Friday, August 6, 2010

What do gun-rights decisions mean?

This is the second in a series of columns by Hailey attorney and former adjunct law professor Theodore "Ted" Graham on current issues involving the U.S. Constitution.


The Supreme Court in the last year handed down two decisions concerning the Second Amendment to the Constitution, which reads as follows: "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." Before these two decisions the court had only ruled once on the Second Amendment. That was in 1939 in the case of United States v. Miller, which upheld a law requiring sawed-off shotguns, a favorite weapon of gangsters, to be registered. So one might ask why after some 70 years do we see the court asked to interpret the Second Amendment. After all, guns are everywhere, as are regulations affecting ownership.

The first of these two new court decisions, District of Columbia v. Heller, did not come to the court's docket by accident. It got there through careful planning by the conservative CATO Institute, which considered unconstitutional a Washington, D.C., ordinance prohibiting the ownership of handguns based on a legitimate community concern about crimes involving guns. Dick Heller, a security guard with a clean record, was denied a permit to own a handgun.

There were generally two interpretations of the import of this amendment passed in 1791 as a part of the "Bill of Rights." In a 5-4 decision, the majority concluded that the D.C. ordinance was unconstitutional because there is a private right to own a handgun for self-defense. In direct contrast, the minority opinions, led by soon-to-retire octogenarian Justice John Paul Stevens, claimed this "right" was limited to serving in a militia (today's National Guard). Justice Antonin Scalia, for the majority, referred to Justice Stevens' analysis as "repulsive"—a more apropos description would have been "nonsensical."

The Heller case just dealt with the federal government's attempt at gun control (the District of Columbia is not a state). It had nothing to do with the constitutionality of any attempt by a state or its divisions (counties and cities) to ban gun ownership. The next Second Amendment case, McDonald v. Chicago, was decided on June 28, 2010. Same 5-4 majority, same result. Chicago's ban of handguns was ruled impermissible. But the decision had an additional element: It was based on the selective "incorporation" of the Second Amendment through the 14th Amendment, which specifically applies to the states. Not before this "incorporation" did the Second Amendment's guarantee of gun rights apply to the states. This incorporation process will be the subject of later articles.

I came upon an article written by a Harvard law professor claiming, by extrapolative hyperbole, that society would no longer be safe as a result of these two decisions. He must not have read the entire opinions. All "rights" are subject to reasonable limitations and restrictions and Justice Scalia in the Heller case and Justice Samuel Alito in the McDonald case said just that. States, counties and cities will continue to enact reasonable licensing requirements and other rules involving guns. In fact, the city of New York has concluded that its present rules need not be changed.

In conclusion, these two Second Amendment decisions are not going to be terribly important in the long run. The public, already accustomed to gun licensing, permits, rules and regulations, will feel little effect from these opinions.

That may not be the case when we review next time the impact of the recent Supreme Court decision invalidating most of the provisions of the McCain-Feingold bill limiting direct political contributions by corporations and labor unions.

Questions or comments can be e-mailed to Mr. Graham at:

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