Commentary

Second Amendment - No Longer Embarrassing

“The right of the people to keep and bear Arms shall not be infringed.” That’s the operative clause of the Second Amendment - nearly erased from the Constitution in 1939 by a muddled and confusing Supreme Court opinion in United States v. Miller. Last week, apparently embarrassed by seven decades without a coherent explanation of the right celebrated during the Framing era as “the true palladium of liberty,” the court rediscovered the Second Amendment. More than five years after six Washington residents challenged the city’s 32-year-old ban on all functional firearms in the home, the court held in District of Columbia v. Heller that the gun ban is unconstitutional.

Indeed it is. For starters, no handgun could be registered in D.C. Even pistols registered prior to the 1976 ban could not be carried from room to room in the home without a license, which was unobtainable. Moreover, all firearms in the home, including rifles and shotguns, had to be unloaded and either disassembled or bound by a trigger lock. In effect, no one in the District could possess a functional firearm in his or her own residence. And the law applied not just to “unfit” persons like felons, minors or the mentally incompetent, but across-the-board to ordinary, honest, responsible citizens.

[I]t’s also fair to say that the court’s razor-thin majority conveys a crucial message: Judicial nominations matter.”

D.C. Mayor Adrian M. Fenty raised two principal arguments in support of the city’s ban. First, the Second Amendment ensures only that members of state militias are properly armed, not that private citizens can have guns for self-defense and other personal uses. Second, even if the Second Amendment protects private ownership of firearms for non-militia purposes, D.C.’s legislature can constitutionally ban all handguns if it determines, for example, that rifles and shotguns in the home are a reasonable alternative means of self defense. The court rejected both arguments.

Essentially, wrote Justice Antonin Scalia for a 5-4 majority, the militia clause announces one purpose of the Second Amendment, but does not limit or expand the right to keep and bear arms expressly stated in the operative clause. Nor does the court’s prior precedent - United States v. Miller (1939) - say otherwise. It establishes simply that some weapons - e.g., a sawed-off shotgun - are not protected unless they can be shown to have military utility and be in common use. Moreover, declared Scalia, the District may not categorically ban “an entire class of ‘arms’ that Americans overwhelmingly choose for the lawful purpose of self-defense.” Alternative weapons, such as long guns, have numerous disadvantages and must, under a provision of D.C. law, be kept unloaded and either disassembled or trigger-locked. That provision does not contain an exception for self-defense.

In his dissenting opinion, Justice John Paul Stevens not only quarreled with Justice Scalia’s interpretation of historical events but he also implied that Scalia had abandoned true judicial conservatism by dragging the court into the “political thicket” of gun control. “Judicial restraint would be far wiser,” wrote Stevens, than mediating a political process that is “working exactly as it should.” That’s quite an astonishing statement coming from Justice Stevens - the same justice who had no such reservations just one day earlier when he voted to invalidate Louisiana’s death penalty for child rape and substitute an outright ban on capital punishment for any crime that isn’t fatal to its victim.

Justice Stephen Breyer, also dissenting in Heller, proffered this extraordinary statement: “The decision threatens to throw into doubt the constitutionality of gun laws throughout the United States.” Nonsense. Forty-four states have constitutional provisions protecting an individual right to keep and bear arms. Legislatures in all 50 states have rejected bans on private handgun ownership. Concealed carry is permitted, with varying degrees of administrative discretion, in all states except Wisconsin and Illinois. Those laws would have remained on the books no matter what the Supreme Court had decided in Heller. The major impact of the court’s opinion will be felt, not “throughout the United States,” but in the cities and other political subdivisions that have enacted draconian gun laws under delegated power from state governments.

Heller is merely the opening salvo in a series of litigations that will ultimately resolve what weapons and persons can be regulated and what restrictions are permissible. Near term, the Court will also have to decide whether Second Amendment rights can be enforced against state and local governments. Despite those remaining hurdles, it’s fair to say that the court’s blockbuster decision makes the prospects for reviving the original meaning of the Second Amendment substantially brighter. And given the unfolding presidential contest, it’s also fair to say that the court’s razor-thin majority conveys a crucial message: Judicial nominations matter.

Robert A. Levy is senior fellow in constitutional studies, co-counsel to Heller, and co-author of The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.