The Court: Ignoring the Reality of Guns
Court's conservative majority imposed its selective reading of American history, citing the country's violent separation from Britain and the battles over slavery as proof that the authors of the Constitution and its later amendments considered gun ownership a fundamental right

OPINION

New York Times

June 29, 2010

About 10,000 Americans died by handgun violence, according to federal statistics, in the four months that the Supreme Court debated which clause of the Constitution it would use to subvert Chicago's entirely sensible ban on handgun ownership. The arguments that led to Monday's decision undermining Chicago's law were infuriatingly abstract, but the results will be all too real and bloody.

This began two years ago, when the Supreme Court disregarded the plain words of the Second Amendment and overturned the District of Columbia's handgun ban, deciding that the amendment gave individuals in the district, not just militias, the right to bear arms.

Proceeding from that flawed logic, the court has now said the amendment applies to all states and cities, rendering Chicago's ban on handgun ownership unenforceable.

Once again, the court's conservative majority imposed its selective reading of American history, citing the country's violent separation from Britain and the battles over slavery as proof that the authors of the Constitution and its later amendments considered gun ownership a fundamental right.

The court's members ignored the present-day reality of Chicago, where 258 public school students were shot last school year — 32 fatally.

Rather than acknowledging Chicago's — and the nation's — need to end an epidemic of gun violence, the justices spent scores of pages in the decision analyzing which legal theory should bind the Second Amendment to the states. Should it be the due process clause of the 14th Amendment, or the amendment's immunities clause? The argument was not completely settled because there was not a five-vote majority for either path.

The issue is not trivial; had the court backed the immunity-clause path championed by Justice Clarence Thomas, it might have had the beneficial effect of applying more aspects of the Bill of Rights to the states. That could make it easier to require that states, like the federal government, have unanimous jury verdicts in criminal trials, for example, or ban excessive fines.

While the court has now twice attacked complete bans on handgun ownership, the decision left plenty of room for restrictions on who can buy and sell arms.

The court acknowledged, as it did in the District of Columbia case, that the amendment did not confer “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” It cited a few examples of what it considered acceptable: limits on gun ownership by felons or the mentally ill, bans on carrying firearms in sensitive places like schools or government buildings and conditions on gun sales.

Mayors and state lawmakers will have to use all of that room and keep adopting the most restrictive possible gun laws — to protect the lives of Americans and aid the work of law enforcement officials. They should continue to impose background checks, limit bulk gun purchases, regulate dealers, close gun-show loopholes.

They should not be intimidated by the theoretical debate that has now concluded at the court or the relentless stream of lawsuits sure to follow from the gun lobby that will undoubtedly keep pressing to overturn any and all restrictions. Officials will have to press back even harder. Too many lives are at stake.