Clauses and Effects

Regarding this week’s Supreme Court ruling in the case of District of Columbia v. Heller: conservatives are too happy and liberals are too upset. While the Court did apparently resolve a fundamental legal question, one that had languished for over a century, by interpreting the U.S. Constitution’s oddly punctuated Second Amendment as protecting the right of individuals to own a gun for non-military purposes, the decision is likely to have very little practical effect. Justice Antonin Scalia’s majority opinion did not endorse the extremist view that virtually any gun-control legislation represents an infringement of the right to bear arms; indeed, he explicitly stated that the Court’s opinion allowed for “laws imposing conditions and qualifications on the commercial sale of arms” and other gun-related legislation. Only highly restrictive gun laws, such as the one at issue from Washington, D.C., that effectively banned possession of handguns altogether for most people, would run afoul of the Court’s decision. There will certainly be lawsuits in a few cities such as Chicago, but the vast majority of existing gun legislation is safe. Indeed, it’s not even clear whether the Heller decision applies to state and local governments; the Court was able to sidestep this issue because the District of Columbia is under federal jurisdiction.

The fact is, very few jurisdictions, most of them large cities where liberals far outnumber hunters, could even pass a law as restrictive as the D.C. ban, which brings me to a larger legal point about the Heller decision. Notwithstanding Justice Scalia’s endless (and highly selective) historical analysis, which I won’t pretend to have read nearly all of, this decision was not a triumph of originalism, the doctrine espoused by some conservative legal scholars that essentially boils down to the absurd notion that we should continue to be governed by the antiquated standards of 1787 (or 1791). Rather, Scalia’s opinion was an example of living constitutionalism in action, based on the type of reasoning that conservatives have disparaged on other occasions as “judicial activism.” While it may ultimately be impossible to ascertain how the founding fathers may have intended the relationship between the Second Amendment’s prefatory and operative clauses, there can be little doubt that the individual right to bear arms has long been enshrined in practice in this country. The law simply hadn’t caught up yet.

Liberals also stand to gain from this decision in terms of electoral politics. The Supreme Court’s affirmation of the individual right to bear arms should have the effect of taking the gun issue, a perennial loser for Democrats, off the table. It’s now going to be very difficult to make the argument that an Obama administration would be in the business of confiscating people’s guns, a claim the Republicans were able to make very effectively against Al Gore in 2000, despite its lack of any basis in reality. Obama’s own reaction to the decision, a cautious endorsement tempered by an acknowledgment of the need for big cities to have all the necessary tools at their disposal to fight gun violence, will no doubt be characterized as equivocation in some quarters, but seemed appropriately nuanced.