When the Supreme Court struck down a ban on handguns by the District of Columbia in 2008, ruling that there is a constitutional right to keep a loaded handgun at home for self-defense, the decision was enormously controversial in the legal world. But the court's conclusion has generally been accepted in the real world because the ruling was in tune with popular opinion — favoring Americans' rights to own guns but also control of gun ownership.
The text of the Second Amendment creates no right to private possession of guns, but Justice Antonin Scalia found one in legal history for himself and the other four conservatives. He said the right is not outmoded even "in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem."
It is not just liberals who have lambasted the ruling, but some prominent conservatives like Judge J. Harvie Wilkinson III of the United States Court of Appeals for the Fourth Circuit. The majority, he wrote, "read an ambiguous constitutional provision as creating a substantive right that the Court had never acknowledged in the more than two hundred years since the amendment's enactment. The majority then used that same right to strike down a law passed by elected officials acting, rightly or wrongly, to preserve the safety of the citizenry." He said the court undermined "conservative jurisprudence."
In the real world, however, criticism has abated in part because the majority opinion was strikingly respectful of commonplace gun regulations. "Like most rights," Justice Scalia said, "the right secured by the Second Amendment is not unlimited."
And: "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. We also recognize another important limitation on the right to keep and carry arms" —"prohibiting the carrying of 'dangerous and unusual weapons.' "
Justice Scalia does not say how federal courts should evaluate such regulations and the Supreme Court may need to return to this issue soon, to resolve a substantial disagreement that has arisen in federal appeals courts.
Does the court's 4-year-old ruling imply "a right to carry a loaded gun outside the home"? That is what the Seventh Circuit appellate court concluded last week in striking down an Illinois law that prohibited most people from carrying a loaded weapon in public.
Or does the Supreme Court's ruling on handguns support the view that public interest in safety outweighs an individual's interest in self-defense because gun rights are more limited outside the home? That is what the Second Circuit found last month in upholding a New York State law limiting handgun possession in public to people who can show a threat to their own safety.
Where "gun violence is a serious problem," as Justice Scalia said it is in the United States, the courts must be very cautious about extending the individual right to own a gun. The justice's opinion made that clear.
Read related editorials on gun control: rethinking guns and legislation abroad.
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