Monday, June 30, 2008
Editorial: Gun-law ruling reminder of what’s at stake this fall
Law schools looking to get their graduates into growth fields should consider adding courses in gun law.
In a 5-4 decision overturning Washington, D.C.'s near absolute ban on handguns, the Supreme Court settled one long running - it last visited the Second Amendment in 1939 - constitutional dispute, but it opened the way to a host of court suits over what kind of state and local gun regulation is constitutionally permissible.
The court effectively decoupled the first clause of the Second Amendment about the necessity of a well-regulated militia and what remained was unmistakably clear, as indeed the Framers likely intended: "the right of the people to keep and bear Arms shall not be infringed."
Owning a gun for self-defense is now a right on a level with the other guarantees in the Constitution's Bill of Rights. The National Rifle Association almost immediately announced plans to file suit against similar bans in Chicago, San Francisco, New York, Philadelphia and Detroit.
While the 5-4 ruling was broad in its constitutional reading, the instant ruling applied only to bans on standard firearms - handguns, rifles, shotguns - kept in the home for self-defense and to another provision of the D.C. law that the court also overturned that long guns be kept inoperable.
Perhaps anticipating a flood of gun litigation, Scalia indicated that the high court would find a wide range of gun regulation, including registration, acceptable. For example, he specifically and wisely endorsed laws barring felons and the mentally ill from possessing firearms and bans on firearms in "sensitive places" like schools and government buildings. (One of the strictest bans, the ruling might have noted, is for the Capitol Hill complex that includes the court.)
But some of the language would seem to invite litigation. Scalia said it would be acceptable to ban "dangerous and unusual weapons." Perhaps that was to forestall the claim by gun opponents that a narrow reading of the Second Amendment would allow people to walk around carrying bazookas and machine guns. But it also seems to open the door to another fight over banning assault weapons.
Years from now, when all the legal smoke clears, we may find that the practical effect of this ruling only applied to a handful of large urban areas. But the bigger concern is that the court came within one vote - just one vote - of essentially nullifying the Second Amendment, which the founding fathers considered second in importance to only the First Amendment that guarantees free speech. Had swing Justice Anthony Kennedy swung the other way, that Amendment would henceforth be interpreted to mean that gun ownership was a right not conferred to individuals, but a collective right belonging only to those who belong to a "state militia" (i.e. National Guard or Reserve unit).
The fact that the fate of such a crucial Amendment hung in the balance so precariously is one more reminder of what's at stake in this fall's presidential race, as the next president may well wind up nominating three justices during his term. We thus would advise readers to choose wisely when they go to the polls.
(If anyone knows where I can sign up to participate in a "well regulated militia", please leave a comment! I want to make sure that my constitutional right is protected before some pansy is nominated by whom ever is elected this Fall 2008 to the Supreme Court and tries to take my guns away from me! Have people lost all common sense!? VN8)