Kush Desai, DCNF
MSNBC host Joe Scarborough claimed Friday that the late Justice Antonin Scalia and President Ronald Reagan did not believe that assault-style weapons like the AR-15 were protected by the Second Amendment.
Reagan did endorse a ban on assault weapons after he left office, but Scalia had argued that guns like the AR-15 are constitutionally protected.
In light of Wednesday’s high school shooting in Florida that left 17 dead, commentators like Scarborough have argued in favor of banning semiautomatic firearms like the AR-15 rifle used by the Florida shooter. Pushing back on the idea that Americans have a constitutional right to own such weapons, Scarborough claimed that even Republican icons like Reagan and Scalia did not believe that they were constitutionally protected.
“Ronald Reagan and Justice Scalia, undoubtedly the two greatest conservative icons of the past half century, both said that assault-style weapons are not protected by the United States Constitution,” Scarborough claimed. “And Ronald Reagan lobbied to get them banned.”
Scarborough specifically mentioned the AR-15 as an example of an assault-style weapon.
Both Republican figures that Scarborough referred to have been associated with the gun rights movement and gun culture. Reagan, for instance, was an open and proud member of the National Rifle Association (NRA) and a champion of the gun lobby during his presidency.
Even after he was shot and nearly killed in 1981, Reagan continued to advance pro-gun policies such as a proposal to abolish the agency that enforces firearm laws. He later rolled back federal gun control measures by signing the Firearm Owner Protections Act of 1986, although the bill also prohibited civilian ownership of automatic machine guns moving forward.
But after he left the presidency, Reagan publicly embraced increased gun control.
He wrote an op-ed in The New York Times, for instance, endorsing the 1993 Brady Bill that mandated background checks for those seeking to purchase guns. (The bill was named after former Reagan press secretary Jim Brady, who was partially paralyzed after being shot during the attempted assassination of Reagan.)
Three years later, Reagan co-wrote a letter to the House of Representatives with two other former presidents, Jimmy Carter and Gerald Ford, lobbying in favor of legislation that included a 10-year ban on manufacturing certain assault weapons like the AR-15 Colt for private citizens.
“While we recognize that assault weapon legislation will not stop all assault weapon crime,” the letter read, “statistics prove that we can dry up the supply of these guns, making them less accessible to criminals.”
The ban passed in 1994, but was not renewed when it expired in 2004.
Scarborough was right about Reagan, but he incorrectly characterized Scalia’s position on guns like the AR-15.
Scalia – an avid hunter and a member of a secretive fraternal order of hunters – joined or wrote many Supreme court rulings that pushed back on or limitedgun control measures. One of the most notable gun-related cases that Scalia heard on the Supreme Court was the District of Columbia v. Heller. The landmark 2008 case involved a challenge to the District’s prohibitive gun laws.
Scalia penned the majority opinion on the Heller case, affirming that the Second Amendment protects the right of individuals to own guns for lawful purposes like self-defense. “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment,” Scalia and four other justices ruled, “as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”
But Scalia’s ruling also recognized that certain limits on gun ownership are not unconstitutional. “Like most rights, the right secured by the Second Amendment is not unlimited,” the ruling said. “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill … or laws imposing conditions and qualifications on the commercial sale of arms.”
Scalia emphasized the legal distinction between weapons that are in “common use” and weapons that are “dangerous and unusual.” While guns that are commonly used for lawful purposes are constitutionally protected, Scalia wrote, uncommon guns are not protected and can be prohibited. He only provided one example of the latter: the M-16 automatic assault rifle.
Scalia thus relied on a vague, categorical standard to determine which weapons are and are not protected, leaving his stance on the constitutional protections afforded to semiautomatic rifles like the AR-15 uncertain.
“I think if you look only at the Heller case, it’s not clear,” Adam Winkler, a professor at the University of California – Los Angeles School of Law, told The Daily Caller News Foundation. “Under the Second Amendment in the Heller case, there’s the difficult question of which arms are protected and which are not. Handguns are protected, but shoulder-fired rockets obviously are not protected.”
The Supreme Court has never agreed to hear a Second Amendment case that could clarify the Heller ruling as it relates to AR-15s.
But Justice Clarence Thomas and Scalia strongly believed that the Court should have heard one such case in particular: Friedman v. Highland Park, a suit that involved an Illinois man challenging his city’s ban on guns like the AR-15.
Thomas even wrote an opinion of dissent that was joined by Scalia arguing why the court should have taken on the Highland case. And in one particularly strong paragraph, Thomas laid out where they stood on the matter.
“Roughly five million Americans own AR-style semiautomatic rifles … The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting,” Thomas wrote. “Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.”
“I think when you read that paragraph, it’s pretty unambiguous that Scalia thought they are protected,” Winkler told TheDCNF.
In a response for comment, Scarborough pushed back on reading too much into the Highland Park dissent. The dissenting opinion, Scarborough noted, was not an actual Supreme Court ruling that carries any legal weight; it was merely an argument that the Court should have heard a case that would have then been decided on its legal merits.
Scarborough is right on this point. Lower-level courts would not consider the Highland dissent when ruling on gun-related cases. And some circuit courts have, in fact, agreed with Scarborough’s reading of the Heller decision by upholding bans on assault weapons as constitutional.
But Scarborough claimed that Scalia not only believed, but had actually expressed that AR-15s and similar semiautomatic firearms are not constitutionally protected.
“If you’re out there and you hear the National Rifle Association, or you hear your Republican congressman, or you hear your Republican senator say that somebody that’s trying to take away an AR-15 from you … is taking away a fundamental right of yours, they are lying to you. Justice Scalia, were he alive today, would tell you that they were lying to you,” Scarborough said during his segment on “Morning Joe.”
The dissenting opinion may not be precedent, but several legal scholars told TheDCNF that it is fair to read the dissent as representative of what Scalia had to say on the constitutionality of AR-15s.
“If you wanted to be scrupulously fair, you could say that it was just an effort by Thomas and Scalia to say that the Court should hear this case rather than decide it in any particular way,” Winkler explained to TheDCNF. “The problem with that is that both justices were pretty clear about what they thought in that one paragraph. That’s pretty hard to get around.”
Scarborough also pointed out that the opinion was written by Thomas and merely joined by Scalia, and that it is accordingly a stretch to read it as a reflection of Scalia’s individual views.
Legal scholars, however, did not view it as a stretch. “If Antonin Scalia disagreed, he would not have signed on. He would have written his own dissent if Thomas had made some argument he didn’t want to make,” Joyce Malcolm, a constitutional law professor at George Mason University’s Antonin Scalia Law School, told TheDCNF. “He was very angry about the circuit court’s ruling.”
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