Second Amendment: Unlocked And Loaded

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Stripped of all its legalese and deep bows to shaky precedent (the drafters of the Second Amendment being no less cowardly about ratifying mealy-mouthed laws than their modern-day counterparts), the Supreme Court's big gun ruling Thursday pretty much tracks popular sentiment. In this sense, if perhaps no other, the ruling on its face, and perhaps for today only, is far less controversial than most people expected it would be.

A majority of Americans strongly believe that they have a right to possess a gun in their home for individual self-defense. Presto! Justice Antonin Scalia and the four other most conservative members of the Court have just granted them their long-hoped-for wish. But a majority of Americans also strongly believe that there should be sensible restrictions upon the use of guns in our society. Voila! The Court's majority also recognized the validity of certain reasonable limitations upon the right to bear arms. Everyone's happy, right? Wrong.

Wrong -- because the Court's recognition of an individual Second Amendment right necessarily leaves open central questions about how far that right goes when it butts up against government regulation (state and federal both). In true Supreme Court fashion, the Justices weren't willing to answer those questions in the abstract. That's why Thursday's gateway ruling marks just a beginning, not nearly an end, to Second Amendment litigation. Indeed, just a few hours after the Justices handed down their decision, the National Rifle Association was promising a nationwide campaign to go after gun regulations.

We now will see dozens of challenges to existing gun laws, all designed to challenge the outer boundaries of the District of Columbia v. Heller ruling. And we quite likely will soon see another Supreme Court ruling on the topic. It's inevitable. Some gun laws will be upheld - no judge in America is going to allow guns in schools or allow felons to buy AK-47s. And some gun laws, especially those in major cities where gun violence is worst, will fail. In some cases, local legislators now will try to change their laws proactively to fortify them against the challenges to come.

Think of the Heller ruling as a pivot then between all that has come before - Second Amendment jurisprudence without an announced individual right to bear arms - and all that is to come - Second Amendment law with that right recognized. The dozens of lawsuits now to come are going to fill out the vast empty space of this new field. In fact, the rush to court now by the NRA will be akin to the Oklahoma land rush. Fire up the wagons! Stake your claims! Locate those individuals in Chicago or in San Francisco who feel they've been wronged!

This brave new world of gun law is precisely what the Court's majority had in mind when it selected this case, among the many Second Amendment cases that routinely had come before it, for review. It was a set-up from the beginning. One of the most stringent handgun bans in America naturally created one of the easiest targets for the first-ever formal recognition of an individual right to bear arms. The expanse of the District of Columbia's ban was a figurative door through which the Court's narrow majority was able to squeeze through. And, perhaps just as surely, the language of Justice Scalia's majority decision also created one of the most striking role-reversals in modern court history.

This time, for a change, it was the Court's liberal wing accusing the Court's conservative majority of "judicial policy-making." This time it was the Left accusing the Right of taking away legislative prerogatives (in the form of gun laws). This time it was Stevens and Ginsburg and Company accusing Roberts and Alito and Company of imposing their own personal views, and faulty legal logic, to generate an outcome they wished. The "ends justify the means" is the stinky trout usually thrown from right to left. This time, it came from left to right - proof that neither side has a monopoly on hypocrisy.

And neither side has a monopoly on sonorous and ultimately unpersuasive citations to legal history. Both Justice Scalia's majority decision, and Justice John Paul Stevens long and strong dissent, devoted a great deal of time and space to divining the intent of the gasbag pols (oops, I meant to write "Founding Fathers" there) who drafted the Second Amendment, replete with its comma splice and its atrocious grammar and its references to "militias" and to "people" and gun rights not being "infringed." And the bottom line from this review? Surprise, surprise, it's a toss-up.

Thursday's landmark ruling may officially declare for legal and political purposes what the Second Amendment means but that declaration is much more about style than substance. The truly tragic fact is that, despite this massive litigation, with its thousands of pages of legal briefs submitted by every Tom, Dick, Harry and Jane in the legal world, no one is closer to knowing for sure whether the craftsmen of the Second Amendment truly intended for it to include an individual gun right or not. Five smart judges say yes. Four smart judges say no. Millions of regular Americans say yes. Millions of other regular Americans say no.

I'm not complaining about this, mind you. There are plenty of other examples in the Constitution and Bill of Rights where the 18th Century drafters left to future generations the task of sorting out the details. And this is where we find ourselves today. Thanks to a single vote on the Supreme Court, the details of the Second Amendment's individual gun right now are about to be sorted out, over a period of years, in cases from coast to coast and in between. We know what the gun control landscape looks like on the eve of this new chapter; what it looks like at the end is anyone's guess.
  • Andrew Cohen

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