Supremes explode on right to bear arms

Thursday’s decision by the United States Supreme Court protecting an individual right to own a gun for personal use is good news for some, but downright frightening for those who worry about the ever escalating gun violence in the Chicaogland area and the rest of the country.

First, the New York Times:

The Supreme Court on Thursday embraced the long-disputed view that the Second Amendment protects an individual right to own a gun for personal use, ruling 5 to 4 that there is a constitutional right to keep a loaded handgun at home for self-defense.

The landmark ruling overturned the District of Columbia’s ban on handguns, the strictest gun-control law in the country, and appeared certain to usher in a fresh round of litigation over gun rights throughout the country.

Next, Mayor Daley via the Chicago Tribune:

An angry Mayor Richard Daley on Thursday called the Supreme Court’s overturning of the Washington D.C. handgun ban “a very frightening decision” and vowed to fight vigorously any challenges to Chicago’s ban.

That challenge was not long in coming. Hours after the high court’s ruling was made public Thursday, the Second Amendment Foundation and the Illinois State Rifle Association sued the city and the mayor in an effort to overturn Chicago’s quarter-century ban on handguns.

“We think we’re such an improved society,” [Daley] added. “The rest of the world is laughing at us.”

The London Times Online broadens the perspective a bit:

Professor Laurence Tribe, a leading expert in constitutional law said that “regretfully, and speaking as a liberal scholar” the Second Amendment did appear to support an individual right to possess guns.

“The more important point is how far that right can be regulated,” he told The Times. It would still be possible for states to impose limits on carrying concealed weapons, regulate the sale of firearms and stop certain categories of people — including the mentally ill or those with criminal records — from owning guns. “I’m not persuaded that more people will die,” he said. “The cause and effect is much more complicated. What we will see is all sorts of challenges and litigation. This will be a lawyers’ bonanza.”

Asked if England and Wales — where there were 50 deaths through gun crime in 2005 compared with 12,352 gun-related murders in the US — could teach America a lesson, he said: “We come from a much more violent culture, one in which it would be much more difficult to enact and enforce a complete ban. Whatever the law, we’re not going to become England.”

What an astounding contrast: 50 deaths through gun crime in England and Wales in 2005, compared with 12,352 gun-related murders in the US.

The 157 page split opinion, another lengthy and loquacious product the Roberts court is famous for, does not claim the Second Amendment is unlimited, “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.” However, the decision does extend to trigger-locks:

The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional.

The split vote:

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

Scalia parses the Second Amendment:

The Second Amendment provides: “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.”

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

So the right to bear arms is not granted for the purpose of creating a “well regulated Militia.” Indeed, the majority do not seem to want any regulation at all.

Which arms are permitted? Here again, Scalia rambles on for pages, reflecting on the historical meaning of what the words “bear arms” might mean. Is this right limited to the military? Does the phrase mean we have the right to bear arms that existed in the 18th century?

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.

That’s a rather broad interpretation. So Scalia narrows it down a bit:

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

Scalia references Pennsylvania and Vermont for historical justification to separate the phrase “right to bear arms” from “a well regulated militia”:

Two of them—Pennsylvania and Vermont—clearly adopted individual rights unconnected to militia service. Pennsylvania’s Declaration of Rights of 1776 said: “That the people have a right to bear arms for the defence of themselves, and the state . . . .” §XIII, in 5 Thorpe 3082, 3083 (emphasis added). In 1777, Vermont adopted the identical provision, except for inconsequential differences in punctuation and capitalization.

Leaving no room for wiggle, Scalia’s opinoin is laced with rebuttals to the opinions of the dissenting justices. Scalia strongly rebukes Justice Stevens’ minority opinion:

JUSTICE STEVENS thinks it significant that the Virginia, New York, and North Carolina Second Amendment proposals were “embedded . . . within a group of principles that are distinctly military in meaning,” such as statements about the danger of standing armies. Post, at 22. But so was the highly influential minority proposal in Pennsylvania, yet that proposal, with its reference to hunting, plainly referred to an individual right. See 2 Documentary Hist. 624. Other than that erroneous point, JUSTICE STEVENS has brought forward absolutely no evidence that those proposals conferred only a right to carry arms in a militia.

Back to the Chicago Tribune:

In his dissent, Justice John Paul Stevens wrote that the majority “would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.” He said such evidence “is nowhere to be found.”

In the long run, Scalia’s marked lack of ability to get to the point may very well be the greatest weakness of this decision. His attempt to write an all-encompassing history of weaponry weakens his argument, raising more questions than it answers, and may very well open the door for thousands of loopholes that could allow Chicago to keep its ban on handguns.  Chicago’s legal officials seem confident, at least for now:

“We are confident that this does not invalidate Chicago’s ordinance at this point,” said Jennifer Hoyle, spokeswoman for the city Law Department.

Still, the decision is a victory for the pro-gun lobby, and “a very frightening decision,” to quote Mayor Daley, for the rest of us.