"It will have to be decided in future cases," Scalia said on Fox News Sunday. But there were legal precedents from the days of the Founding Fathers that banned frightening weapons which a constitutional originalist like himself must recognize. There were also "locational limitations" on where weapons could be carried, the justice noted.
When asked if that kind of precedent would apply to assault weapons, or 100-round ammunition magazines like those used in the recent Colorado movie theater massacre, Scalia declined to speculate. "We'll see," he said. '"It will have to be decided."
In a wide-ranging interview, Scalia also stuck by his criticism of Chief Justice John Roberts and the majority opinion in the ruling that upheld the Affordable Care Act this summer. "You don't interpret a penalty to be a pig. It can't be a pig," said Scalia, of the court's decision to call the penalty for not obtaining health insurance a tax. "There is no way to regard this penalty as a tax."
The president could make three moves:
1. Allow law-enforcement agencies to confiscate more assault weapons like the AR-15 rifle used in the Aurora shootings by reinstituting a tighter definition of “sporting purposes” when inspecting assault weapons for import. President George H.W. Bush did this in 1989 to ban the import of assault weapons, using powers under the Gun Control Act of 1968, which stipulated that legal rifles had to be “suitable for sporting purposes.” Bush acted after a serial criminal killed five schoolchildren and wounded 29 others with an AK-47 assault rifle on Jan. 27, 1989, in Stockton, Calif.
President Clinton expanded that action with a second executive order in 1998 banning firearm imports and ammunition from China. The elder Bush watched his son, President George W. Bush, preside over the persistent watering down of the “sporting purposes” filter to block assault-weapons imports—a policy Obama has perpetuated. Fifty-three members of Congress wrote Obama on Feb. 12, 2009, urging him to tighten the ban on assault-weapon imports. Obama has ignored such requests.
“This continues to be a problem,” said Dennis Henigan, vice president for law and policy at the Brady Campaign to Prevent Gun Violence. “Something happened under the second Bush administration, and that has essentially continued under Obama.”
2. Expand Obama’s new requirement issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives that gun shops in border states report customers who purchase two or more domestically made assault weapons within five business days. The courts have upheld the reporting requirement, and it could be expanded nationwide without congressional action. Gun-control advocates credit Obama for taking the initial step on tracking multiple sales in border states (where Mexican cartel violence has risen), but a national system could help make multiple assault-weapon purchases more visible and traceable.
3. Toughen licensing requirements on gun dealers to secure their inventories. Advocates say that Obama could easily take three basic steps: Require dealers to better secure firearms from possible theft, mandate background checks of gun-shop employees, and eliminate the “fire sale” loophole that allows gun dealers who have had their licenses revoked to sell off their inventory without compulsory background checks on those sales. Rep. Gary Ackerman, D-N.Y., has written to Obama asking for this administrative-enforcement change. Obama already has used some executive power to expand the reach of criminal background checks for firearm purchases, which he touted in New Orleans, calling them “more thorough and complete.”