Guns and the Supreme Court


It was unsurprising, and in practical terms maybe not very important, that the Supreme Court struck down the District of Columbia's blanket ban on handguns. In yet another 5-4 decision (the four conservatives plus Justice Kennedy against the four liberals), it ruled that the Second Amendment enshrines the right of individuals--as opposed to individuals serving as part of a militia--to keep and bear arms. It also affirmed that this right is qualified, and that all manner of (unspecified) restrictions on gun ownership and use are constitutional. There will have to be further litigation to test the limits, but in most of the country the ruling will make no difference. The DC law failed because it was an outright ban on handguns, including weapons kept in the home for self-defense, and (the majority said) upholding this law would have meant rendering the Second Amendment defunct.

This is how Justice Scalia, writing for the majority, summed it up:

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 that problem, including some measures regulating handguns... 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 our 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.

Actually I have no objection to my neighbors in DC defending their homes with handguns. I'm all for making burglars anxious. But is this ruling as ruthlessly logical as it purports to be?

The Second Amendment has already been substantially hollowed out--and the Court says it has no problem with that, only with taking it to DC's extreme of outright prohibition. For the sake of argument, then, let us suppose--as Scalia invites us to--that the Second Amendment is indeed outmoded, for the somewhat plausible reasons he mentions. Let us suppose, again for the sake of argument, that hollowing out the Second Amendment all the way to nothing would save hundreds of lives a year. And further suppose that public opinion in DC was solidly behind DC's law. Even if all that were true, the majority says it would not be the Court's job to pronounce the Second Amendment extinct--to do that, Congress and the states would have to climb the mountain of repealing it.

The baffling implication is that the Court can properly take the law all the way from "shall not be infringed" to the tight (and apparently constitutional) controls now exercised in many jurisdictions, but that the last small step to prohibition, however beneficial to the locality concerned, is beyond its competence and demands extraordinary if not impossible political exertions. What am I missing?

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Clive Crook is a senior editor of The Atlantic and a columnist for Bloomberg View. He was the Washington columnist for the Financial Times, and before that worked at The Economist for more than 20 years, including 11 years as deputy editor. Crook writes about the intersection of politics and economics. More

Crook writes about the intersection of politics and economics.

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