One thing seemed clear from Tuesday's Supreme Court oral arguments in District of Columbia v. Heller: The justices are poised to recognize that the Second Amendment confers on individual Americans the right to own guns. The court's conservatives--save Justice Clarence Thomas, who maintained his customary silence at arguments--evinced little doubt of this proposition. And even Justice Stephen Breyer seemed open to the possibility that the amendment's right to "keep and bear arms" isn't just about militias--though he's inclined to uphold the D.C. handgun ban anyway. After more than two centuries of judicial negligence and intellectual head-scratching, the Second Amendment seems preponderantly likely to mean something. All of which makes Heller a kind of watershed in the making.
Or maybe not.
For something else became clear at oral argument--something that actually has been coming into focus since a lower court tossed out Washington's handgun ban and the briefs began winding their way to the justices: Any right to keep and bear arms that the court recognizes is not going to do all that much. Specifically, it won't preclude the sort of reasonable regulation of firearms ownership that makes up most existing gun control laws.
So what will this landmark decision actually change?
Undeniably, a decision recognizing an individual right to gun ownership will put a limit on how far gun control can go. Those who dream of a gun-free society will have to dream of ratifying a new constitutional amendment; they will no longer be able to ignore that embarrassing provision of the Bill of Rights that they have, for so long, been able to argue does not mean what it so plainly seems to say. A decision recognizing the Second Amendment as an individual right will also force authorities at all layers of government to justify before the courts the benefits of crime control and public safety measures that restrict guns against a countervailing interest. And the courts will have to balance the safety benefits against a recognized right that citizens will, citing a Supreme Court opinion, claim is being impinged.
But a disarmed
Americans have this notion of the courts as the guarantors of the Bill of Rights. But in the case of gun rights, this has never been true. The Supreme Court has no history of enforcing the Second Amendment. Despite the prevalence of guns in American society, a vibrant gun trade, a lot of gun crime, and routine prosecutions of those crimes over decades, the court has developed nothing remotely resembling a developed Second Amendment jurisprudence. We still argue about the text and history of the amendment because, with the exception of a cryptic 1939 opinion, there's essentially no case law interpreting it.
Yet gun rights have not shriveled. To the contrary, they
have fared remarkably well in the absence of judicial enforcement. Outside of
Gun rights have remained a part of our national consciousness--and operative law--because of political pressure from an engaged constituency willing to fight for them legislatively and at the ballot box. The strength of the gun lobby made Second Amendment rights untouchable politically even when the judicial climate seemed most tolerant of gun control. The lesson is that once the people internalize a right as fundamental, it's hard to take it away, even if the courts ignore the issue. The history of gun rights in American should encourage, say, abortion rights activists who fear judicial abandonment.
But the irony of the gun owners' success is that any new
judicial solicitude for the Second Amendment has limited capacity to give them
more than they have already taken for themselves through the democratic
process. For all but the hardest-core gun lovers, prudence and public safety
ultimately limit libertarianism--and the justices don't seem inclined to dive
off a cliff and read the amendment so as to permit individual ownership of
upper-end military hardware. That seemed almost as clear at arguments as the
court's direction on the question of whether the Second Amendment protects an
individual right. A lawyer for those challenging the ban acknowledged, for
example, that "of course" background checks for firearms purchases
would be constitutional. Justice Antonin Scalia told Solicitor General Paul
Clement, "I don't see why" the federal government would "have a
problem" sustaining its ban on machine guns if D.C.'s handgun ban fell.
All sides appeared comfortable with the idea that criminals would not receive
protection from the amendment. Outside of
But inside of
I suspect the change won't be hugely consequential in
practical terms. Crime will neither spike (as gun control advocates fear) nor
plummet (as the gun rights crowd hopes) as a result.
The big change, rather, is a spiritual one.
Benjamin Wittes is a Fellow and Research Director in Public Law at the Brookings Institution and a member of the Hoover Institution Task Force on National Security and Law.
By Benjamin Wittes