During oral arguments March 18 on a historic case, a majority of the Supreme Court indicated it sees gun ownership as a right. Nonetheless, their ruling, due by July 1, will also likely restrain such a right, igniting a critical national debate only four months before the election.
Just on its own, a ruling that the gives Americans the same inalienable right to gun ownership as to freedom of speech could send shock waves into the campaigns for president and Congress – campaigns that have largely dodged talk of gun limits up to now. In a country that sees an average of 80 gun deaths a day and, recently, mass killings by firearms almost once a year, this ruling probably won't settle the debate.
The nation has gnawed on the Second Amendment for two centuries with no clear-cut decision by the high court. Yet a majority of the justices may now claim historical clairvoyance on the framers' intent regarding militias and gun ownership. And they may overreach for grammatical acuity into the amendment's ambiguous, oddly punctuated wording. ("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.")
Even as the majority appear poised to assert a right, the justices also seemed eager to explore limits. Chief Justice John Roberts warned against an "all-encompassing" ruling that would apply to every gun law. One reason for such hesitation may be a key argument from the National Rifle Association that an absolute gun right is necessary to allow citizens to rise up against a future "tyranny" in this democracy. That threat of insurrection could even apply against a Supreme Court that denies a right to bear arms.
Such a possibility must give the justices pause and provide a perverse incentive to proclaim a gun right. The court might recall last year's shootings at a Missouri city council by a man out to avenge the perceived wrongs of government. Five officials died.
Recognizing an absolute right to guns could kill other rights and give freedom to deny other freedoms.
The NRA has paid out nearly $20 million in campaign donations since 1990, and Democrats decided after the 2000 election that it's better not to speak strongly for restraints on gun ownership. Both Barack Obama and Hillary Clinton have dropped past support for licensing gun owners and registration of new guns. John McCain is the more pro-NRA and says the Second Amendment should be protected from "political vagaries," but even he supports background checks on people who buy weapons at gun shows.
Right or no right, politicians are now more constrained by the political power of the NRA than the courts, but that may soon change. And as Mr. Obama points out: "We essentially have two realities when it comes to guns in this country. You've got the tradition of lawful gun ownership....[A]nd then you've got the reality of public school students who get shot down...."
No constitutional right has a winner-take-all quality to it. The court may now shift the balance toward the interests of gun owners, but it already knows that its primary role is in balancing rights, not sticking the barrel of one right into everyone's face.