D.C. Gun Ban: Why The Court's Decision Won't Matter
Big story: The U.S. Supreme Court decides to take on the D.C. gun ban, agreeing to rule next spring whether the Constitution protects an individual's right to own a gun. For the first time since 1939, the Supremes will take on a Second Amendment case that promises to settle the long-roiling national debate over just what the Founders meant when they wrote that "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."
Should be a momentous case, right? "Clearly," said Georgetown Law professor Randy Barnett, "this is going to be one of the biggest cases decided by the Supreme Court this year, and perhaps...the biggest in 10 years."
And for law fans, it will indeed be huge. It's the nature of lawyers to push their positions to the max, so this episode will be the profession's equivalent of the climax of a shoot-em-up.
But try this out for size: No matter whether the Supremes definitively make clear that the Constitution guarantees an individual right to bear arms, or definitively go along with decades of decisions that the amendment is really intended only to assure that militias can operate effectively, or take some weaselly middle route that satisfies neither side in this long-running culture war, it won't make much difference to the future of gun ownership in the United States.
The courts, you see, don't get to decide what's at the root of what it means to be American. The people will decide that, through their shifting attitudes and the pressure they place on their elected officials. If the Supremes toss out the District's gun ban, that still leaves a strong body of law, tradition and, amazingly enough in these supposedly polarized times, political consensus that it's perfectly reasonable to regulate gun ownership. They don't like to tout this in their fundraising ads, but even hard-core NRA supporters favor some regulation of guns. There's hardly any opposition to the idea that felons and the mentally impaired should be barred from owning guns. Increasingly, there's widespread public consensus about banning guns from certain places, and the various local debates about excluding firearms from bars, schools, libraries, college campuses, or hospitals are just arguments about which places to include in the list of forbidden zones.
Decades of efforts to expand gun control laws, countered by equally strong campaigns to protect gun ownership, have led to what looks like a legal and political stalemate. But if you look beyond the big, handsomely funded interest groups, you see that over that same time, popular opinion has shifted pretty dramatically. While most Americans tell pollsters they read the Constitution to protect an individual right to gun ownership, similar majorities favor all sorts of restrictions on gun ownership that hardline pro-gun groups feel compelled to oppose.
Let's be honest: Neither gun bans such as the District's, nor pro-gun legal initiatives such as those we see coming from Virginia's legislature most years, have much impact on violence or crime. "Gun policies," Harvard law professor Mark Tushnet concludes in his new book, "Out of Range: Why The Constitution Can't End the Battle Over Guns," "aren't all that effective." In fact, if you remove the big-money lobbies from the debate and turn down the volume on the cable TV shoutathons, you'll find a pretty impressive consensus around the country--even in stereotypical red states--that there ought to be tighter restrictions on guns.
Tushnet concludes his book with a call for politicians to, well, disarm on the gun issue--to be honest with Americans and say that there are a lot of interesting and promising ways to attack crime, but passing new gun laws--in either direction--is not one of them.
Of course, we're not likely to see many politicians taking the professor up on his proposal. The NRA and the gun control groups are good, steady providers of campaign cash, and it's beneficial to any politician to take a strong stand on guns, pro or con. It's a good way to appeal to the highly polarized voters who tend to dominate the primary election voting pool.
That leaves most Americans--and their more discerning views on guns--pretty much out of the picture.
In the case of the District and its symbolically admirable but practically ineffectual gun ban, what will happen in the next few months will be great fun to watch and analyze. But in the end, it will be meaningless.
"There's every reason to think we have four sympathetic justices," Barnett told me. That would be Justices Ruth Bader Ginsburg, John Paul Stevens, David Souter and Stephen Breyer. "And four unsympathetic justices." That would be Justices Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito. "And Justice Kennedy."
Because the Supremes have not ruled on a Second Amendment case since 1939, and because lower courts tended to shy away from gun cases until the last few years, Kennedy, like his colleagues, doesn't have much of a paper trail on gun matters. But he's something of a libertarian and just as he's a strong proponent of gay rights because he believes that all things being equal, the government should leave people alone, he may be inclined to feel similarly about gun ownership.
It's easy to see the court deciding that well, yes, grammatically, the Second Amendment seems to be just about the collective right to own guns for our general defense, but the history of the country makes it clear that individuals have always owned guns, whether to get food for their family or to protect themselves against bad guys. But it's equally easy to see the court saying that while the Second Amendment is about such an individual right, the government nonetheless has the right and obligation to do as the people want and restrict that right in various ways, for the protection of all. Which would leave us pretty much where we are today.
The District is likely to lose its gun ban, but might come out of this more free than it is today to place restrictions on who may own a gun and where, when and how he may carry or display it.
Was the D.C. government foolish to seek Supreme blessing for its total handgun ban from a Court that's pretty antagonistic to all things D.C.? If you're deeply commiitted to the D.C. gun ban as it's written, yes, this is something of an act of folly. But as Barnett notes, there's not much downside to the appeal: "They have virtually nothing to lose," given that a federal appeals court has already tossed out the D.C. ban. "They can't be made worse off than they currently are." In a sense, all the District is hunting for is one vote.
But whether the District's lawyers get that vote or not, thugs will still find guns easily and cheaply on the city's streets and Americans will still believe that it should be much harder for deranged killers such as Virginia Tech shooter Seung-Hui Cho to get his hands on a firearm. Those issues will be resolved in the court of public opinion, not in any court of law. Simple regulations, not fancy legal arguments, will determine who gets to own guns, and those regulations will be driven by politicians under pressure from citizens who've had enough. The Supreme Court action is a fun intellectual exercise, but it is little more than a game, a sideshow to the real action.
By Marc Fisher |
November 21, 2007; 6:12 AM ET
Previous: Boss Shepherd and The Power to Shape D.C. | Next: Redemption Roulette: I-Man Back In, Greaseman Still Out
Please email us to report offensive comments.
Posted by: Dwight | November 21, 2007 6:36 AM
Posted by: Bob | November 21, 2007 6:36 AM
Posted by: Douglas in CT | November 21, 2007 8:48 AM
Posted by: Woodbridge VA | November 21, 2007 8:50 AM
Posted by: Charlie | November 21, 2007 9:02 AM
Posted by: Cathy | November 21, 2007 9:04 AM
Posted by: AlvinT | November 21, 2007 9:15 AM
Posted by: Fisher | November 21, 2007 9:26 AM
Posted by: gitarre | November 21, 2007 9:31 AM
Posted by: Benjamin | November 21, 2007 9:33 AM
Posted by: Foreoki12 | November 21, 2007 9:33 AM
Posted by: FLvet | November 21, 2007 9:37 AM
Posted by: Frankey | November 21, 2007 9:41 AM
Posted by: KraziJoe | November 21, 2007 10:15 AM
Posted by: Ed Harris | November 21, 2007 10:18 AM
Posted by: courthouseguy | November 21, 2007 10:29 AM
Posted by: Pants | November 21, 2007 10:40 AM
Posted by: Craig Hughes | November 21, 2007 10:45 AM
Posted by: Anonymous | November 21, 2007 10:49 AM
Posted by: Mike Licht | November 21, 2007 10:52 AM
Posted by: SAMUEL ADAMS | November 21, 2007 10:54 AM
Posted by: JAMES MADISON | November 21, 2007 10:58 AM
Posted by: GEORGE WASHINGTON | November 21, 2007 10:59 AM
Posted by: Westbrook v. Mihaly | November 21, 2007 11:02 AM
Posted by: Ajohn1 | November 21, 2007 11:13 AM
Posted by: Stuart Clubb | November 21, 2007 11:20 AM
Posted by: another thought | November 21, 2007 11:35 AM
Posted by: Oakton, VA | November 21, 2007 11:56 AM
Posted by: SoMD | November 21, 2007 12:26 PM
Posted by: FLvet | November 21, 2007 12:36 PM
Posted by: Jerry | November 21, 2007 1:55 PM
Posted by: SoMD | November 21, 2007 1:57 PM
Posted by: Mike Licht | November 21, 2007 2:24 PM
Posted by: David | November 21, 2007 2:35 PM
Posted by: George Washington | November 21, 2007 2:37 PM
Posted by: George Washington | November 21, 2007 2:42 PM
Posted by: Dave | November 21, 2007 3:48 PM
Posted by: Mike Licht | November 21, 2007 5:32 PM
Posted by: Gary Berland | November 22, 2007 12:03 PM
Posted by: 2nd amendment | November 22, 2007 10:43 PM
Posted by: Kill 'em all! | November 25, 2007 3:56 PM
Posted by: Anonymous | November 25, 2007 11:01 PM
Posted by: Gary E. Masters | November 26, 2007 11:35 AM
Posted by: VA Citizen/DC Denizen | November 26, 2007 2:42 PM
Posted by: Anonymous | November 27, 2007 10:49 PM
Posted by: Anonymous | November 29, 2007 4:22 PM
The comments to this entry are closed.