It's an interesting decision, I'll give it that.
The Second Amendment’s guarantee of an individual right to bear arms applies to state and local gun control laws, the Supreme Court ruled on Monday in a 5-to-4 decision.
The ruling came almost exactly two years after the court first ruled that the Second Amendment protects an individual right to own guns in District of Columbia v. Heller, another 5-to-4 decision. But the Heller case addressed only federal laws; it left open the question of whether Second Amendment rights protect gun owners from overreaching by state and local governments.
Justice Samuel A. Alito Jr., writing for the majority, said that the right to self-defense protected by the Second Amendment is fundamental to the American conception of ordered liberty. Like other provisions of the Bill of Rights that set out such fundamental protections, he said, the Second Amendment must be applied to limit not only federal power but also that of state and local governments.
The ruling is an enormous symbolic victory for supporters of gun rights, but its short-term practical effect is unclear. As in the Heller decision, the justices left for another day the question of just what kinds of gun control laws can be reconciled with Second Amendment protection. Indeed, in more than 200 pages of opinions, the court did not even decide the constitutionality of the two gun control laws that were at issue in the case, from Chicago and Oak Park, Ill. The justices returned the case to the lower courts to decide whether those exceptionally strict laws, which effectively banned the private possession of handguns, can be reconciled with the Second Amendment.
Justice Stephen G. Breyer, in dissent, said “the majority would almost certainly strike down” the Chicago law had it reached the question. The majority in the Heller decision did strike down parts of a similar federal law governing the District of Columbia.
Justice Alito, who was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and, in large part, Clarence Thomas, acknowledged that the decision may “lead to extensive and costly litigation,” but he said that is the price of protecting constitutional freedoms.
The majority offered the lower courts little guidance about how much protection the Second Amendment affords. In a part of his opinion that Justice Thomas declined to join, Justice Alito reiterated the caveats in the Heller decision, saying the court did not mean to cast doubt on laws prohibiting possession of guns by felons and people who suffer from mental illness, laws forbidding carrying guns in sensitive places like schools and government buildings or laws regulating the commercial sale of firearms. The important point was a broad one, Justice Alito wrote: that the Second Amendment, like other provisions of the Bill of Rights guaranteeing fundamental rights, must be applied to the states under the Fourteenth Amendment.
Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor dissented. They said the Heller decision remained incorrect, and added that they would not have extended its protections to state and local laws even if it had been correctly decided. “Although the court’s decision in this case might be seen as a mere adjunct to Heller,” Justice Stevens wrote, “the consequences could prove far more destructive — quite literally — to out nation’s communities and to our constitution.” [...]
The strange thing about these cases is that they didn't bother to reach the merits of the cases themselves, but only the constitutional issue. They sent the cases regarding the laws themselves back to the lower courts, which almost certainly means that they'll be back in front of the Court itself in two or three years, asking them to adjudicate the merits of the case -- do the laws of Chicago and Oak Park follow the profound lack of guidelines the Court has declined to set forth? Are they constitutional? Souter says that if the Court had bothered to decide the merits of the case, both laws would almost certainly have been struck down -- they are, after all, nearly complete bans on the possession of handguns within the city limits of both communities. You can scarcely abridge the right to bear arms more emphatically than by saying "thou shalt NOT."
Unfortunately, assuming she's confirmed, Kagan is unlikely to change the balance in decisions like these. Assuming that she lands on the moderate-to-liberal wing, she'll only replace Stevens' vote in this type of case.
In any event, for another year or two, the laws operate as they did (or didn't) as they did before, while the district and appeals courts decide what to do with them. Eventually, the Court will find itself bestirred and forced to directly strike down the laws, rather than sending them back to the lower courts to decide. And then it will be fascinating to see the conniptions and convolutions that various cities and states send themselves through to seriously restrict the right to bear arms, in accord with what will almost certainly continue to be a profound lack of guidance from the Court. And then those laws will go before the Court to be struck down repeatedly, until the states come up with a regulatory scheme that can somehow pass muster. (It's probably going to be something like "If you have more than 20-30 handguns, you got too many."
Posted by iain at June 28, 2010 03:15 PM
