As Promised - Scalia's Clever Cover On "Reasonable Restrictions"...
In
DC v. Heller. at 54, Scalia wrote:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.
This excerpt contains "purpose" which the Second Amendment does not protect. It is also pertinent to note that it doesn't make much difference whether the right secured by the Second Amendment should be unlimited or not. The Founding Fathers secured the right as if it is unlimited. I, for one, believe it is unlimited as did the Founding Fathers. How else could We the People grant unlimited power to the Union to defend us if we didn't have that unlimited power ourselves?
Further along at 54 and 55, Scalia wrote:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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 forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26
(Note the footnote #26 which we'll get to in a minute.) Scalia did not say all the longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms are sacrosanct or are "reasonable restrictions". He wrote that they didn't do a complete analysis of the scope of the Second Amendment and could not say those "restrictions" were in doubt without a complete analysis. He left it wide open for a future analysis to make such a definitive call. All he said was that such a call wasn't made in this deliberation(
DC v. Heller).
Now I'll address Footnote 26 in which Scalia wrote:
26 We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.
What can we glean from this? That his list of restrictions was incomplete? Yes, but more important is the inclusion of the phrase "presumptively lawful". The opinion of the Court is only
PRESUMING these regulatory measures("reasonable restrictions") are constitutional. That's twice Scalia made that point. This is the Court passing the buck on to the next case to come along that would address the issue of the constitutionality of all of these presumptively - for the time being - lawful regulatory measures.
There is a reason the issue of these presumptively lawful regulatory measures was not addressed. My guess would be to secure a fifth concurrence, and I would further guess that the fifth concurrence would be that of Justice Kennedy.
It can be said of Justice Antonin Scalia that he artfully crafted the majority opinion in
DC v. Heller and secured the fact that the Second Amendment protects a right of the individual, and made it clear that this is just the beginning of the denouement.
Woody