There Will Be Guns
This column was written by Benjamin Wittes
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 America was always a fantasy. Policymakers do not make a habit of pushing the constitutional lines in making gun policy. The major restraints holding them back are political, not judicial, and a revived Second Amendment won't change that.
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 Washington, D.C., Americans are allowed to own handguns; in many places, the law permits them to carry them concealed. Yes, restrictions exist. But the impact of 200 years of judicial negligence has not been the atrophying of the right to own weapons. For most non-criminal Americans, packing heat remains an option, albeit one subject to modest government regulation. In fact, if the Supreme Court goes the route implied by this week's oral argument, the justices would largely be codifying and ratifying what is already a national norm that they had little to do with shaping.
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 Washington D.C., in other words, a revitalized Second Amendment would largely forbid what nobody was seriously contemplating anyway: bans on common weapons for the recreational and self-protective uses of law-abiding people.
But inside of Washington--my hometown and a city with a strong local consensus in favor of its handgun ban--Heller's impact could be big. It remains to be seen whether the Supreme Court will immediately doom the D.C. law or whether it will, as Clement has urged, touch off a new round of litigation over whether the ban constitutes a reasonable regulation of whatever individual right the justices recognize. Sooner or later, however, the D.C. handgun ban seems likely to fall. And if and when that happens, it will be a big change of policy for the city--and an unpopular one.
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. Washington's streets are already awash in firearms, and it's hard to believe the introduction of a comparatively small number of highly regulated weapons among those residents without criminal records will measurably impact the number of murders in either direction.
The big change, rather, is a spiritual one. Washington has been the American jurisdiction most willing to dream of a gun-free society. For Washington, a Second Amendment that means something would end an existing experiment. It would impose a national norm on a dissenting local political culture. I'd be more sentimental about the end of that experiment if its results over three decades had been more encouraging. Still, whenever a right goes from a norm to a matter of actionable law--something the courts make sure "shall not be infringed"--it does so at some cost to popular sovereignty, a cost that Washington residents seem fated in this instance to bear.
By Benjamin Wittes
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