Guns and the Supreme Court

It was unsurprising, and in practical terms maybe not very important, that the Supreme Court struck down the District of Columbia's blanket ban on handguns. In yet another 5-4 decision (the four conservatives plus Justice Kennedy against the four liberals), it ruled that the Second Amendment enshrines the right of individuals--as opposed to individuals serving as part of a militia--to keep and bear arms. It also affirmed that this right is qualified, and that all manner of (unspecified) restrictions on gun ownership and use are constitutional. There will have to be further litigation to test the limits, but in most of the country the ruling will make no difference. The DC law failed because it was an outright ban on handguns, including weapons kept in the home for self-defense, and (the majority said) upholding this law would have meant rendering the Second Amendment defunct.

This is how Justice Scalia, writing for the majority, summed it up:

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns... But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Actually I have no objection to my neighbors in DC defending their homes with handguns. I'm all for making burglars anxious. But is this ruling as ruthlessly logical as it purports to be?

The Second Amendment has already been substantially hollowed out--and the Court says it has no problem with that, only with taking it to DC's extreme of outright prohibition. For the sake of argument, then, let us suppose--as Scalia invites us to--that the Second Amendment is indeed outmoded, for the somewhat plausible reasons he mentions. Let us suppose, again for the sake of argument, that hollowing out the Second Amendment all the way to nothing would save hundreds of lives a year. And further suppose that public opinion in DC was solidly behind DC's law. Even if all that were true, the majority says it would not be the Court's job to pronounce the Second Amendment extinct--to do that, Congress and the states would have to climb the mountain of repealing it.

The baffling implication is that the Court can properly take the law all the way from "shall not be infringed" to the tight (and apparently constitutional) controls now exercised in many jurisdictions, but that the last small step to prohibition, however beneficial to the locality concerned, is beyond its competence and demands extraordinary if not impossible political exertions. What am I missing?

Comments

The D. C. gun case is an EXCELLENT opinion from the High Court! OsiSpeaks.com

Posted by KYJurisDoctor | June 27, 2008 3:20 AM

The Supreme Court can't nullify constitutional amendments. They can interpret those amendments to allow reasonable legislative flexibility. Seems straightforward enough to me.

Posted by jamie | June 27, 2008 12:15 PM

Well, someone who cares about gun rights will say that "the last small step to prohibition" is no small step.

To take a different example, the Fourth Amendment has been eroded in many ways, but if the Court were to decide that the police will no longer under any circumstances need a warrant to enter and search a home, we would probably look at that final eviscerating step as significant.

Posted by Psittakos | June 27, 2008 2:53 PM

I am as pro-gun control as probably most of the Atlantic's readers, but your argument here has one very glaring hole. Your second supposition ("...that public opinion in DC was solidly behind DC's law") is simply wholly irrelevant to the actions of the Supreme Court -- or to any Court, for that matter. It is *not* the province of the Court to decide what people want; that responsibility clearly falls to the legislative branch -- regardless of how much we gun control advocates may wish that not to be the case here.

Posted by Scott | June 27, 2008 5:05 PM

funny-i dont hear complaints from the usual suspects about activist judges. here 5 unelected judges decided to overturn a local ordinance that was enacted through the normal political process by the citizens of the district of columbia. justice stevens interpretation of the 2d amendment makes more sense to me. it was designed as a constraint on congress to prevent it from prohibiting the right to keep an bear arms so as to effectively eliminate the state militias and substitute a national standing army. had congress passed this law for the entire country, i think it would have been unconstitutional, but here the district was acting like a municipality. municipalities, assuming state law permits, should be able to ban guns within their boundaries.

Posted by srr | June 27, 2008 5:09 PM

srr-
So I take it you think that the Bill of Rights is not fully incorporated? What other amendments should municipalities be able to violate at will?

Posted by jamie | June 27, 2008 5:21 PM

Nothing. I've been wondering what the basis for all the various gun laws myself. but then similar quandaries exist for literalists in many other B-o-R areas: 1st (the classic examples), and now 4th, where necessity has long mandated broad exceptions to the clear, sweeping language to be found on the parchment. All the current outrage on these issues is very short-memoried.

Posted by Mike | June 27, 2008 7:10 PM

Your premise is wrong, Scalia never agrees to "hollowing out the Second Amendment" but he acknolwedges "longstanding prohibitions" which "nothing in our opinion should be taken to cast doubt."

That is mightily different than some DC politicians deciding to regulate the presence of hand guns within a home, as different as the right to burn a draft card but not a military recruitment office under the first amendment. I grant that you have to be a lawyer to see the difference, but its a stark one.

Posted by Bababooey | June 27, 2008 7:53 PM

To say this is judicial activism rings false. This is exactly what judges should do: decide the Constitutional aspects of a law. A right was not granted or created here, but reaffirmed.

Activism would have been the court creating a right out of whole cloth, such as the right for gays to marry, or a woman to abort a child, where no such right exists, and hence should be left to the people to decide.

Posted by Paratus | June 28, 2008 12:51 AM

What are you missing? I suspect you've simply over-read the opinion, as many wishful commentators have in the past few days.

Scalia does say 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, 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." DC v Heller, 554 US __ 2008.

I suspect that, over time, this will be seen simply as a hallmark of Robert's approach: deciding cases narrowly and on the facts presented. Scalia's comment above may very well become useless dicta as future courts apply the real meat of his opinion to reconsider the wide range of local, state and federal laws that infringe on what is now clearly an enumerated and individual right. The Court, rightly so, wishes this to be an orderly process - not a wholesale elimination of a large body of law by the stroke of one opinion.

Consider instead, "The very enumeration of the right takes out of the hands of the government - even the Third Branch of Government - the power to decide on a case-by-case basis whether the right is really worth insisting upon... Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or... even future judges think that scope too broad." Id.

Posted by Glen | June 29, 2008 6:58 PM

So I take it you think that the Bill of Rights is not fully incorporated?

Fully incorporating a constitutional right is not the same thing as making that right absolute. The DC ordinance in question did not take away the right of Washingtonians to individually bear arms. Long guns were legal in DC pre Heller. The DC ordinance merely banned those particularly mobile and concealable firearms known as hand guns.

Strict constructionism my ass.

Posted by Charlton Hestonson | June 29, 2008 7:54 PM

Paratus, just to keep the issue narrow for a moment, what did the people not decide when they passed a law that did not specifically reserve marriage for heterosexuals? it seems to me they decided perfectly reasonably and the courts are ruling appropriately.

if the people want to change the legal basis for marriage, the people are welcome to do so, but until they do, there is no judicial activism is reading the plain language and treating it as such and not as a marker for "everyone knows we really mean only for heterosexuals."

Posted by howard | June 30, 2008 2:11 PM

Thanks for the post

Posted by meeliacaumoush | August 2, 2008 10:02 PM