Two years ago, in District of Columbia v. Heller, the Supreme Court took the unprecedented step of ruling that the Second Amendment guarantee of the right to bear arms was an individual right rather than a right tied to a “well-regulated militia.” Today, in McDonald v. City of Chicago, it ruled 5-4 that state and local governments are as bound by that interpretation as the federal government, a step that greatly restricts their ability to legislate in that arena.
Symbolically, the ruling is a big victory for the gun lobby. But its practical effect is another matter. A decade or two ago, when hot political battles were still being fought over gun control, rulings such as these would have had significant impact. But the truth is that the single-minded passion of gun-rights advocates long routed their opponents in the political arena, making gun-control arguments in the political arena all but moot.
In that sense, the Supreme Court is merely following the election returns, as Mr. Dooley long ago noted.
But it will be interesting to see how the issue plays out. In Heller, the court wrote repeatedly of the constitutional right to self-defense and singled out handguns as “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family.” Heller also noted that the right to bear arms is NOT “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
In addition, Heller expressly did not apply to “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.”
As Justice Stephen Breyer notes in his dissent, the rulings in Heller and McDonald strip power from state and local governments and place it in the hands not just of the federal government, but of the federal courts. In its centralization of power, its rejection of precedent and and its investment of legislative power in the courts, the court has taken a decidedly activist role.
In fact, Breyer notes, it requires judges, not legislatures, to now address a variety of questions regarding the costs and benefits of various firearms restrictions:
“Does the right to possess weapons for self-defense extend outside the home? To the car? To work? What sort of guns are necessary for self-defense? Handguns? Rifles? Semiautomatic weapons? When is a gun semi-automatic? Where are different kinds of weapons likely needed? Does time of day matter? Does the presence of a child in the house matter? Does the presence of a convicted felon in the house matter? Do police need special rules permitting patdowns designed to find guns? When do registration requirements become severe to the point that they amount to an unconstitutional ban? Who can possess guns and of what kind? Aliens? Prior drug offenders? Prior alcohol abusers? How would the right (to self-defense) interact with a state or local government’s ability to take special measures during, say, national security emergencies?”
“Legislators,” Breyer notes, “are able to ‘amass the stuff of actual experience and cull conclusions from it.’ United States v. Gainey, 380 U. S. 63, 67 (1965). They are far better suited than judges to uncover facts and to understand their relevance. And legislators, unlike Article III judges, can be held democratically responsible for their empirically based and value-laden conclusions.”
The Supreme Court — the ostensibly conservative, anti-activist, pro-states’ rights Roberts court — has taken those decisions out of the hands of legislatures and city councils and placed them in the hands of its colleagues in the federal judiciary.