The SCOTUS and Guns: How Far-reaching a Decision?

Lovers of freedom, rejoice! Defenders of the Constitution, celebrate! For today, the Supreme Court, that erstwhile judicial body turned dictatorial oligarchy, officially and finally endorsed the individual rights interpretation of the Second Amendment. For posterity, I reprint the text of the venerable amendment below:

A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed.

Justice Scalia wrote the opinion for the 5-4 majority, 
available here.  It's a long but very thorough examination of the textual and historical evidence supporting the view that the Second Amendment codified the pre-existing right of all citizens to keep and bear (ie own, store, carry, and use) Arms. There is precious little evidence to support the opposing view (endorsed by the dissenting justices) that the Second Amendment only protects the right of states to maintain armed militias (i.e. the National Guard), and what little evidence cited is usually distorted or fundamentally misunderstood. 

The endorsement of the individual rights model was an unexpected but welcome development. The underlying case was DC v. Heller, in which a security guard living in a rough neighborhood applied to the District of Columbia to receive a permit to keep a handgun in his home for self-defense. Per the draconian DC Gun Ban, which (until today!!) banned all private ownership of handguns, Mr. Heller was refused. The Court heard arguments on the issue of the constitutionality of the DC Gun Ban as well as the interpretation of the Second Amendment, but many (including the attorneys who argued the case) expected them to rule narrowly, probably striking down the Gun Ban as overbroad but not necessarily ruling on the issue of individual v. collective. 

Unfortunately, the Court didn't go as far as to incorporate the amendment into the Due Process Clause of the 14th Amendment (which is legal jargon for "this decision doesn't apply to states"). The reason Heller was brought as a test case was that it implicated federal action (legislation in DC) as opposed to action by a state or municipality like Chicago or NYC, who have similarly oppressive gun bans. Gun proponents needed to challenge federal action specifically because the Bill of Rights (the first 10 Amendments) has been held to only apply to the federal government, not states. But, through the doctrine of "incorporation," the Supreme Court has systematically "incorporated" the rights contained therein into the 14th Amendment, effectively applying them to the states. So while Heller restricts federal action, the individual rights view is not binding upon state governments until the Court decides that the 2nd Amendment applies to them as well. I imagine the NRA is cooking up a case as we speak for just such a ruling.

Incorporation notwithstanding, this is a watershed ruling and should be celebrated by conservatives and liberals alike. Republicans who are tired of President Bush should thank him for nominating solid conservatives to the bench, because without Justice Alito and Chief Justice Roberts, this decision doesn't happen. Likewise, conservatives who may be curious about or enchanted by Barack Obama or are just reticent about John McCain need to remember that the Supreme Court, for better or worse, has become the final political arbiter of many of the issues we care about most. It is likely that the next president will have to fill at least two vacancies on the high court. Obama will nominate young, dyed-in-the-wool liberals who will try for 30 years to overturn this ruling, and while McCain may not be perfect, the jurists he nominates will be conservative enough for us to at least hold serve ideologically. If for no other reason, go out and vote for McCain in November because of this.

Finally, every lover of liberty should celebrate this opinion and the natural rights it reenforces. The ownership and use of firearms is the citizenry's last line of defense against the rise of a dictator. As long as we the people are well-armed, our freedom cannot be usurped and we will never be subjugated. We may take this right and its implications for granted. We may take our government's long history of reasonable, democratic rule for granted. But the freedom of the common man was not always so secure. History is replete with examples of tyrants and dictators oppressing their people beneath the thumb of the state. This oppression is what lead an intrepid group of 55 men to declare their independence from the crown of England and to boldly steer their ship towards uncertain but freer waters. They wrote the Second Amendment knowing it was necessary to guarantee the liberty of the people, knowing that liberty couldn't be secure without it. 

In the Bill of Rights, the founders enumerated a certain limited list of rights they considered necessary to the survival of our democratic way of life. The right of free speech, of the printing press, of free assembly, of worship - all are rightly regarded as cornerstones to our freedom. But the Second Amendment is every bit as important as the rest.  Indeed, only with a robust exercise of the Second Amendment are our other rights fully guaranteed. After all, to paraphrase one blog commenter, our liberty is not defended with rainbow flags and tapenade.
Lovers of freedom, rejoice! Defenders of the Constitution, celebrate! For today, the Supreme Court, that erstwhile judicial body turned dictatorial oligarchy, officially and finally endorsed the individual rights interpretation of the Second Amendment. For posterity, I reprint the text of the venerable amendment below:

A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed.

Justice Scalia wrote the opinion for the 5-4 majority, 
available here.  It's a long but very thorough examination of the textual and historical evidence supporting the view that the Second Amendment codified the pre-existing right of all citizens to keep and bear (ie own, store, carry, and use) Arms. There is precious little evidence to support the opposing view (endorsed by the dissenting justices) that the Second Amendment only protects the right of states to maintain armed militias (i.e. the National Guard), and what little evidence cited is usually distorted or fundamentally misunderstood. 

The endorsement of the individual rights model was an unexpected but welcome development. The underlying case was DC v. Heller, in which a security guard living in a rough neighborhood applied to the District of Columbia to receive a permit to keep a handgun in his home for self-defense. Per the draconian DC Gun Ban, which (until today!!) banned all private ownership of handguns, Mr. Heller was refused. The Court heard arguments on the issue of the constitutionality of the DC Gun Ban as well as the interpretation of the Second Amendment, but many (including the attorneys who argued the case) expected them to rule narrowly, probably striking down the Gun Ban as overbroad but not necessarily ruling on the issue of individual v. collective. 

Unfortunately, the Court didn't go as far as to incorporate the amendment into the Due Process Clause of the 14th Amendment (which is legal jargon for "this decision doesn't apply to states"). The reason Heller was brought as a test case was that it implicated federal action (legislation in DC) as opposed to action by a state or municipality like Chicago or NYC, who have similarly oppressive gun bans. Gun proponents needed to challenge federal action specifically because the Bill of Rights (the first 10 Amendments) has been held to only apply to the federal government, not states. But, through the doctrine of "incorporation," the Supreme Court has systematically "incorporated" the rights contained therein into the 14th Amendment, effectively applying them to the states. So while Heller restricts federal action, the individual rights view is not binding upon state governments until the Court decides that the 2nd Amendment applies to them as well. I imagine the NRA is cooking up a case as we speak for just such a ruling.

Incorporation notwithstanding, this is a watershed ruling and should be celebrated by conservatives and liberals alike. Republicans who are tired of President Bush should thank him for nominating solid conservatives to the bench, because without Justice Alito and Chief Justice Roberts, this decision doesn't happen. Likewise, conservatives who may be curious about or enchanted by Barack Obama or are just reticent about John McCain need to remember that the Supreme Court, for better or worse, has become the final political arbiter of many of the issues we care about most. It is likely that the next president will have to fill at least two vacancies on the high court. Obama will nominate young, dyed-in-the-wool liberals who will try for 30 years to overturn this ruling, and while McCain may not be perfect, the jurists he nominates will be conservative enough for us to at least hold serve ideologically. If for no other reason, go out and vote for McCain in November because of this.

Finally, every lover of liberty should celebrate this opinion and the natural rights it reenforces. The ownership and use of firearms is the citizenry's last line of defense against the rise of a dictator. As long as we the people are well-armed, our freedom cannot be usurped and we will never be subjugated. We may take this right and its implications for granted. We may take our government's long history of reasonable, democratic rule for granted. But the freedom of the common man was not always so secure. History is replete with examples of tyrants and dictators oppressing their people beneath the thumb of the state. This oppression is what lead an intrepid group of 55 men to declare their independence from the crown of England and to boldly steer their ship towards uncertain but freer waters. They wrote the Second Amendment knowing it was necessary to guarantee the liberty of the people, knowing that liberty couldn't be secure without it. 

In the Bill of Rights, the founders enumerated a certain limited list of rights they considered necessary to the survival of our democratic way of life. The right of free speech, of the printing press, of free assembly, of worship - all are rightly regarded as cornerstones to our freedom. But the Second Amendment is every bit as important as the rest.  Indeed, only with a robust exercise of the Second Amendment are our other rights fully guaranteed. After all, to paraphrase one blog commenter, our liberty is not defended with rainbow flags and tapenade.