Scalia the Wimp

“Nuance” is back and the Republicans are loving it. After eight years of government on a policy of no-nuance, Obama has suggested that he wants to “nuance” his policy in the Middle East, and the wingers dancing with malevolent glee. Not a manly thing to do, this nuance stuff: start down that road and you end up a pussy like Colin Powell.

I reflected on this point as I read Justice Scalia’s opinion in D.C. v. Heller, the Supreme Court’s new gun rights case (link). Now, if ever there was a manly guy who could be trusted not to sink into the bog of subtlety, one would think it would be ol’ high-saliency Scalia. Therefore it is with consternation that I read some of the law French in the back end of the Heller opinion where Scalia lets slip just what a sissy he can be.

For example, here is Scalia saying that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Felons, you say? You really going to keep handguns away from, say Martha Stewart, just because of a few thoughtless comments about her portfolio? And what's all this cop-out talk about "metally ill"? Aren’t the so-called “mental health” laws exactly the thing that nanny state uses to keep free thought in harness?

“Or,” Scalia continues, nothing prevents “forbidding the carrying of firearms in sensitive places such as schools and government buildings." Wait a minute, whoa—isn’t the precise point of the Second Amendment, the fact that we can’t trust all those pinheads in Washington to protect our fundamental freedoms? The mere fact that he may feel more comfortable if I am not allowed to come packin’ heat when I visit the Supremes—that fact should hardly be allowed to trench upon an immutable right.

“Or”—he isn’t done yet—“laws imposing conditions and qualifications on the commercial sale of arms.” I’d say that if the gun-show crowd ever gets its hands on that one, Scalia better make sure he has an unlisted phone number and a high security fence.

But the oddest part of the opinion may concern what you could call the “proton pack” rule—the question whether Bill Murray can go busting ghosts with an untested nuclear weapon on his back (link). A principled originalist might find himself caught in a cleft stick on this one; not so Scalia. He first considers whether the Second Amendment protects “only those arms in existence in the 18th century.” He dismisses that one as “bordering on thee frivolous.” You can almost hear Bill Murray’s lewd chuckle at that one, but he’d be premature—moments later, Scalia is declaring that the Second Amendment, while not limited to the blunderbuss, still may not extend to protect military weapons in private hands—or, to put it more directly, may not protect the private ownership of precisely those weapons that you would need to equip a “well-regulated militia.”

Don’t misunderstand me, some would say that Scalia is right to make this kind of discrimination, allowing, say, weapons appropriate for mere domestic violence, while barring, say, weapons that might be useful in taking out a Federal building. Such a result might be characterized as prudence—a balancing of interests and traditions, seasoned with wisdom and mature good judgment.

But wisdom and mature good judgment are precisely the perspectives on which Scalia, at least publicly, likes to heap such scorn. Serious gun nuts Constitutionalists had better keep their hands on the trigger: ol’ Nino has gone all girly.