The Second Amendment case: How far does it go?
The decision in District of Columbia v. Heller has settled the fundamental issue involving gun control, which is whether the Second Amendment limits the right to possess firearms to those serving in militias or whether it is an individual right. I never thought that the former argument would prevail. It is clever but not persuasive. The text of the amendment reads, “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” Common sense suggests that many eighteenth century Americans owned firearms and used them for hunting and self-defense. America was a frontier nation. People on the frontier owned guns. Justice Scalia, writing for the 5-4 majority, amassed a litany of historical evidence dating back to England. The two key elements of the Court’s holding are: The Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self defense within the home. The Amendment’s prefatory clause announces a purpose but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. The question now — and it is sure to be litigated — is whether the decision allows government to impose any restrictions on gun ownership. Anti-gun control forces will argue that the Second Amendment should be imposed upon states and local government through the Due Process Clause, as other constitutional rights have been. The majority opinion did not address the due process issue. But it did discuss the scope of the right to keep and bear arms: Like most rights, the right secured by the Second Amendment is not unlimited….[C]ommentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purposes. For example, the majority of 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues….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 firearms. We also recognize another important limitation on the right to keep and carry arms….[T]he sorts of weapons protected [under a previous decision] 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.” Finally, the majority attempts to show its sensitive side: 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 the problem, including some measures regulating handguns. [The opinion here refers to the language cited above.] 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 the 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. Exactly what state and local governments can do is unclear. The Court tries to get by with saying that government can do anything except impose an absolute prohibition on handguns held and used for self-defense in the home. But gun-control advocates are not going to be satisfied with that. What about gun registration laws? What about mandatory gun training classes? What about possession of automatic weapons? What about limitations on carrying handguns outside the home? All of these and more are going to be challenged.