution was being written — not modern weapons.

The word referred to weapons that could be carried by hand, Scalia said.

“Their notion of what arms can be borne is different from the modern reality of what arms can be borne,” Scalia said. “It didn’t include canons … Where it gets a little dicey is hand-carried rocket-launchers that could bring down a plane. We haven’t gotten to that.”

Not to imply that Scalia was hung by his own originalist petard, but I do love how certain words are allowed to evolve while others are not. “Arms” can evolve to include a Glock with an extended high cap clip and hollow-point rounds, but there’s no inherent right to privacy.

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