Rocket Launchers and the Second Amendment

Respectfully submitted by Lawrence Rafferty (rafflaw) Guest Blogger

I have discussed the Second Amendment and the difficulties I have in allowing citizens to own semi-automatic weapons and large capacity clips of ammunition in the past, but Supreme Court Justice Antonin Scalia, in a recent Fox News interview, just took my concern over semi-automatic weapons and shot it down.. with a shoulder firing rocket! 

“Referring to the recent shooting in Aurora, CO, host Chris Wallace asked the Supreme Court Justice about gun control, and whether the Second Amendment allows for any limitations to gun rights. Scalia admitted there could be, such as “frighting” (carrying a big ax just to scare people), but they would still have to be determined with an 18th-Century perspective in mind.  According to his originalism, if a weapon can be hand-held, though, it probably still falls under the right to “bear arms”:

WALLACE: What about… a weapon that can fire a hundred shots in a minute?

SCALIA: We’ll see. Obviously the Amendment does not apply to arms that cannot be hand-carried — it’s to keep and “bear,” so it doesn’t apply to cannons — but I suppose here are hand-held rocket launchers that can bring down airplanes, that will have to be decided.

WALLACE: How do you decide that if you’re a textualist?

SCALIA: Very carefully.”   Think Progress

OK.  I get it now.  Under Justice Scalia’s originalist reading of the Constitution, he might not allow you to carry a big Axe around to frighten people, but a shoulder firing rocket launcher might be legal!  At what point do we decide that public safety just might trump a radical reading of the Constitution?  This is the same justice that opined in the District of Columbia v. Heller case that reasonable restrictions to the Second Amendment might be allowed by the Court.  Heller

Maybe Justice Scalia needs to see the photos of the carnage a semi-automatic weapon or a shoulder fired rocket launcher can create. Under this thinking, RPG’s might be legal for all citizens to own and carry.  Grenades can be hand-held and therefore under Justice Scalia’s warped sense of thinking, they too might be legal for citizens to carry.  Do we draw the limit at briefcase nukes that can be carried in one’s hand?

Obviously the theory that Justice Scalia is promoting can be carried to extreme and hilarious lengths.  The real scary part is that Justice Scalia doesn’t understand how hilarious and dangerous his concepts are in the real world.  I am also confused why Scalia is allowed by Chief Justice Roberts to go on Fox News and opine about issues that just may end up in front of the Supreme Court.  Isn’t this interview evidence that Justice Scalia has already made up his mind on the issue of other portable weapons?

What do you think of these comments by Justice Scalia and does his concept of originalism go too far?  Since Justice Scalia thinks that these kind of weapons may be legal, is it too far-fetched to wonder if the current crop of right-wing Militia’s are free to purchase these kind of weapons, even if they hope to use them against the government?

Additional Reference: Prof. Geoffrey Stone, University of Chicago

165 thoughts on “Rocket Launchers and the Second Amendment”

  1. Until the passage of the 1968 Gun Control Act many kinds of military weapons were legal to won as long as any applicable taxes had been paid (here we go with taxing the exercise of a constitutional right). The 1934 National Firearms Act had no category of “Destructive Devices. If a weapon was capable of full automatic fire it was a “machinegun” no matter what its size, the clearances were completed and the $200 transfer tax was paid. If it was a smoothbore under 26″ long and its barrel shorter than 18″, the same restriction was in effect.

    “WALLACE: What about… a weapon that can fire a hundred shots in a minute?”

    Many repeating firearms can be fired at a rate of 100 shots per minute. Few have a magazine (or belt) that contains 100 cartridges.
    A lever action rifle can be fired at such a rate. Most revolvers can be, in the hands of a revolver shooting expert, fired at a rate of 100 shots or more per minute.
    In 1932 Ed McGivern shot five rounds from a double action revolver at 15 feet in 2/5 of a second, covering the group with his hand. That is a rate of 750 RPM.
    Full auto firearms generally fire at a rate of 400 RPM (rounds per minute) or greater. The M16 fires at a rate of 750-900 RPM but due to magazine capacity limitation the sustained rate is 12-15 RPM, taking into account changing magazines and drawing back the bolt. The standard magazine capacity is 30 cartridges.
    The AK-47 rate of automatic fire is 600 RPM. The standard magazine capacity is 30 cartridges.
    The Heckler & Koch VP’70 (semi)automatic pistol fires its 3 shot burst at 2400 RPM.

  2. No law is going to prevent a mad man from killing. If they want to kill many people, they will find a way, be it chemicals, bombs, a katana etc. A lot of serial killers use knives, would making more knife laws help, no! it would just be another useless law that would keep lawful people from owning knives. The same is with fire arms. Do I need a rocket launcher? No, so long as my government is just, but if my government were to turn against us, I might have need then. The Problem is that it would not matter much because if citizens were ever given the same gun rights as the military, any rebellion would still be futile due to the massive resorces the Feds have.

  3. Shoulder fired rockets, grenades, and all other explosive arms would be considered a Title II Destructive Device under the NFA. They are legal to own by civilians under current laws and the Second Amendment.

    However, to purchase one, you must ensure that you are not breaking any local or state laws regarding the ownership and storage of explosives. Then you must find one that has been released for sale to the public (manufacturers don’t typically sell these to the public, plus they have contracts that dictate manufacturing of items only for the military and such, and teh military doesn’t let surplus go either) and find a Class III dealer to perform the sale and transfer. There is an extensive background check performed by the BATFE. If you pass, then you’ll have to pay for a tax stamp in the amount of $200, then, lastly you have to pay the seller what ever he wants for the explosive.

    Each rocket counts as it’s own Title II Destructive Device, and this process must be performed for each one you purchase, as well as for the launcher itself.

    These are the same laws that cover fully automatic weapons manufactured prior to 1986.

    Fun fact, none of the laws that are being put forward would do anything at all to make fully automatic weapons or rocket launchers illegal, and only target rifles that fit mostly cosmetic descriptions.

  4. All human beings have an ABSOLUTE right to self defence. That is natural law. If you deprive the carrying of arms you deny that right. How is a 120lb woman supposed to protect herself from. 6’2” 210lb man such as myself???? One of the first things the Nazis did was disarm the Jews. Then they put them in gas chambers. I don’t trust government.. left or right wing enough to disarm. ALL statistics show that in states that have “liberalized”the gun laws(made it easier for law abiding citizens to have access have gone down. By the way, the VAST majority of violence in this country has come from the Left. “Occupy Wallstreet” The Union violence. The “Tea Party” has been completely nonviolent. God man mankind. Colt firearms made mankind equal. Before firearms the largest meanest people had total control over a population. It was the firearm that allowed the smallthe weak to assert THEIR power as individuals. To disarm people is to make slaves of them.

  5. First I see people commenting if a weapon is suitable for hunting. It has NOTHING to do with hunting. If someone carried a large ax in a holster I would have NO problem with that. I’m amazed at the ignorance of people and the ABSOLUTE right we have to self defence against criminal AND governmental attack. If the American Indians would of had Semi automatic weapons there would have been NO Trail Of Tears. If black people would of been armed you could not have enslaved them. The FIRST gun control laws in this country were enacted to keep blacks down. The horrors of murderous governments throughout history far overshadows street crimes done with guns. Why do you think police officers don’t get robbed. Its not the uniform. It’s the gun.

  6. Raff-

    The rocket launcher is a legitimate hunting weapon. First you fire the rocket at a deer. Then you spend the next two hours walking around with a lawn and garden bag picking up the pre-cooked stew meat that’s strewn over a 200 yard circle.

  7. TBA,
    The prejudice is that he is first of all seems to be giving us a hint at what limits he, as a Supreme court justice, might agree to if a rocket launcher case or a case with a serious military weapon is brought to the Court. The mere fact that he is going on the air to state that if it can be hand carried then it has a shot of being approved, is going too far for a Supreme Court justice.
    Finally, if he is going to comment on issues that may come before the Court, it concerns me further that a rocket launcher is not dismissed out of hand.

  8. “I am also confused why Scalia is allowed by Chief Justice Roberts to go on Fox News and opine about issues that just may end up in front of the Supreme Court. Isn’t this interview evidence that Justice Scalia has already made up his mind on the issue of other portable weapons?”

    Scalia didn’t opine as to what limits on the right might be permissible. He simply said, “That will have to be decided.” When asked how a textualist might decide it, he said, “very carefully”. Where is the prejudice in this?

  9. @Mike Spindell “premise that a President needs business experience”

    In addition to the historical record that you have documented so well, there is an important question regarding the relevance of business experience to the national economy.

    A simple example has to do with prices, wages and the fallacy of composition. If a business man is not selling enough and has idle resources he may consider cutting prices to increase demand and revenue. But if national unemployment is a problem, cutting wages will not help. Cutting wages can reduce income, prices and perhaps lead to deflation and a downward spiral of further unemployment, wage cuts, price cuts, and more deflation. In this simple example the business mans experience is exactly wrong to solve the national problem.

    A particular businessman may be a crackerjack whiz at solving the nations economic problems including unemployment. But we can be fairly certain that his business experience is largely irrelevant to solving national problems.

    The fact is running a company is much more like managing the family budget that it is like running a national economy. Nations have tools, resources, and work with aggregates that have no counterpart in business or in families.

  10. Jim,

    ” When you have close to 50% of American workers not paying any income tax then the country is headed for disaster.”
    If your percentage is accurate (I should doubt it given your track record for accuracy but I’m too tired to look it up), you’re quite right. The poverty rate is far worse than I thought or there are way too many multimillionaires sending the money off-shore. Probably a bit of both.

    Ah, yes, the old double taxation bugaboo. Over the years Dad paid taxes on income minus deductions. He never paid a wealth tax which would take into account the appreciation of his assets. The estate tax is a tax on the transaction of transferring his wealth from the estate to his beneficiaries. The amount is based on the amount of his wealth.

    Sales taxes are probably the most unfair of all taxes. However, I would go for a “sales” tax, more appropriately called a transaction tax on the sale of stocks, bonds, and other financial instruments. Other candidates: services of lawyers, accountants, and other similar professionals.

    Personal rule. = No discussion allowed about revoking “entitlements” to those not paying taxes because they don’t earn enough until the minimum wage is raised to $12/hr and everyone has medical care at an affordable price (e.g. expand the VA system to include everyone).

  11. bettykath

    You do not know accounting. The estate is the father’s and he is having to pay tax even though he is dead. It has to be filed on his last tax return. So, in essence it is double taxation. I am tired of hearing “fair share.” Fair means everybody pays. When you have close to 50% of American workers not paying any income tax then the country is headed for disaster. Not to mention that those not paying income tax are collecting many entitlements.
    I am for a national sales tax and the elimination of both income and property taxes. I believe when you pay off property it should be totally yours. Many say sales taxes won’t be enough then learn to live on what you have just like millions of Americans have done. Of course, we would not tax things like food and medicines and for large purchases like homes and cars a reduced sales tax.

  12. Jim,

    I’m surprised we agree that capital gains should be eliminated. I think it fair that the schedule should be retained and losses subtracted from profits, but the net should be taxed at least at the rate of wages of ordinary people. In my world of druthers, I have them taxed at a higher rate because there is no personal labor involved. The same with Mitt’s deferred interest.

    re: estate tax: There is no double taxation here. The estate pays the tax. It’s a transaction tax on the estate, not the father and not the sons. Let the estate do what it has to do. So the estate sells off a bit, the sons work as hard as dad and using the estate they got for free, they can build up their own estate. Geez, the sons inherit a $7M dollar estate (minus taxes) from the old man and they think they should get it all and for free. Horatio Algers they are not.

    Oh, and don’t try to kick me out of my own country.

  13. bettykath

    Get rid of the inheritance tax, Fair means everybody pays the same rate. Capital gains should be eliminated.

    Answer this: A father dies and leaves his two sons a ranch of 1000 acres. The value of the ranch is 7 million dollars. The current deduction is 5 million so the estate has to pay taxes on 2 million. The two son’s don’t have the cash and therefore have to sell much of the ranch to pay the taxes so they can inherit what is left. Remember the estate pays which means the father was taxed twice. If you think that is right then you should live in another country.

  14. Jim,

    There could easily be no deficit and the debt would down if the richest folks would pay a fair share.

    On the income side: fix the tax code to eliminate deductions, treat all capital gains as ordinary income, increase the inheritance tax and increase the tax paid for over $250,000, and another increase for over $1M, another for over $5M; remove the loopholes for multinational corporations.

    On the cost cutting side, bring all the troops home, cut the military budget, cut the oil depletion allowance.

    On spend and save: phase in an expansion the VA to include everyone, provide incentives for solar energy.

    Lot of other possibilities.

  15. leejcaroll

    Sen. Claire McCaskill won’t talk about Obama care for fear of losing in Missouri. You said you didn’t know of anybody. Reed won’t bring the appeal ACA bill up because he knows some DEMS will have to vote for it to keep their job and it did pass the house. Oh, I see. You do not want to address the debt v. deficit issue. I guess that it is your demise.
    The stimulus bill has not worked. Unemployment over 8%, Job growth way below where it needs to be to keep up with population. National debt increased by 4 trillion.

  16. Not like repubs and not willy nilly as the repubs have and are. Um it didnt work? The auto industry is back or did you miss that news report?
    ACA is the law of the land, the house already voted 33 times to repeal it never succeeding, Reid is not goiing to waste the senate time like Boehner; on not doing the people’s work,.when they could have been putting forth and voting on real things like a jobs bill.
    There you go making things up. I dont know any dem not willing to talk about ACA People say they want and like it, when asked about specifics of ACA, when asked in general, do you like Obamacare, majority say No because they believe the repub lies and don;t understand what they said they like specifically is actually ACA (Obamacare, you know Romneycare when he liked it and enacted it beofre he disliked it because the name Obama is attached…
    I didnt address it because I read CBO report, not as you said and not worth my time as is this argument with you. You can;t see beyong your own nose. Debate is only fubn and engaging when both sides are willing to engage, you merely repeat.

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