BY deciding yesterday to hear the District of Columbia’s appeal of the federal court ruling that overturned DC’s gun ban, the Supreme Court has ensured that gun control and gun rights will play a major role in the coming election – and perhaps in the high court’s future, too.
The Second Amendment to the Constitution provides that “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.” Does that prevent the federal government (of which DC’s government is a part) from banning private ownership of firearms, as the DC law essentially does?
This will be a hard case for the Supreme Court to duck. Cases involving state gun laws raise the question of whether the Second Amendment applies to the states. But, where every other US city is legally part of a state government, the district is a direct creature of the federal government. Other issues of legal standing that may have barred some plaintiffs have been overcome in this case, too. And, where many gun-control laws (like the Brady Act) merely limit gun ownership around the edges, the DC law is a pretty total ban.
But if it can’t duck, the court is basically left with just three options:
* It can find that the Second Amendment doesn’t really do anything – that it’s merely a relic of an older era. But that’s a rather dangerous approach: What other parts of the Constitution might be considered relics? And can a judicial approach that leaves a tenth of the Bill of Rights meaningless possibly be sound?
* It can find that the Second Amendment doesn’t grant individual rights, but only protects the right of states to arm their militias (or “state armies,” as some gun-control advocates put it). This would make the DC case go away, but at some cost: If states have a constitutional right, as against the federal government, to arm their militias as they see fit, then states that don’t like federal gun-control laws could just enroll every law-abiding citizen in the state militia and authorize those citizens to possess machine guns, tanks and other military gear.
Other consequences of “state armies” seem even more drastic. As Tom Lehrer put it:
We’ll try to stay serene and calm /
When Alabama gets the bomb.
* Finally, the court can find – in accordance with the views of law professors as diverse as Harvard’s Laurence Tribe and, well, me – that the Second Amendment supports an individual right on the part of law-abiding citizens to possess firearms of the sort that are in ordinary use. As with other rights, such as freedom of speech, this is subject to reasonable regulation that stops well short of a ban.
This last would be the least radical approach, as it’s consistent with public opinion (most Americans think the Second Amendment gives them a right to own a gun) and with the 40-plus states whose own constitutions already provide for a right to arms. It would probably be the easiest to implement, too, as federal courts could (to a degree at least) look to state law for some guidance on how to implement it.
Finding otherwise would be ticklish for the court in another way. In recent decades, the Supreme Court has found many rights that aren’t specifically spelled out in the Constitution – rights to things like abortion, contraception or sodomy. If the court now follows up by denying a right that does seem to be spelled out, it would put its own legitimacy in the public eye at grave risk.
Regardless, by taking this case, the court has ensured that the gun-rights issue will move to the forefront this election season, at both the presidential and congressional levels. This is probably bad for Democrats, given that most Americans believe they have some sort of right to arms under the Constitution.
It’s also probably bad for Rudy Giuliani and Mitt Romney, who have generally been less supportive of gun rights than the other GOP contenders. But maybe Hillary Clinton will prove flexible: Bill Clinton said that the gun issue cost the Democrats control of Congress in 1994, and Hillary no doubt remembers that.
Glenn Harlan Reynolds is Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee and author of “A Critical Guide to the Second Amendment.”