Last week, the federal court of appeals in Washington, D.C., issued the most important Second Amendment ruling in the last half-century. Striking down key provisions of the 1976 District of Columbia law that prohibited residents from owning handguns (with the exception of guards, police officers, and gun owners who had registered their weapons before the law took effect), the court's ruling will undoubtedly spur a fresh series of constitutional assaults on gun control legislation.
The text of the Second Amendment says: "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." What does this mean? Because the text protects "the right of the people to keep and bear Arms," it could well be interpreted to include an individual right to own guns. For decades, the National Rifle Association and its allies have argued in favor of this interpretation, and responsible historians have provided support.
But other responsible historians insist that the Second Amendment had a far more limited purpose, which was to prevent the national government from disarming state militias. After all, the Second Amendment contains an unusual preamble: "A well regulated Militia, being necessary to the security of a free State." The preamble suggests the possibility that "the right of the people" is essentially the right of members of state militias to keep and bear arms.
If the Second Amendment is understood in these terms, it did not create individual rights, but it nonetheless had an important goal. That goal was to ensure that the national government, feared by many members of the Founding generation, could be checked by state governments equipped with their own military force.
In the last decades, almost all federal courts have ruled that the Second Amendment does not protect an individual's right to own firearms. In these rulings, the lower courts said that they were following a 1939 decision by the Supreme Court, which upheld a congressional restriction on the transportation of shotguns. The Court ruled that the possession of a shotgun did not have a "reasonable relationship to the preservation or efficiency of a well-regulated militia." The Court doubted that a shotgun "is any part of the ordinary military equipment or that its use could contribute to the common defense." With these words, the Court seemed to suggest that restrictions on private use of guns would not violate the Second Amendment so long as those restrictions did not compromise the goal of preserving state militias.
But, in its dramatic ruling last week, the court of appeals (consisting entirely of Republican appointees) emphatically rejected that position and squarely endorsed the view that the Second Amendment protects the individual right to use and possess guns. The court acknowledged that modern handguns are more advanced than Founding-era weapons. But it insisted that they are "lineal descendents," and it ruled that if guns are used for self-defense and hunting, their possession is protected by the Constitution.
Despite its novelty, the court's analysis can claim unquestionable support in the text and background of the Constitution; distinguished historians are on both sides of the debate. But, in the federal courts, the issue has long been settled. Well over 200 years since the Founding, does it make any sense for courts to decide, for the first time, that they will start to oversee the legitimacy of gun control laws? If federal courts are now going to invoke the Second Amendment to evaluate the reasonableness of such laws, we will soon witness a series of rulings that will make Roe v. Wade look like a pretty modest exercise.
The court's decision raises even larger issues. Some conservatives have asked federal courts to display more caution and humility; they seek to limit the judges' role. More ambitious conservatives want the judiciary to promote the goals of their political movement. They applaud when judges strike down not only gun control laws, but also affirmative action programs, environmental regulations, restrictions on commercial advertising, and much more. They are entirely comfortable when courts exercise their authority against the elected branches--especially, perhaps, when those branches are in Democratic hands.
It is likely that, for the first time in many decades, the Supreme Court will be entering the Second Amendment fray. Its conclusions will tell us a great deal about the future of gun control--and also about the justices' conception of their own place in American democracy.
By Cass R. Sunstein