More Gun Regulation Is Inevitable
Campaigning for her mother in Maryland last week, Chelsea Clinton said the Supreme Court could issue a "definitive" ruling on gun control in the near future. Clinton didn't define "definitive," let alone "gun control." But with a vacancy on the court following the death of Antonin Scalia, it seems more than plausible that Clinton the Younger was referring to overturning the landmark decision in District of Columbia v. Heller.
Scalia was the author of Heller, the 2008 ruling that established an individual right to gun possession. Scalia's death -- despite the still uncertain prospects of replacing him -- has raised a question about Heller's durability.
Heller was decided by a 5-4 majority. The dissent, written by Justice John Paul Stevens, was not meek. Stevens basically accused Scalia of throwing out two centuries of legal precedent and reading Scalia's own preferences into the Second Amendment. Scalia, he wrote, all but dismissed the amendment's highly inconvenient preamble placing gun rights within the context of a "well-regulated militia":
Without identifying any language in the text that even mentions civilian uses of firearms, the Court proceeds to “find” its preferred reading in what is at best an ambiguous text, and then concludes that its reading is not foreclosed by the preamble. Perhaps the Court’s approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow.
In other words, Scalia, Ye Olde and Venerable Originaliste, was making it up.
The respected conservative appellate court justice Richard Posner later piled on, writing in the New Republic that Scalia's opinion was "questionable in both method and result, and it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology."
Given that four justices vigorously dissented from Heller, that the ruling overturned established court views on the Second Amendment and that Posner, one of the sharpest (if unreliably) conservative pens in the judiciary, dismissed its "pretense of engaging in originalist interpretation," you'd think gun-control organizations might be preparing for war against Heller -- especially with the prospect of adding a fifth anti-Heller vote to the court.
"Heller is a very limited ruling that does little more than guarantee the right to have a handgun in the home for self-defense. The modern gun control movement is okay with that," e-mailed UCLA law professor Adam Winkler, author of "Gunfight: The Battle Over the Right to Bear Arms in America."
Adam Skaggs, senior counsel for Everytown for Gun Safety, the gun regulation group founded by Bloomberg LP founder Michael Bloomberg, echoed Winkler. "We do not see Heller as an impediment to the common-sense gun-violence-prevention laws that we support," he e-mailed. "We view Heller as settled law, we support the Second Amendment rights of law-abiding gun owners and we are not seeking to have Heller overturned."
Heller simply hasn't been a big impediment to gun regulation. A series of Supreme Court moves after Heller made it clear that Scalia's majority found much regulation perfectly acceptable. And there was never any risk of the court adopting the gun movement's more exotic premises, such as the notion that gun rights are "God-given," a view handed down by National Rifle Association leader Wayne LaPierre in his colorful sermons.
Yet Heller could end up being overturned anyway. Strategic litigation is commonplace in the U.S. If gun-regulation activists don't pursue it, others outside the fold could. The Heller suit itself was advanced over the resistance of the NRA, which feared the Supreme Court would use it to affirm that gun rights are indeed attached to militia duty.
If Congress remains politically incapacitated on guns -- hardly unlikely given the disproportionate power of gun-friendly rural states in the Senate -- the court could end up revisiting Heller. Disparities between the respective gun laws of red states and blue states have been growing. That conflict, or elements of it, could land at the Supreme Court. If Scalia's seat, and perhaps even that of another conservative, is filled by a Democratic president, the outcome could be very different from the outcome in Heller.
Successful nations eventually figure out ways to stop underwriting failure. The U.S. may continue to allow 100,000 citizens to be killed or injured each year by guns. But not forever. Sooner or later, an increasingly cosmopolitan U.S. will free itself from the extreme gun-rights movement, and the inertia of mass death. A change might be instigated by politicians. It might be instigated by judges. Heller could be the basis of increased gun regulation, or it could be swept aside in favor of a more restrictive ruling. Either is possible. And given the extravagant tragedy of the status quo, either is more likely than no change at all.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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