Don't Blame the Supreme Court for Inaction on Guns
A lot of people who want tighter gun control blame the Supreme Court for standing in their way. In 2008, a 5-4 majority read the Second Amendment to protect an individual's right to own guns. That decision, writes Fareed Zakaria, “has made common-sense regulation of guns much harder” and contributed to America’s high gun-homicide rate. The court’s rulings have “severely hobbled” lawmakers in regulating guns, claims Ian Millhiser. The massacre at a nightclub in Orlando last weekend has led to renewed attacks on the court’s gun rulings.
But the practical importance of these judicial rulings has been exaggerated. They are well down the list of obstacles to gun control in America.
The court’s decisions struck down gun bans in Washington and Chicago. But banning the possession of guns has not been the stated goal of the mainstream movement for gun regulations. That movement has instead sought more limited objectives, such as bans on some categories of guns and stronger requirements for background checks before guns can be sold.
In its 2008 decision, the Supreme Court explicitly said that it does not consider the Second Amendment to rule out all regulations. The right the amendment protects, it said, is “not unlimited.” It added that “nothing in our opinion should be taken to cast doubt on longstanding 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 and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Moreover, it said that the amendment covered only the kind of weapons in common use at the time of the Founding. How to apply these limitations on the right is, of course, debatable. But the court has subsequently declined even to hear a case challenging a local ordinance against “assault weapons.”
The Supreme Court has not had any occasion to consider a federal ban on “assault weapons” since it embraced the individual-rights view because Congress has not passed one. In 2013, a Democratic Senate could muster only 40 votes for that ban. Legislation to expand background checks also died without any action from the court.
The gun regulations at the center of our national debate, that is, have been blocked by political opposition rather than judicial rulings. (They had been blocked by political opposition in the years before 2008, too.) The court has merely struck down some of the strictest regulations in the U.S. -- regulations that our country as a whole is nowhere close to adopting. The court’s rulings have had no effect on the laws governing most Americans.
But while the court has not been a major constraint on gun regulations, the Second Amendment probably has been. That’s because its presence in the Constitution, even when the courts have not used it to nullify any laws, has strengthened popular support for gun rights. It has influenced public sentiment, votes and legislative debates.
In this respect the Second Amendment has worked as James Madison envisioned it. In modern America we tend to think that the Bill of Rights operates mostly through the courts, but he did not. In a 1788 letter to Thomas Jefferson making the case for the amendments, he said their chief value would be to ensure that certain rights were “incorporated with the national sentiment” and to furnish “good ground for an appeal to the sense of the community” when those rights were in danger. His speech proposing the Bill of Rights in 1789 emphasized the same points.
Liberals who want stricter gun laws are not the only participants in this debate who sometimes overstate the role of the courts. Conservative advocates of gun rights say that another Democratic appointment to the Supreme Court will make the Second Amendment a dead letter. The truth is that whoever wins the election and however the court rules, tens of millions of Americans will continue to invoke the amendment in defense of their right to own guns -- and the political system will continue to respond to them.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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