On the one hand, I fully understand that the decision in District of Columbia, et al. v. Heller in a big deal insofar as it confirms via the Supreme Court, for the first time, the notion that US citizens have a constitutional right to own a firearm. As such it puts to rest the notion that such ownership might have to be connected with the “well regulated militia” noted in the Second Amendment. I say “might” because while there has been a legal theory that the Second Amendment was specifically speaking of only the right to keep and bear arms in the context of a citizen militia, in point of fact, the laws of the land have rarely functioned in that way. Indeed, all SCOTUS did was affirm that the opinion that the vast majority of Americans hold is, in fact, correct (legally speaking) (via Gallup):
A clear majority of the U.S. public — 73% — believes the Second Amendment to the Constitution guarantees the rights of Americans to own guns. And almost 7 out of 10 Americans are opposed to a law that would make the possession of a handgun illegal, except by the police.
So while this ruling will clearly affect the DC law banning handguns,1 it is unclear to me that it will actually have that much of a practical effect on the vast majority of the citizens of the US or of the laws regulating certain types of guns. As such, it is a landmark case that will discussed for some decades, yet on the other it seems to me that it really was more of a confirmation of the basic status quo than it was a radical shift in the way the US deals with guns.
Along those lines I would note the following (Via the NYT): Justices Rule for Individual Gun Rights
Despite the decision’s enormous symbolic significance, it was far from clear that it actually posed much of a threat to the most common types of gun regulations. Justice Scalia’s opinion applied explicitly only to “the right of law-abiding, responsible citizens to use arms in defense of hearth and home,” and it included a number of significant qualifications.
“Nothing in our opinion,” Justice Scalia said, “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.”
The opinion also said that prohibitions on carrying concealed weapons would be upheld, and suggested somewhat less explicitly that the right to personal possession did not apply to “dangerous and unusual weapons” that are not typically used for self-defense or recreation.
So, aside from changing the law in DC (and a few other places), is a post-Heller America all that different from a pre-Heller America? I am not so sure.
In other words, while there has been an ongoing philosophical debate about whether the Second Amendment limited gun ownership to linkage to a militia, in a practical policy sense, this has not been the way we have behaved. On balance (with clear exceptions, such as DC), we have lived in a legal context that has allowed us the right to keep and bear arms. The issue now, I suppose, is whether Heller will lead to a substantial reduction in gun regulation. Given the portions of Scalia’s opinion noted above, it does not seem to me that that will be the case.
Sphere: Related Content- Which, btw, didn’t mean that there weren’t any handguns in DC. [↩]
June 27th, 2008 at 8:03 am
It’s a foundation on which to build future gun rights efforts. Next up are the handgun bans in the Chicago area.
June 27th, 2008 at 8:12 am
[...] reading of the ruling matches my initial views from last night. Specifically he notes: Justice Scalia’s opinion, if one cuts through some of the bluster, is [...]
June 27th, 2008 at 8:22 am
@Boyd - I agree that it is significant and will affect some existing laws. However, I would argue that all it really did was confirm the status quo in most of the country.
June 27th, 2008 at 8:59 am
Oh, I’m not disagreeing that this will have no effect on the vast majority of people in the US; I’m merely pointing out where it will have an effect.
June 27th, 2008 at 8:59 am
Arthur Silber had a nice comment on that (from http://powerofnarrative.blogspot.com/2008/06/grateful-people-in-their-individual-joy.html):
“The Fourth Amendment right to be free from unreasonable searches and seizures is an individual right. And we know what that’s worth. Yeah, baby.”