Shot Down: What's Behind the Court's Gun-Control Decision

By Dionne Jr, E. J. | Commonweal, July 18, 2008 | Go to article overview
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Shot Down: What's Behind the Court's Gun-Control Decision


Dionne Jr, E. J., Commonweal


In knocking down the District of Columbia's thirty-two-year ban on handgun possession last month, the conservatives on the U.S. Supreme Court again demonstrated their willingness to abandon precedent in order to do whatever is necessary to further the agenda of the contemporary political Right.

The Court's five most conservative members once again made clear that for all of Justice Antonin Scalia's talk about "originalism" as a coherent constitutional doctrine, the judicial Right regularly succumbs to the temptation to legislate from the bench. They fall in line behind whatever fashions political conservatism is promoting.

Conservative justices claim that they defer to local authority. Not in this case. They insist that political questions should be decided by elected officials. Not in this case. They argue that they pay careful attention to the precise words of the Constitution. Not in this case.

The political response to this decision from many liberals and Democrats was relief that the ruling still permits gun regulation, and quiet satisfaction that it will minimize the chances of the gun issue hurting Barack Obama in the presidential campaign. Some will rationalize this view by pointing to maverick liberal constitutional scholars who see a broad right to bear arms in the Second Amendment.

But these pragmatic judgments underestimate how radical this decision is in light of the operating precedents of the past sixty-nine years. The United States and its gun owners have done perfectly well since 1939, when an earlier Supreme Court interpreted the Second Amendment as implying a collective right to bear arms but not an individual right. Here is what the Second Amendment says: "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 Court's narrow majority in the D.C. handgun case spent the first fifty-four pages of its decision (written by Scalia) trying to show that even though the framers inserted thirteen important words in front of the assertion of a right to bear arms, those words were essentially meaningless. Does that reasoning reflect an honest attempt to determine the "original" intention of the Constitution's framers?

In fact, it was the Court's four more liberal justices who favored judicial modesty, deference to democratic decisions, empowerment of local officials, and care in examining the Constitution's actual text and the history behind it.

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