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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.
If the founders had limited themselves to the final 14 words, the amendment would have been an unambiguous declaration of the right to possess firearms. But they didn’t, and it isn’t. The amendment was intended to protect the authority of the states to organize militias. The inartful wording has left the amendment open to public debate for more than 200 years. But in its last major decision on gun rights, in 1939, the U.S. Supreme Court unanimously found that that was the correct interpretation.
On Tuesday, five members of the court edited the 2nd Amendment. In essence, they said: Scratch the preamble, only 14 words count.
In doing so, they have curtailed the power of the legislatures and the city councils to protect their citizens.
The majority opinion in the 5-4 decision to overturn a Washington, D.C., ban on handgun possession goes to great lengths to parse the words of the 2nd Amendment. The opinion, written by Justice Antonin Scalia, spends 11½ pages just on the meaning of the words “keep and bear arms.”
But as Justice John Paul Stevens wrote in a compelling dissent, the five justices in the majority found no new evidence that the 2nd Amendment was intended to limit the power of government to regulate the use of firearms. They found no new evidence to overturn decades of court precedent.
They have claimed, Stevens wrote, “a far more active judicial role in making vitally important national policy decisions than was envisioned at any time in the 18th, 19th, or 20th Centuries.”
It’s a relief that the majority didn’t go further in its policymaking on gun control.
The majority opinion states that the D.C. handgun ban and a requirement for trigger locks violate the 2nd Amendment. By virtue of this decision, Chicago’s 1982 ban on handguns is not likely to survive a court challenge. A lawsuit seeking to overturn the Chicago ordinance was filed on Thursday by the Illinois State Rifle Association.
We can argue about the effectiveness of municipal handgun bans such as those in Washington and Chicago. They have, at best, had limited impact. People don’t have to go far beyond the city borders to buy a weapon that’s prohibited within the city.
But neither are these laws overly restrictive. Citizens have had the right to protect themselves in their homes with other weapons, such as shotguns.
Some view this court decision as an affirmation of individual rights. But the damage in this ruling is that it takes a significant public policy issue out of the hands of citizens. The people of Washington no longer have the authority to decide that, as a matter of public safety, they will prohibit handgun possession within their borders.
Chicago and the nation saw a decline in gun violence over the last decade or so, but recent news has been ominous. The murder rate in Chicago has risen 13 percent this year. Guns are still the weapon of choice for mayhem in the U.S. About 68 percent of all murders in 2006 were committed with a firearm, according to the U.S. Department of Justice.
Repeal the 2nd Amendment? Yes, it’s an anachronism.
We won’t repeal the amendment, but at least we can have that debate.
Want to debate whether crime-staggered cities should prohibit the possession of handguns? The Supreme Court has just said, “forget about it.”
The majority, though, did state that the right under the 2nd Amendment “is not unlimited.” So what does that mean? The majority left room for state and local governments to restrict the carrying of concealed weapons in public, to prohibit weapons in “sensitive places such as schools and government buildings,” and to regulate the sale of firearms. The majority allowed room for the prohibition of “dangerous and unusual weapons.” It did not stipulate what weapons are not “dangerous.”
Lower courts are going to be mighty busy figuring out all of this.
