Antonin Scalia: Supreme Court will See Gun Control Cases Soon

Justice Scalia (courtesy lawyersgunsmoneyblog.com)

The McDonald and Heller decisions have forever changed the game for gun control in the United States. The incorporation of the Second Amendment and the precedent that “commonly used” firearms cannot be banned has called into question everything from may-issue licensing to “assault weapons” ban legislation, possibly making them as unconstitutional as “separate but equal” and poll taxes. And according to Judge Scalia, the Supreme Court appears to be spoiling for a fight . . .

From The Washington Examiner:

Conservative Justice Antonin Scalia, decrying America’s demonization of guns, is predicting that the parade of new gun control laws, cheered on by President Obama, will hit the Supreme Court soon, possibly settling for ever the types of weapons that can be owned.

Scalia, whose legacy decision in the 2008 case of District of Columbia vs. Heller ended the ban on handguns in Washington, D.C., suggested that the Constitution allows limits on what Americans can own, but the only example he offered was a shoulder-launched rocket that would bring down jets.

And the wily judge suggested to an audience of Smithsonian Associates at George Washington University’s Lisner Auditorium Tuesday night that he is not just preparing for a new gun control challenge, but that he’s softening up one of his liberal colleague on guns.

From what I’m seeing, it looks like Kachalsky v. Cacase is going to be the chosen case to get pushed to the front of the SCOTUS line, a case which would get rid of “may issue” licensing and seal the right to carry a firearm for personal protection. Dywinski v NY is the one I’d really like to see though (NY SAFE Act challenge), but we’ll have to wait for it to work its way through the lower courts before the Supremes even get their first bite of that apple.

What I’m wondering is how California is going to handle their laws when New York’s proposed assault weapons ban is struck down. As far as this amateur backseat lawyer can figure, it’s going to be an all or nothing sort of decision that either stops any state from outlawing “assault weapons” based on their features or permits them to ban whatever they want. So if NY’s AWB is ruled unconstitutional, will the other states comply with the decision or will they need to be beaten into submission?

Whatever happens, this is going to be TONS of fun to watch. With the court as it is, it’s more likely than not that the Second Amendment is going to get some serious bolstering that will rain on the gun control advocates’ parade. There’s no better argument than “what you’re proposing is unconstitutional according to the Supreme Court” to kill a gun control bill.

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About Nick Leghorn

Nick Leghorn is a gun nerd living and working in San Antonio, Texas. In his free time, he's a competition shooter (USPSA, 3-gun and NRA High Power), aspiring pilot, and enjoys mixing statistics and science with firearms. Now on sale: Getting Started with Firearms by yours truly!

70 Responses to Antonin Scalia: Supreme Court will See Gun Control Cases Soon

  1. avatarOkieRim says:

    yea, if the SC remains the way it is, no deaths, no resignations…the sooner the better to get this done.

    • avatarIn Memphis says:

      +1

      Its critical this gets taken care of now, with the current justices. Well, I could do without Sotomayer after she screw over my brother firefighters.

    • avatarAnonymous says:

      Exactly. And this is why this sort of shit matters.

    • avatarC says:

      I dunno, mate. The obamacare thing has made me pretty damn skeptical of just how reliable they are.

      • avatarMark S Wild says:

        I had a law Constitutional law professor offer a great perspective on that decision: By declaring it a tax, they struck down the federal government’s power to do whatever it liked and instead labeled it a tax, which the government specifically has the power to do (I forget which Article.) This follows the line with other decisions that have been bolstering state’s rights and slowly working away from the position (established under FDR) that the federal government could run any program it liked under the Commerce Clause. It’s a more ‘conservative’ (as it bolstered states rights and further limited federal government power) decision than you probably realize.

        • avatarBilly Wardlaw says:

          Supreme Court should have shut it down as it was being plead, not offered a solution based on a name change. The legislators went out of there way to avoid calling it a tax when they passed it, and did not present there case based on the power to tax.

          In other words, it is not a judges place to work the defense’s case for them.

        • avatarThomas Paine says:

          +1 commerce clause repealed is the only way to smaller government.

        • avatarPeter says:

          No, what that means is the government CAN do whatever it wants, as long as the penalty is levied through the tax code.

        • avatarthomas says:

          Article 1, Section 8, Clause 1. Article 1 establishes the Congress. Article 1, Section 8 laws out the powers of Congress. Article 1, Section 8, Clause 1 states “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

      • avatarBob says:

        If obummer gets a chance he’ll be ruthless in putting the most marxist and anti-gun judges he can on the bench.

        • avatarStower2422 says:

          Any true Marxist would be for gun rights- the only way to bring about the revolution. Gun control proponents are class traitors (or would be if they weren’t predominantly of the bourgeoisie).

      • avatarpat says:

        Justic Roberts…..ohhh, justice Roberts. Without his brain dead decision, no Obamacare AND no Obama second term (probably).

        • avatarStower2422 says:

          He’s a man primarily concerned with his judicial legacy. He saw the writing on the wall for universal healthcare and wanted to put his name on the case that takes the first step towards it. Expect the same on the upcoming gay marriage cases.

        • avatarPeter says:

          Not to mention the Arizona illegal immigration case the same week.

    • avatarBull57 says:

      I don’t trust the Supreme’s since Robert’s failure on Obamacare!

  2. avatarTim says:

    From your lips….

  3. avatarjwm says:

    California will have to be beaten down. They truly bel;ieve they are a seperate nation here and the rules of the land do not apply to them. You would think with the example of the Confederacy’s fate to guide them they would return to the constitution before it gets to far out of hand.

    • avatarSammy says:

      Re; California will have to be beaten down. (Hope they use DiFi as a club)

      Let’s see how the LAPD does when it doesn’t have a 100+ to 1 advantage. I heard the the LAPD chief or some other jack boot say they did not intentionally burn down the cabin Dornor was in. Bullshit! The voice screaming to the burn the cabin down, now, wasn’t a cop. Well who the f else was there? They didn’t do much to put the fire out either. They were sending a message “This is what happens when you f with us”

      • avatarlp3056 says:

        So what if it was a cop? Which department, did the officer have any decision or authority to make the call?

        This was a guy actively shooting at officers and it was getting dark. Good call on the part of the SB Swat team. No other people we killed and Dorner will never hurt another person.

        • avatarCarlosT says:

          So if the crimes committed are serious enough, police officers feel threatened, and it’s getting dark, then summary execution by fire is now A-Okay in the Land of the Free. No need for a trial, hearing of evidence, any of that stuff. Good to know.

        • avatarBen says:

          Alleged crimes. It is important to note that Dorner had not been tried or convicted of anything at the point he was executed. The State doesn’t have the right to burn you to death simply because its more convenient than arresting you.

        • avatarDan1950 says:

          The cops are not required to die trying to arrest people either. The guy had every opportunity to surrender.
          Most of you folks raging at the cops, if you had the guts to do it, would not care HOW the guy was stopped from shooting at you. You just want it stopped.
          Napalm is great stuff from MY standpoint as an Infantryman in a contact with the enemy. Got NVA shooting at me from a treeline, F-4 napalms tree line, shooting stops. Life is good. Don’t care how the enemy is killed so long as he is dead and not shooting at me. Dead means the problem is solved no wounded with a frag etc.
          I don’t know what the LAPD REALLY did and neither does anyone else here. All we know is what is in the “news” and they are wrong as often as not if not more.
          Simple thing, don’t want to die? Don’t shoot at cops. Very easy to understand…

        • avatarCarlosT says:

          The guy’s surrounded, he’s not going anywhere, what was the hurry? Just wait him out, and when he’s hungry, thirsty, and tired enough, he’ll give up. The idea that suspects are “the enemy” in the same way that the NVA were “the enemy” is extremely dangerous, because “suspect” is a category you can find yourself in with the stroke of a pen. There are extremely good reasons the Founding Fathers put in serious restraints on government powers to mete out punishments. Without those restraints, it’s much too easy for the law to become a bludgeon for the powerful to strike down whomever they wish. Police getting to kill someone because (they claim) they’re not patient enough to wait out a situation is exactly the kind of thing we should be wary of.

  4. avatarCarlosT says:

    I just hope these go our way. We really don’t need a firearms version of Plessy v. Ferguson.

    • avatarBob says:

      Plessy v. Ferguson is an example of just how insecure scotus decisions can be in the long run. In this case, racial discrimination was basically determined legal by scutos in 1896, then overthrown in 1954.

      Gun laws don’t have quite the same moral traction, IMO, that racism has, so I think 2A rulings by scotus aren’t going to be as durable. If the court gets loaded with marxists, it could all start swinging the other way.

  5. avatarNew York Stagehand says:

    I look forward to the day when I can say, with some kind of perverse pride: “Yeah, I’m a New Yorker! We fought Saratoga, New York-Long Island, Kachalsky v. Cacase and Dywinski v. NY ! We are old guard patriots! We helped secure YOUR freedom.”

    Meanwhile, we appreciate all the help we can get from free America, here behind enemy lines! Together or separately as the saying goes…

    • avatarDisThunder says:

      I hear ya, and just sent SAF another check this morning. Hang in there, NY!

    • avatarAardvark says:

      Please don’t tar-and-feather all of us Long Islander’s. There are quite a few of us here “behind enemy lines”. Just not enough to overcome the gun control folks.

      Hopefully the “invading forces” will accept our NRA and NYSRPA cards for safe passage :D

  6. avatarscottlac says:

    With all that’s happened lately (ref:Noveske, Kyle, FPS Russia), I pray for Scalia’s health and safety.

  7. avatarBlehtastic says:

    Stressful and worrisome=fun?

    I know it has to happen, but this will be anything but fun unless and until the day that the Supreme Court hands down a verdict in our favor.

    • avatarJMS says:

      Seriously.

      “Whatever happens, this is going to be TONS of fun to watch.”

      Going to have to strongly disagree with that. I have a dog in this hunt. It affects me very deeply. I would consider the outcome of these cases to affect my life and liberty in a very meaningful way. Because of the import of the outcome, I would not have TONS of fun watching it, especially not “whatever happens.” If things aren’t looking positive for the pro-2A side, I’ll be pulling my hair out and biting my nails. Having TONS of fun will not happen. Not in the watching of this process or probably in any other facet of my life during the process. Not really a game here, eh?

  8. avatarSammy says:

    I’m not forgetting the Barry-care betrayal.

  9. avatarMatt in FL says:

    “…it’s going to be an all or nothing sort of decision that either stops any state from outlawing “assault weapons” based on their features or permits them to ban whatever they want.”

    While I’m excited to see this stuff progressing toward the Supreme Court, I’m more than a little nervous about The Nothing.

  10. avatarBill says:

    GOOD! Hear the case, repeal the laws and then we can start charging these wanna-be representatives with Treason and have them removed from office.

  11. avatarsurlycmd says:

    The antis will continue to throw gun control legislation out again and again. SCOTUS rulings that goes against their views matter little to them. They will throw more sh!te up to see what sticks.

    • avatarPhydeaux says:

      Sadly, you are correct. Their answer is to change the justices on the Supreme Court to get the rulings they want to see.

  12. avatarscbugbee says:

    Does anyone have a link to video or a transcript of Scalia’s remarks?

    I can’t seem to find any.

  13. avatarJim Barrett says:

    I agree that this is far from a slam dunk. Many people thought that SCOTUS would strike down the healthcare purchase mandate and no one thought that conservative poster boy Roberts would be the guy who forever extended Congress’s power to force us to do anything they want by hitting us in the wallet and calling it a tax.

    My bet? SCOTUS clarifies what limits on 2A are acceptable and you better believe there will be some. On the other hand, I could be very very wrong and Scalia could get a liberal justice to side with them on the issue leading to a 6-3 majority decision and the near permanent protection of gun rights.

    • avatarRopingdown says:

      That reality, to interpret a penalty as a mere tax, is as old as McCulloch v. Maryland. I don’t suppose the Court is done with “Obamacare,” but they can only rule on the particular issues presented by the cases they accept, no?

      • avatarTotenglocke says:

        I don’t suppose the Court is done with “Obamacare,” but they can only rule on the particular issues presented by the cases they accept, no?

        You mean like how SCOTUS shot down two or three (I forget which) defenses for Obamacare and then decided to re-write the law as a tax to make it Constitutional?

    • avatarTotenglocke says:

      On the other hand, I could be very very wrong and Scalia could get a liberal justice to side with them on the issue leading to a 6-3 majority decision and the near permanent protection of gun rights.

      I read another article about this and Scalia talked about how he’s gotten Kagan to stop being so anti-gun and she actually goes hunting with him now….so it could happen. I’d love to see a 6-3 decision instead of the usual 5-4.

  14. avatarJavier says:

    If the SCOTUS would be clear and final this would indeed be great. But when one allows for interpretation it gets fouled up by other lawyers.

  15. avatarLance says:

    May we all pray and hope for the Court to side with us and kill all AWB and all of fascist Obama’s dreams of a Nazi like America.

  16. avatarLucas D. says:

    Mr. Scalia, please don’t die for the next four years. Not that we want you to at any time anyway, but at the very least don’t leave any holes on the bench for our fearless leader to fill. So for the next four years do your cardio, eat your veggies and do not go bungee-jumping in Mexico. Pass this on to the rest of the sane, rational Justices in the Supreme Court. Thanks.

    • avatarHerb says:

      Not farfetched if you think about it: I hope that the conservative members of the Supreme Court all have food tasters, especially when they attend WH functions.

  17. avatarLemming says:

    I worry about Dywinski, or more specifically Tresmond. I wish him well, but I hope the case makes a better argument than it sounds like. We don’t need another Heller II.

    OTOH they are at least putting up a fight. NYSRPA, SAFE, AR15.com etc have filed a notice and they have a lawyer who really seems to grok 2a. So far NRA and SAF have talked big, but… Well, probably they’re waiting for the SAFE amendments. I hope.

    • avatarDirk Diggler says:

      NRA filed an amicus and SAF is actually the lead on the case and has gotten 20 state AG’s to sign on to an amicus

  18. avatarGene says:

    It is somewhat interesting to note that even with the Heller dicision, one cannot own a handgun in DC. The only FFL in DC no longer exists, so there is no place to purchase one. Last I heard, there is a suit going on to permit DC residents to purchase handguns in VA.

    I wonder if the “in cpmmon use” clause can include the necessary component of the firearm such as normal xapacity magazines. 30 rounders (and higher) are commonly in use and required for gun operation.

  19. avatarRopingdown says:

    It is emphatically the province and duty of the judicial department to say what the law is. Chief Justice John Marshall, delivering the majority opinion in Marbury v. Madison (1803)

    We know via recent decisions that Amendment XIV provides an individual right, and that it is a right incorporated through the Fourteenth Amendment and applicable to the States. The obviously conflicting understandings of the substance of the Right as evidenced by various state legislatures is such that we emphatically need the Supreme Court to ‘say what the law is.’ It seems the circumstances are such that the Court might appropriately hear a group of cases together, since various aspects of the right, its substantive extent and equal protection implications, are so closely intertwined in the statutes being enacted almost daily be various states. I hope that is the approach they pursue. Applicability of the Second Amendment to the states requires that states know what the right is. As the right is individual, citizens need to know the broad outlines of the right regardless of the state they may be living and working in at the moment. The rights of free speech and freedom from unreasonable searches should not vary in their minimum protection as we travel, though states are free to enhance those protections, as they frequently have. This level of clarity is now needed for our understanding of Amendment II.

  20. avatarChuck in IL says:

    “So if NY’s AWB is ruled unconstitutional, will the other states comply with the decision or will they need to be beaten into submission?”

    What do you think? If you want a clue, look no further than Illinois. We have had to beat them down at every turn on Conceal Carry, and they still haven’t thrown in the towel. They will soon enough though.

    • avatarJarhead1982 says:

      Give em a good kick in the nuts for me, turned down a good job offer due to the “politics on guns” in that state a few years ago.

  21. avatarRandy Drescher says:

    They will submit when it is costly enough, just as happened with black rights. When ny chicago start losing millions in rights lawsuits they will have to change. ///Reminds me of a daimler chrysler lawsuit where they jerked around a car buyer on warrantee, they F’d around with the wrong guy though, he won at the last court & daimler said get bent we aren’t paying. His lawyer put a lein on some dealerships & was about to garnishee income & finally dc gave in, approx. 1 million dollars later. I would say bankrupt nyc chicago except, well, what can you say, Randy

    • avatarJarhead1982 says:

      Old company I worked for refused to pay the bill to a subcontractor whom I went to work for after said contractual work was performed. The old company didnt want to pay, yada yada went to court and the courts ruled they owed, so when they halted payments again, we were to have the Sheriff to deliver a lien on some specific item of their business.

      I told them to put the lien on the main power input to their main manufacturing facility, you know, the one with the main power switch.

      Then I called one of the guys I had worked with and explained I was giving them a courtesy warning because I really didnt want to shut down a direct supplier to an automotive OEM, and how we would accidently be out of touch for 6-8 hours for any calls to reverse said lien or on the main power switch which of course we would have switched off as was our right to do with any equipment that was legally ours and we werent going to pay for the electricty to the plant, and cost them millions if not 10′s of millions in dollars in penalty fee’s from an automtive OEM being shut down because they were stupid (it would have bankrupted them and forced them out of business), it was amazing that All payments were made the next day for some reason.

      Everyone has a main power switch so to speak, you just have to be ruthless enough to shut the switch off in a fashion they cant do ANYTHING ABOUT IT!

  22. avatarJAS says:

    This is all quite complicated and the outcome is uncertain. There are preemptive clauses that apply both to the SCOTUS and the States. As long as these laws do not violate the Constitution it boils down to who enacts the laws first, Federal or State. This is why the anti-2A folks are all over the States legislation movement, they know how it works. They want to get all their stuff in, and quickly.

  23. avatarstateisevil says:

    He threw us under the bus. The 2nd amendment is clear, Miller was clear, and he threw us under the bus on full-auto’s. But now, if the moon is full, and it’s between 72-74 degrees F, you get some references, some training, wait a few months, pay a couple hundred $ in licensing/registration fees, D.C. will let you have a revolver. Whood d freakin doo. No thanks. I don’t want them to hear anything.

  24. avatarSome Guy says:

    Greetings from the Empire State – complete with our very own Emperor. So great to hear that several cases involving NY are on their way to the Supreme Court – we being the the latest victims of self-serving political hacks.
    In the end, many of this these laws being rushed through are unconstitutional; but things being what they are we probably have to wait for the lawsuits and saner times to set things right. This isn’t as bad as it sounds. Lets remember that the early progress in civil rights, i.e. Brown v Board of Education, was a result of a court case set against massive public opposition. Justice prevailed then and it will prevail now.
    The other factor is lawsuits, fight them with their own weapons. Once a fundamental right is confirmed by the SC (Right to Carry & Semi-Rifles ) all concerned can sue the livin’ heck out of any local or state agency involved. Nothing will “motivate” them more than that.

  25. avataranonymous says:

    > as unconstitutional as “separate but equal” and poll taxes.

    Actually, poll taxes were ruled constitutional by the U.S. Supreme Court in 1937. It took a constitutional amendment and several more court cases to eliminate them.

    Initially, the United States Supreme Court, in the case of Breedlove v. Suttles, 302 U.S. 277 (1937), found the poll tax to be constitutional. The 24th Amendment, ratified in 1964, reflecting a political compromise, abolished the use of the poll tax (or any other tax) as a pre-condition for voting in Federal elections, but made no mention of poll taxes in state elections.

    In the 1966 case of Harper v. Virginia Board of Elections, the Supreme Court overruled its decision in Breedlove v. Suttles, and extended the prohibition of poll taxes to state elections. It declared that the imposition of a poll tax in state elections violated the Equal Protection Clause of the 14th Amendment to the United States Constitution.

    The Harper ruling was one of several that rely on the Equal Protection clause of the 14th Amendment rather than the more direct provision of the 15th Amendment. In a two-month period in the spring of 1966, Federal courts declared unconstitutional poll tax laws in the last four states to have them, starting with Texas on 9 February. Decisions followed for Alabama (3 March) and Virginia (25 March). Mississippi’s $2.00 poll tax (equal to $14.33 today) was the last to fall, declared unconstitutional on 8 April 1966, by a Federal panel in Jackson, Mississippi. Virginia attempted to partially abolish its poll tax by requiring a residence certification, but the Supreme Court did not accept this.

    While the “no poll tax for gunowners” is a great moral argument — one I wish our side was really really pushing — it doesn’t necessarily follow that a court-of-law will see it that way.

  26. avatarSome Guy says:

    In the end, many of this these laws being rushed through are unconstitutional; but things being what they are we probably have to wait for the lawsuits, appeals to the Supreme Court and saner times to set things right. This isn’t as bad as it sounds. Lets remember that the early progress in civil rights, i.e. Brown v Board of Education, was a result of a court case set against massive public opposition. Justice prevailed then and it will prevail now.

    • avatarBob says:

      Brown vs Board of Education indeed was a landmark decision, as were the McDanald and Heller decisions. All of these decisions have faced massive resistance after the decision was handed down. Following the Brown decision, the President had to order Federal troops into two states (AR & AL) to enforce the decision.

      Here is our problem – The current president will not enforce a SCOTUS decision that he does not agree with. Therefore D.C. and Illinois can continue their resistance and their people may never be able to truly exercise their Constitutional rights. Until the President chooses to force DC and Illinois to comply, the decisions have little meaning.

      • avatarSome Guy says:

        You are correct in your point that “Brown” took many years to complete but complete it did and subsequent equal rights incorporation cases met little to no resistance at all – much to the delight of our liberal friends. This is now about to bite them in the butt. Once Scalia & Co run a couple of these restrictive monstorsities through the shredder the various powers-that-be will get the message. Will it be easy & instant – of coarse not. But it will happen.
        Love your picture tag by the way – very funny!

  27. avatarAnon in CT says:

    I can’t say that having our 2nd Amendment rights depend on which side of the bed Justice Kennedy wakes up on makes me feel all that good.

    • avatarSome Guy says:

      A very good point, it’s a nerve racking business but after the last two decisions it’s hard to imagine a complete turnaround. Believe me, right now the political atmoshere is poisonous. I never thought I’d see the Cuomo bill sail through – the old Pataki thing was bad enough but there it is.

  28. avatarSteve says:

    I know my rights. And I know where they come from.

    And they don’t come from nine black robes.

  29. avatarjohn says:

    “Let the future appointments of judges be for four or six years and renewable by the President and Senate. This will bring their conduct at regular periods under revision and probation, and may keep them in equipoise between the general and special governments. We have erred in this point by copying England, where certainly it is a good thing to have the judges independent of the King. But we have omitted to copy their caution also, which makes a judge removable on the address of both legislative houses.” –Thomas Jefferson to William T. Barry, 1822. ME 15:389

  30. avatarmuh says:

    I hope the supreme court will stop the actual gun control efforts. here in germany, our federal counstitutional court often was the only thing standing between our gouvernment and some new restrictions of civil rights, a last bastion of hope against a power-hungry facist gouvernment. I seriously hope your supreme court will do just as well (I didn’t read about their decisions regularly, so I don’t know much exept the Heller-Case from this court).

  31. avataranonymous says:

    The Receding Tide
    Becoming Uzbekistan
    March 26, 2012
    by Fred Reed

    Several things characterize countries of the Third Word, whatever precisely “Third World” means.

    The first is corruption. America is rotten with it, but American corruption is distinct from corruption in, say, Guatemala or Thailand, being less visible and better organized.

    Several major differences exist between the usual corruption in the Third World and that in America.
    . . .
    Third, lack of constitutional government. This is not the same as the lack of a constitution. The Soviet Union had an admirable constitution, and paid no attention to it. America heads rapidly in the same direction.

    In America, the Constitution is largely and increasingly ignored by the government.

    Read the whole thing.

  32. No Matter what the Ruling …90% of Legal gun owners
    will not Comply ….. Firearms will stay Regardless
    !

  33. avatarTim says:

    Apparently not…

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