In a speech in Montana on Monday, the jurist was asked about the Second Amendment and what arms were protected by that provision of the Constitution. That “remains to be determined,” he replied. As one example, he asked if people have a right to “bear shoulder-fired rocket launchers?” Perhaps they do, Scalia suggested. The answer would turn on the historical understanding of the Framers, who Scalia said included the Second Amendment in part to preserve the right of people to revolt against a tyrannical leader.Plenty of people have asked the rhetorical question as to whether the most paranoid among us ought to be able to stockpile tanks and grenades and rocket launchers, but it is almost always framed as the obviously ridiculous scenario that nobody but a crackpot would seriously defend. With Scalia, though, you get the distinct feeling that he's contemplating it. Did the Framers intend that any citizen really ought to be able to wander around with a rocket launcher, just in case they felt a government helicopter was infringing upon their daily dose of freedoms? It hinges on the other half of Scalia's pseudo-intellectual fart, on the notion that the purpose of the amendment was not to ensure security, but to encourage revolution. If you claim the intent of the Second Amendment is to assure the right of the people to openly rebel against their government and murder its agents, under whatever nebulous definition of necessary any given group of them might dream up, then obviously muskets would not do; the intent would be to give the maniacs enough weapons not merely to fight, but to win, a possibility that just sent a half-million of them into orgasm just thinking about.
While Winkler gives a blunt summery of why this particular fever dream is, indeed, just a fever dream, I'm more interested in why Supreme Court Justice Fever Dream seems to keep coming up with these things. He has always been one whose interpretation of the Constitution has been impressively liquid, where the preferred decision in each case seems to come first and then various contradictory subsets of supposedly deeply-held beliefs get stapled to it as necessary to pad out the page count; states' rights are sacrosanct in one case, a week later they might not apply at all, or be so much as mentioned; precedent is a convenient crutch in one case, but a nonentity in the next half-dozen; the majority of the Court is condemned for not deferring to the congressional will whenever possible, one day, only to be followed the next by an open mocking of the notion that mere elected representatives can be trusted to decide anything at all, in the next. Scalia is a wonderful example of what government by royal fiat would be like; there are laws, to be sure, but the laws mean different things on different days depending on who's asking and how much the fellow likes you. He even did us the favor of condemning himself, in his own book, for having opinions in the past that contradict with those that he needed in more recent cases, thus completing the circle of believing every possible thing at every convenient time. A modicum of self-awareness is always an intellectual mark in favor of a scattered mind; it at least shows he fully intends to be scattered, and is not merely drifting into it out of stupidity.
Put me down on the side that says he has gone a little bit nuts. He was always a crank, certainly, but the royal streak has been coming out more, the racial streak has been thickening steadily, and the conspiracy streak has been adorned with bells and sequins and now can be seen riding on a unicycle right through the middle of oral arguments. He keeps muttering things that come rather directly from the conspiracy fringe and from the worst dullards of the tea party, and I don't think he ever quite did that before. It is symptom of something.
It looks like we may be hearing more of this rocket launcher premise, though. Critically, Scalia has a habit of giving speeches signaling exactly how he intends to change his core beliefs in accordance with next term's needs. If that's the case then we can look forward to a rip-roaring unicycle session at some point in the next year, and a (presumable) dissent in some case in which Scalia announces, with his usual gusto, that the American people ought to now have the right to murder the government via whatever technological means they might be able to afford, perhaps with a subnote on how since some people cannot afford rocket launchers or grenades or tanks or land mines or guided missiles, a careful reading of the Constitution indicates that the government ought to be subsidizing those purchases. To ensure our freedoms, of course.