June 27, 2008
2nd Amendment VICTORY!
WASHINGTON — The Supreme Court ruled that the Constitution guarantees individuals the right to keep handguns in the home, ending a debate about the Second Amendment’s 18th-century language while opening new battles over the politically charged issues of guns, crime and violence.
For the first time, the Supreme Court affirms the individual right to own guns. Gun deaths in the U.S. average 80 a day.
In a 5-4 opinion by Justice Antonin Scalia, the court struck down perhaps the nation’s toughest gun law, a 1976 District of Columbia ordinance that effectively bans handguns and required that rifles be disassembled or disabled by trigger locks in the home.
The decision stopped short of invalidating other local, state and federal gun regulations. The court also declined to hand legislators a blueprint for permissible gun regulations, acknowledging that the contours of the Second Amendment right, like other constitutional rights, will have to be mapped in litigation over the years to come.
Gun-rights advocates said their efforts will now swing toward challenging handgun bans in other cities, licensing laws and other statutes, such as zoning laws that ban gun stores. Among the issues that the court left to future litigation: whether the government can restrict other kinds of firearms besides handguns, specifically assault weapons, which have been the focus of numerous legislative battles at the state and federal level.
Paul Helmke, president of the Brady Campaign to Prevent Handgun Violence, one of the NRA’s chief opponents, said there could be a silver lining. Because the decision eliminates the specter of gun confiscation, advocates will be more willing to come to the table and discuss other gun-control issues.
Reflecting the passion and political importance of gun owners in an election that could be decided by independent voters, both presidential candidates immediately embraced the opinion — while shading their comments to emphasize different portions of the decision that appealed to their varying bases.
“Unlike the elitist view that believes Americans cling to guns out of bitterness, today’s ruling recognizes that gun ownership is a fundamental right — sacred, just as the right to free speech and assembly,” said Republican John McCain, seeking to join the gun enthusiasts’ celebration while warning that the decision still left open the chance that lawmakers could enact firearms regulations that stopped short of an outright ban. “This ruling does not mark the end of our struggle.”
His Democratic opponent, Barack Obama, was more restrained, saying that he “always believed that the Second Amendment protects the right of individuals to bear arms.” He emphasized that while the ruling protects a core right and “the D.C. gun ban went too far,” the protection “is not absolute and subject to reasonable regulations enacted by local communities to keep their streets safe.”
The Bush administration sought simultaneously to endorse the decision while assuring the public that existing federal gun regulations would remain intact.
“As a longstanding advocate of the rights of gun owners in America, I applaud the Supreme Court’s historic decision today confirming what has always been clear in the Constitution: the Second Amendment protects an individual right to keep and bear firearms,” the president said in a statement. He urged the District of Columbia to “swiftly move” to protect residents’ Second Amendment rights.
In its own statement, however, the Justice Department noted that the court said some restrictions on gun possession were permissible. The Justice Department said it “will continue to defend vigorously the constitutionality, under the Second Amendment, of all existing federal firearms laws.”
Pro-gun advocates and supporters of the District of Columbia’s firearms ban demonstrated outside the Supreme Court in March.
The court’s decision appears to strike a balance on gun ownership that reflects the views of the general public. A majority of Americans, 59%, said they oppose laws that ban the sale of handguns, according to an April poll conducted by the Pew Research Center. Yet a similar number, 58%, said it is more important to place controls on gun ownership versus the 37% that said it is more important to protect the right to own a gun.
Despite the opinion’s broad language, it was unclear if it would apply beyond the District of Columbia, the federal enclave whose unique status as the seat of government makes it part of no state. Although the district’s elected City Council operates autonomously under home-rule legislation approved by Congress, Washington’s municipal government is, as a constitutional matter, part of the federal government.
In a footnote, Justice Scalia noted that the issue known as “incorporation” — whether federal rights also are binding on state governments — wasn’t before the court, and observed that prior cases “reaffirmed that the Second Amendment applies only to the Federal Government.” In a 1997 book, he suggested views even more ominous for gun enthusiasts, writing that “properly understood, [the amendment] is no limitation upon arms control by the states.”
For Dick Heller, the security officer who challenged the ordinance, the court’s 5-4 ruling means district officials must issue him a license to keep a handgun in his Washington home. But it doesn’t necessarily allow him to buy another one in the district — or require the city to allow gun stores to operate within its boundaries. District officials, noting that the decades-old gun ban was widely popular within their city, pledged to do all they can to limit firearms in their jurisdiction.
Three activists from Virginia cheered the U.S. Supreme Court’s decision on the District of Columbia’s gun ban Thursday.
Elsewhere, cities with tough gun laws seized on the decision’s focus on Washington. Because it only concerns the District of Columbia, the ruling “does not apply to state and local governments,” said Benna Solomon, a deputy corporation counsel for Chicago. Chicago has one of the strictest gun regulations. City officials said they are expecting a challenge but would continue to enforce its handgun ban until ordered by a court to cease.
States with assault-weapons bans or licensing requirements for gun owners said that they felt confident their laws wouldn’t have to change as a result of the ruling. “The decision affirms the right of states to regulate gun ownership in order to preserve public safety,” said David Wald, a spokesman for New Jersey’s attorney general.
The village president of Morton Grove, Richard Krier, said that lawyers were reviewing the community’s ordinance following the decision and that he had “every intention” of complying with it.
Morton Grove has banned the possession of handguns in the homes of its 22,000 residents since 1981, as well as other dangerous weapons.
Delivered on the last day of the Supreme Court’s term, the 5-4 decision underscored the central place the court plays in the nation’s politics and culture as well as its law. For the third time this month, a major constitutional issue was decided by a single vote — that of Justice Anthony Kennedy, the maverick conservative who earlier sided with the court’s liberals to extend habeas corpus rights to Guantanamo detainees and bar the execution of child rapists. Today, he lined up on the right to hold that each household in Washington may arm itself with deadly weapons to fend off intruders.
Justice Scalia’s opinion was a 64-page tour from the obscure origins of gun rights in the fratricidal wars of 17th-century England through the violent struggles that defined America in its colonial revolt against the British crown, its division over slavery and the subsequent repression of freed blacks. It continued through to the modern era, where battles against foreign invasion and between internal factions have given way to urban crime.
“By the time of the founding, the right to have arms had become fundamental for English subjects,” Justice Scalia wrote, in an opinion joined by Chief Justice John Roberts and Justices Kennedy, Clarence Thomas and Samuel Alito. “The Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.”
The Second Amendment, in its entirety, reads: “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.”
That phrasing has led to countless debates over what precisely is being protected — a right of states and their citizens to organize militias, obviating the need for a standing army; a right of individuals to arm themselves, in case they may someday need to form a militia; or some other construction involving either or both personal and collective rights.
The Supreme Court last heard a Second Amendment case in 1939, when it upheld a federal ban on interstate transport of short-barreled shotguns. Since sawed-off shotguns had no “reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument,” the court found then. Ever since, most courts have seen the amendment as providing for weapons possession in connection with service in a militia, or its modern descendant, the state-run National Guard.
Justice Scalia, however, wrote that his opinion was consistent with the 1939 ruling, which he saw as holding only that not all guns were covered by the Second Amendment. Otherwise, he wrote, why would the court focus on “the character of the weapon rather than simply note that the two crooks were not militiamen?”
Gamut of Restrictions
The court’s liberal wing strenuously disagreed, offering its own historical construction that emphasized a gamut of restrictions on firearms over the same swath of time and asserting that the 1939 case, which itself examined precedents on weapons possession dating to colonial times, had settled the matter.
Yet the lead dissent, by Justice John Paul Stevens, did not dispute that the Second Amendment protects an individual right. Rather, he wrote, the question was the “scope of that right,” which protected militia service but left additional regulation to the judgment of the legislature. The Second Amendment’s drafting history revealed the founders’ “concern about the potential threat to state sovereignty that a federal standing army would pose,” something that could be checked by state militias, he wrote, joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer.
–Gary Fields and Louise Radnofsky contributed to this article.