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Ready, aim ... : The gun ruling means the battle has just begun
Sunday, June 29, 2008

The Second Amendment to the U.S. Constitution contains only 27 words, but it took Supreme Court Justice Antonin Scalia almost 56 pages of a densely argued 64-page opinion to explain why the few inconvenient words at the start of the amendment don't mean what they seem to mean.

That opening clause -- "A well regulated militia, being necessary to the security of a free state ..." -- could suggest, as it did to the dissenters on the losing end of the 5-4 majority in last week's pivotal gun-control decision, that "the right of the people to keep and bear arms" was first a collective right associated with militias.

By carefully parsing the amendment into two distinct clauses, then dredging and sifting legal and historical documents and precedents, Justice Scalia stepped boldly from the shadow of the word "militia" and declared what the Supreme Court had never done before: that the Second Amendment outlines an individual right.

That finding isn't far-fetched, but if a liberal judge had performed a similar feat of judicial gymnastics to negate the democratic will of a community, the word "activist" would be ringing throughout the land.

In a strong dissent, Justice John Paul Stevens also cited historical sources to rebut the notion that the amendment's reference to the militia was irrelevant. He found it striking that the framers did not mention personal defense in the Second Amendment, even though a couple of states (including Pennsylvania) had such explicit wording in their own declarations of rights.

Justice Stevens called the ruling "a dramatic upheaval of the law." We would say it was the legal equivalent of throwing a cat among the pigeons, because it is possible that other gun-control measures might be put to flight. But those are future battles. The immediate effect was to overturn a comprehensive handgun ban in crime-ridden Washington, D.C.

The suit was brought by Dick Heller, a D.C. special police officer who could carry a handgun in his official duties but found that the city's 32-year-old law prevented him from keeping one at home. He initially lost in district court but a court of appeals sided with him, saying that he had a right to keep a handgun for self-defense.

Given that the Washington law was so strict -- Justice Scalia observed that few laws in the history of the nation have come close to its "severe restriction" -- the result of the case was not surprising. With the political leanings of this court, here was a law almost inviting trouble -- but how much trouble remains to be seen. In an earlier editorial, the Post-Gazette, anticipating a decision that might recognize an individual right to bear arms, worried that the court might scuttle other gun-control laws along the way.

There is some reason to hope that this won't happen, however. The opinion does acknowledge that "like most rights, the right secured by the Second Amendment is not unlimited." It says "nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools or government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

It also says that "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns" (and presumably machine guns).

But in his own dissent, Justice Stephen G. Breyer put his finger on the potentially dangerous sloppiness of this reasoning. If handguns cannot constitutionally be restricted as a class of firearms, because they are in the words of the majority opinion "the most popular weapon chosen by Americans for self-defense in the home," then what happens if Congress and the state lift restrictions on machine guns and they become popular?

Justice Breyer suggests that, by the majority's reasoning, the court "will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machine gun."

This decision opens a Pandora's Box. With rival groups like the National Rifle Association and CeaseFirePA taking comfort in this decision, Americans can take little comfort that the court, in settling one battle, has invited a thousand.

First published on June 29, 2008 at 12:00 am