Nel's New Day

July 29, 2012

Scalia Supports Private Ownership of Nuclear Devices

Horrifying. That’s one description for the statements that Supreme Court Justice Antonin Scalia made this morning on Fox News about the constitutionality of owning and carrying weapons. According to one out of the nine judges who determine the law of the land, any weapon that a person can carry is constitutional for that person to “keep and bear.”

Scalia includes shoulder-launched missiles in that category of legal private ownership. And the javelin anti-tank weapon and the M-28 Davy Crockett nuclear tipped recoilless rifle. The latter has the W-54 nuclear warhead and an explosive yield that’s 12 times more powerful than Timothy McVeigh’s bomb in Oklahoma City. And it only weighs 57 pounds. Easier to carry—and probably legal according to Scalia—would be a small nuclear device in a briefcase.

Scalia shows himself a “strict constitutionalist” when he said, “Obviously the amendment does not apply to arms that can not be carried. It’s to ‘keep and bear’ so it doesn’t apply to cannons.” But the Founding Fathers didn’t specifically discuss nuclear weapons. “But I suppose there are handheld rocket launchers that can bring down airplanes that will have to–it will have to be decided,” Scalia added. Maybe it’s just the use of the weapon. Scalia might approve of these in a crowded movie theater.

Scalia does have limits on weapons. In the same interview, he mentioned a tort called affrighting, “which if you carried around a really horrible weapon just to scare people, like a head ax or something, that was I believe a misdemeanor.” From that we might infer that Scalia would oppose head axes because they are frightening. Some people might be afraid of individuals’ carrying nuclear weapons on the street. Also would he object to such weapons as a head axe if the purpose is to use them against someone else instead of just frightening them?

In District of Columbia v. Heller, the Supreme Court overturned DC’s ban on unregistered firearm and the city’s prohibiting the registration of handguns except for one-year licenses issued by the police chief. Scalia justified his decision that carrying guns is legal with the words “weapons common at the time.” It’s possible that he thinks that a FIM-92 Stinger is a “common” weapon. A Supreme Court justice thinks that people should be able to legally own nuclear weapons. Just not cannons because one person alone cannot carry it.

Recently a Florida man needed only one gun when he decided to “stand his ground.” Kenneth Roop, 52, killed Nick Rainey, a 30-year-old door-to-door salesman. The dead man was walking away from Roop’s door when the older man drove up and shot Rainey in the shoulder because he was “in fear.” When Rainey fell to the ground and screamed, “You shot me,” Roop claimed he was still afraid because the man sounded antagonistic. Roop claims he saved his life by shooting Rainey in the back of the head. A witness said that Roop sat in his truck for a few seconds while Rainey lay face down on the driveway before killing the other man. Seven years ago Roop pulled a gun on the woman reading the power company meter reader, but he could still own 14 guns.

Scalia may think that, according to eighteenth-century values displayed in the Constitution, Roop was justified in shooting someone who knocked on his door and then tried to depart the property. Also in the interview, Scalia objected to the ruling of Griswold v. Connecticut which legalized contraception for all married women.

The justice also displayed an appalling racism in the court arguments for Arizona v. United States regarding the racial profiling of the Arizona anti-immigration law. Referring to the “invasion” of undocumented immigrants, Scalia compared them to a roving band of armed thieves. To a lawyer’s attempt to explain that many of the victimized people legally live in the United States–possibly having ancestors who lived here before the whites took over the land—Scalia said, “Are you objecting to harassing the people who have no business being here? Surely you’re not concerned about harassing them.”

His dissent in the case was even worse when his position relied on pro-slavery laws excluding free persons of African descent living in most of the South before the Civil War: “Notwithstanding ‘[t]he myth of an era of unrestricted immigration’ in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. State laws not only provided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration.”

During Justice Antonin Scalia’s tenure in the U.S. Supreme Court, he has supported torture, defended executing innocent people, and railed against anyone who embraces the “homosexual agenda” in a conclusion that people should be able to choose their life partners. He has argued within cases with the sensibilities and passion of partisan lawmakers, using the “broccoli” approach in requiring health care, repeating the idiocy that if people were required to purchase health insurance then the government might force them to buy broccoli. His record as a partisan politician should have him removed from the court.


  1. Even shouting “fire” in a theater is ok if there actually is a fire. We should be applying 1st amendment style usage rules to the 2nd amendment, that would allow me to own and carry anything I wanted to as long as I didn’t use them illegally. (Assault, murder, etc.)


    Comment by alan — December 31, 2013 @ 10:40 AM | Reply

  2. The Constitution specifically recognizes “Letters of Marque and Reprisal.”

    This means it accepts the existence of privately owned warships. With cannon.

    That means there is an assumed right to own them. This would also apply to tanks and aircraft. (Much like the internet didn’t exist, but is still covered under the First Amendment.)

    So Scalia is right.


    Comment by michaelzwilliamson — December 31, 2013 @ 10:19 AM | Reply

    • Of course. Good point Michael.


      Comment by ianto94 — December 31, 2013 @ 12:15 PM | Reply

  3. Sidestep the real questions with a silly caricature and erroneous facts. A hysterical distorted straw man argument. (


    Comment by John — October 30, 2012 @ 3:26 PM | Reply

  4. And the Davy Crockett was a three man crew served weapon. You have the weight of the lancher about right, actually some 57 pound not 51, but the projectile weighed another 76 pounds. Not really man portable, and not really useful for defense in the event of confrontation. But possibly useful for plugging the Fulda Gap from a Soviet tank onslaught.

    As to the Javelin, that too is a crew served weapon. One person carries the launcher, one carries the missle. And no, we are not in the 22nd century where we have nuclear powered missiles. The Javelin is a rocket, powered by combustion. And no it is not nuclear tipped. So other than the fact that you don’t know what you are talking about, a nice rant for Monday morning. And of course none of these weapons you mention are in common use by the people for self-defense. But apparently facts are not important to you


    Comment by ianto94 — July 30, 2012 @ 6:55 AM | Reply

  5. The errors in your post are numerous. Your description of Heller is wrong. More fundamentally, Scalia never says all hand held weapons are protected. He says they come within the second amendment. Whether they are protected is the question. Shooting fire in a crowded theater comes within the first amendment. It is not protected because it presents a clear and present danager of imminient harm sufficient to sanction. Scalia has made it clear that the second amendment does not protect the right to carry every weapon or any purpose at any place. He made it clear that rights are limited when there is a compeling governmental interest, the restriction is narrowly tailored, etc. Your post is simply a rant because you hate conservative jurists like Scalia. Shame on you.


    Comment by ianto94 — July 30, 2012 @ 6:38 AM | Reply

  6. Hear, hear! What a lunatic.


    Comment by lynchly — July 29, 2012 @ 2:06 PM | Reply

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