I must admit I’m a bit surprised to see the Supreme Court overturning the handgun ban (full ruling – PDF). I thought the court would have to take the position that gun ownership may be a right but one in which the state had enough of a compelling interest to regulate that bans like DC’s could stand. Any other decision would seem to suggest that the state couldn’t regulate weapons at all, thus overturning the 1934 automatic weapons ban and other restrictions on ownership of highly dangerous equipment for the hunting of today’s super deer.
However, as Ed Brayton discusses, they overturned the ban yet still found a middle-way. I tend to agree with Ed and with the typically-mercenary decision from Scalia. As usual Scalia is happy to pick up whatever legal tools are laying about that suit his fancy. Today it’s individual rights! Holy cow. I hope someone has the stones to throw that back in his face if gay marriage comes up in front the SCOTUS.
He writes for a 5-4 majority:
The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home.
And here is where he strikes out an acceptable middle-ground:
Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, concealed
weapons prohibitions have been upheld under the Amendment
or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.
The handgun ban and the trigger-lock requirement (as applied to
self-defense) violate the Second Amendment. The District’s total ban
on handgun possession in the home amounts to a prohibition on an
entire class of “arms” that Americans overwhelmingly choose for the
lawful purpose of self-defense.
This seems to serve all the purposes I would want in such a decision despite, in my mind, being the wrong one. The government still can tell people they can’t own a howitzer because it can’t reasonably be considered a lawful weapon for self defense. It also says that we can tell people they have to leave their guns at home if they want to, say, show up at a rally and protest (I really think it’s best our political speech activities don’t get confused with armed mobs carrying signs and intimidating each other) or go into a bar (EtOH and guns != good), school or courthouse.
And Ed I think brings up an excellent point I hope Scalia remembers for some future decisions:
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.”
I agree, I never thought the arguments against the 2nd amendment as a right of individuals were historically correct, or that we should willfully misinterpret it were valid. I would instead argue that time and technology had rendered the 2nd amendment invalid, and the court would have to expand and clarify what these rights mean in the light of 21st century technology. If they were unwilling to, then the constitution would have to be amended to deal with the reality that people simply should not be allowed to own whatever destructive technology suits their fancy. The constitution must be an evolving document to address the needs of society as the world and our values change.
Fortunately this decision acknowledges this, and I think strikes the ideal middle ground. Yes you can own a weapon. No it can’t be a grenade launcher. Yes it can be in your home. No you can’t carry it concealed or to the pro-choice rally or into a bar. Yes it can be loaded. No you can’t be a felon, and maybe we should do a background check on you first to make sure you’re not a drug dealer/wife beater/confirmed psychotic trying to impress Jodie Foster.
The NRA, being populated with psychotic jackasses, clearly failed to read the opinion. From the WaPo article:
Chris W. Cox, chief lobbyist for the National Rifle Association, called the ruling a “monumental decision” that will prompt more challenges and more debate. “This has put politicians on notice that this is a fundamental right,” he said. “It can’t be rationed. It can’t be unduly restricted on the whims of local officials.”
Actually Scalia’s decision said it can be rationed. It can also be restricted. Just not banned. Typical. Yet another example of how people on both sides of this debate have resorted to complete irrationality to justify their position.
I like this decision. How about you guys? The only problems I forsee are that: 1) more kids are likely going to get themselves shot when they find daddy/mommy’s gun, and 2) more spouses are going to be shot when domestic abuse escalates.
I doubt other than for those two that the crime rate will increase greatly as the other provisions allow for sensible regulations that will keep the hoods from carrying around handguns, and other cities like NYC have been very successful in reducing crime without resorting to similar bans. You just make the laws for handgun violations draconian, and make sure concealed-carry licenses require significant screening, training, and clearance.