The U.S. Supreme Court has decided to take up the issue of gun rights again.
Last year, the court ruled that the 2nd Amendment allows Americans in federal jurisdictions to possess a gun in their homes for self-defense purposes, rejecting a lower court’s ruling that the Amendment’s “right to bear arms” clause applied only to regulated militias.
But last term’s ruling concerned a Washington D.C. ban on handgun possession and therefore it applied only to federal laws restricting gun ownership.
Now the court, in taking up a Chicago ban on handgun possession, will decide whether the 2nd Amendment also applies to state restrictions on gun ownership.
This is an emotional issue, perhaps second only to abortion in its divisiveness, and the court in its D.C. decision trod lightly.
Though it’s early in Chief Justice John Roberts’ reign, it seems clear that he and his four fellow conservatives intend to reverse the sweeping liberal rulings of the Warren and Burger courts slowly rather than make abrupt, sweeping decisions of their own.
For instance, Scalia, in his majority opinion in the D.C. case, channeled Oliver Wendell Holmes Jr., who famously opined that free speech is not an absolute right – you can’t cause a panic by shouting “Fire” in a crowded theater when there is no fire.
Scalia likewise argued that while the right to bear arms extends to individuals, it was not an absolute right. Just like there can be time, place and manner restrictions on speech, there can be similar restrictions on gun ownership. Some government restrictions on guns are reasonable, he said.
It was half a loaf neither side in the gun control debate wanted, nor seems willing to accept.
Both sides are getting wound up for round two and rightly so because there’s a chance the court’s decision may muddy the waters further.
Not all conservative justices are cut from same Constitutional cloth. Some have a more amorous relationship with the 10th Amendment – which reserves to the states any right not enumerated in the Constitution – than with other amendments and the court has never really said whether the 2nd Amendment applies only to the federal government or to the states as well.
The Chicago case should settle that but will the 10th trump the 2nd in some justices’ minds?
When the court’s various ideological wings run into competing amendments, the wings often fly apart and you get crazy quilt split decisions loaded with concurring and dissenting opinions.
And that well could be the case here. To be sure, the court’s five conservatives will likely affirm that the right to bear arms extends to all individuals not just those in federal jurisdiction. Where it could get interesting is if they split over whether the states have the right to restrict that right and if so, by how much.
If the 10th Amendment gets in the way, gun rights and gun control advocates could be left with a tortured ruling that will probably require a third round in the court to nail down the 2nd Amendment.
What do you think?