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.

Immigration Not a ‘Victory’ for Brewer

The U.S. Supreme Court is probably holding onto its revelation of the health care ruling until the last minute (aka Thursday), but justices did reveal their decisions on immigration and Montana’s version of Citizens United today. Both these cases will set the direction of the United States for decades to come.

American Tradition Partnership Inc. v. Bullock, the Montana case, was lower profile than the Arizona case on immigration but equally important. Those who watch the millions of dollars rolling into the Republican candidate campaigns know that Citizens United gave corporations unrestricted political spending in the name of “free speech.” Before this SCOTUS 2010 ruling, Montana had passed a law, exactly one century ago, against corporations buying elections, but a 5-4 ruling from SCOTUS refuses to let this law stand.

The immigration ruling, Arizona v. United States, has been far more publicized and perhaps more misunderstood. Justice Elana Kagan recused herself from the decision, resulting in a 5-3 split for most of the decisions.  (Clarence Thomas should take a lesson from Kagan because of his conflict of interest in an extensive number of cases!)

Three provisions of Arizona’s immigration law were struck down; making it a state crime for an immigrant not to be carrying papers, criminalizing the failure of immigrants to register, and forbidding an illegal immigrant from working in Arizona. The fourth provision, the requirement that police check the immigration status of people they stop for traffic or other offenses, was allowed to stand because it seemed to coordinate with federal law and had not gone into effect. The justices left the door open for this provision to be challenged again after it does go into effect, allowing the possibility that it, too, will be declared unconstitutional.

Arizona Gov. Jan Brewer has been touting the decision as a victory. However, most law officials in Arizona, other than the infamous Sherriff Joe Arpaio of Maricopa County, disagree; they view the SCOTUS ruling as a way for them avoid racial profiling. The provision does require Arizona police to check the immigration status of people reasonably stopped in the course of keeping public order in the state, but it doesn’t permit police to hold people if they don’t have papers. The only responsibility that police have is to tell immigration authorities about undocumented immigrants.

According to the ruling, a state doesn’t have the right to make laws on a law reserved for the federal government. In the decision, Justice Anthony Kennedy wrote, “The state may not pursue policies that undermine federal law.” Supporting Kennedy’s decision were Chief Justice John Roberts and liberal Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Justice Samuel Alito joined the majority of five in striking down the provision that immigrants not carrying papers are guilty of a misdemeanor.

From these two rulings came two revelations that are not connected to the decisions themselves. The first is the lack of professionalism from at least one of the justices. Antonin Scalia used his dissent to rant against President Obama’s executive directive to allow undocumented immigrants under the age of 30 to stay in the United States to apply for citizenship if they meet certain criteria including being brought into the country as a minor.

Scalia also declared that the Constitution’s Framers would have “rushed to the exits” if they’d known an executive branch would wield such power and that some of the states would not have joined the union if they knew what the president was going to do. In addition, he stated that keeping the Arizona immigration law was important to protect the state.

This and other comments show that his dissent came from an opinion regarding what “should” be done and not the constitutionality of the Arizona law. Like his arguments during the health care debate, Scalia is showing himself to have lost his ability to “judge”; instead he wants to make law. The conservatives should take notice that Scalia has gone far beyond the classic “activist judge.”

Scalia’s fury may also have come from the way that the ruling seemed to approve of the president’s directive to allow young undocumented workers to remain in the country. On page 17 of the opinion, the Court explicitly lists “a veteran” or a “college student” as two examples of undocumented immigrants who should not experience “unnecessary harassment.”

The other revelation from these two landmark rulings is the consistent rejection of state’s rights. Both decisions put federal rule over states’ rights, the opposite of traditional conservative views. Ironically enough, the four more liberal judges voted for states’ rights in the case of Montana’s case. Scalia, who had a temper tantrum about the sovereignty of state law in the Arizona case voted against Montana having the right to retain a century-old law to keep fraud out of elections.

The decision for a third case, Miller v. Alabama, announced today also ruled federal law over states’ rights when it forbid mandatory life sentences for juvenile offenders. The dissent in this case also shows the stress that at least one justice may be feeling. In his dissent to the decision, Alito mixed up the name of the prison administrator, Donald Roper, and the name of the 17-year-old juvenile offender, Christopher Simmons. Alito’s dissent read that Roper “committed a brutal thrill-killing just nine months shy of his 18th birthday.”

The health care case could also be seen as a states’ rights situation, with 26 states trying to keep the Affordable Care Act out of their terrain. There is no second-guessing this court. It may come down to Kennedy’s vote.