Supreme Court Gun Ruling: More Bark Than Bite?

The decision that the Second Amendment applies to state and local gun-control laws is a big deal. But it's not clear how many such laws will be wiped away as a result

By Adam Cohen Tuesday, June 29, 2010
    • KAREN BLEIER / AFP / Getty Images

    A man holds a Colt .45 semiautomatic pistol in Manassas, Va. The Supreme Court struck down a Chicago handgun ban in a landmark ruling that limits state gun-control laws across the country

    This is a big week for guns and the people who want to carry them. The question: Just how big?

    The Supreme Court ruled on Monday, June 28, in a challenge to Chicago's gun-control law, that Americans in all 50 states have a constitutional right to possess firearms for self-defense. Gun-rights supporters are ecstatic about the decision. The floodgates are now open for lawsuits challenging state and local gun-control laws nationwide. But based on what the majority actually said, it seems likely that many of these challenges will fail.

    Though gun-rights groups like the National Rifle Association (NRA) have wielded power on Capitol Hill for decades, the legal battle over the constitutional right to possess a firearm heated up only two years ago. In a challenge to a tough gun-control law in Washington, D.C., the Supreme Court ruled 5-4 that the Second Amendment gives people an individual right to bear arms. To many judicial observers and gun-control advocates, that came as something of a shock, since for more than 200 years, the overwhelming view in the legal world had been that the Second Amendment only protected a state's right to maintain a "well-regulated militia."

    This week, the court answered a technical question about its 2008 ruling, concerning whether the federal right it recognized (the District of Columbia is on federal land) also applied to the 50 states. By another 5-4 vote, the court said it does.

    While the court's five-member conservative majority has been bold about declaring a Second Amendment right to have a gun, it has been less than clear about which gun-control laws violate that right. In fact, the court did not actually strike down Chicago's law, which is effectively a near ban on the possession of handguns by private citizens. It simply asked a lower court to take another look at it.

    In both the Chicago and D.C. cases, the Supreme Court focused narrowly on people's rights to use guns to protect themselves in their own homes. The court emphasized that it was not casting doubt on many kinds of gun regulations — including prohibitions on gun possession by felons and the mentally ill, laws keeping guns away from schools and government buildings and laws imposing restrictions like waiting periods on the sale of guns.

    That still leaves a sizable gray area. As Justice Stephen Breyer noted in his dissent, the court has not given any real guidance on whether the right to be armed extends outside the house, whether it includes the right to use a semiautomatic weapon or what registration laws are permissible.

    These are some of the issues lawyers will be fighting over. And despite all of the celebration by pro-gun forces, it is far from clear that they will win when the battle turns to specific gun-control measures. Perhaps that's why supporters of gun control were notably upbeat when the ruling came down. The Brady Center to Prevent Gun Violence declared that it "does not prevent elected representatives from enacting commonsense gun laws." Mayor Richard Daley of Chicago said his city has already begun crafting a law that will withstand constitutional challenge — by, for instance, focusing it on gun registration, background checks, requirements for gun owners to get training and perhaps requirements to carry insurance.

    The stakes in this battle are extremely high. Pro-gun advocates have done a good job of trumpeting the rights of people to carry firearms. But less attention is given these days to the right not to be put into danger by guns. More than 100,000 Americans are killed or injured by guns every year, according to the Brady Center. By some estimates, the Chicago gun-control law that is now in jeopardy has saved as many as 1,000 lives since it was enacted in the early 1980s.

    Pro-gun groups try to create the impression that the vast majority of Americans support greater gun rights. But the will of the people has long favored some kind of gun control. A CBS–New York Times poll in April found that 40% of Americans thought gun-control laws should be more strict, while 42% thought they should be kept as they are. Just 16% said they should be less strict. All 50 states have gun regulations, and the Chicago and D.C. laws were enacted by democratically elected governments.

    There is one more reason the impact of this week's ruling could be limited. The dissenting justices continued to question the thinking underlying the court's 2008 decision recognizing a constitutional right to carry guns. If one of the court's conservatives leaves and is replaced by a liberal, the Second Amendment could revert to what it was for more than two centuries: a right that belongs to states, not to individuals.