Dispatches from the Creation Wars

Supreme Court Overturns Handgun Ban

As expected, the Supreme Court overturned the Washington D.C. handgun ban (see full ruling here). I actually figured it would be a 6-3 ruling but it was 5-4. I think the decision is a correct one. I think it is entirely clear that the founding fathers did intend the 2nd amendment to protect an individual right to own firearms and I think Justice Scalia’s analysis of why the prefatory clause does not change the meaning of the primary clause is both good history and good law.

It is important to note that this does not mean the end of all gun control measures. Declaring that there is a right to do X does not mean that there can be no reasonable restrictions on that right. The first amendment declaration of a right to free speech does not prevent laws prohibiting libel, slander or fraud, for example. The key question is not whether we have a given right, it is whether the government can show a compelling state interest in a particular restriction on that right. The majority opinion makes that clear:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

It may be objected that if weapons that are most useful in military service–M-16 rifles and the like–may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the right.

In other words, restrictions waiting periods, background checks, bans on civilian ownership of automatic weapons and various time, place and manner limitations are not overruled by this ruling, only laws that go so far as to create a blanket ban on the ownership of an entire class of small arms (handguns in this case). So this is not the end of gun control, only on the most draconian forms thereof. That strikes me as both perfectly reasonable and constitutionally correct.

Libertarian legal scholars are almost certainly going to agree with the ruling, but it should be noted that many prominent liberal legal scholars also agree with it, like Jack Balkin (and I totally agree with him that it’s important to point out that the only justice who agreed with us on in both the Boumediene ruling and this one is Justice Kennedy, who is, as I predicted, either sliding to the left or continuing his progression toward a more libertarian perspective) and Sandy Levinson. Even Alan Dershowitz, who reportedly advocates for the repeal of the second amendment, recognizes that the second amendment does recognize an individual right to own guns. Dershowitz famously remarked that those who make the common arguments against the second amendment are “courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don’t like.”

Dershowitz is correct and is shown to be so by this very ruling. Justice Stevens’ dissent makes a very dangerous argument in claiming that the phrase “the right of the people” refers to a collective right, not an individual one. That argument can easily be turned against a whole list of rights that liberals support and conservatives do not (in fact, can be turned far more easily against those rights because most of them are unenumerated, while the right to bear arms is specifically enumerated). Scalia effectively rebuts that argument

The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.

Why is this notable? Because one of the common arguments made by some conservatives against the liberal or libertarian interpretation of the 9th amendment is that when it says that there are unenumerated rights “retained by the people” that only means that the people, collectively, can decide, through their elected representatives, whether to allow or restrict such rights. It’s good to see Justice Scalia come down squarely against that absurd interpretation and quite disconcerting to see Justice Stevens endorse such special pleading.

And yes, I expect a great deal of opposition from some of my readers in response to this post.