On Tuesday, the Supreme Court hears arguments in one of the most consequential cases of its term: Must Chicago and other locales drop their ban on handguns just as the justices forced Washington, D.C., to do two years ago?
If the high court decides yes, then state and local gun regulations across the nation could be shot full of holes. That’s why it’s so important for the justices to clarify not only where the “right to keep and bear arms” applies jurisdictionally, but how fundamental a right it is.
Is the Second Amendment right akin to First Amendment rights to free speech and the free practice of religion, which carry few restrictions? Or is it somehow a lesser right, subject to greater regulation?
This question is related to the case at hand – McDonald v. the City of Chicago – but it is not the issue immediately before the justices. What the plaintiff in the Chicago case wants to know is whether people living outside federal enclaves such as Washington, D.C., also have the individual right to own a gun for self-defense.
In the 2008 landmark case of the District of Columbia v. Heller, the justices ruled for the first time that gun ownership is an individual right – not just a right for militias. They overthrew Washington’s handgun ban, which was similar to Chicago’s, and allowed Richard Heller to have a gun in his home for self-defense. But the justices didn’t say whether this right extends beyond federal jurisdictions. Gun-rights supporters maintain that gun rights, like others in the Bill of Rights, must extend to the states.
Indeed, over the years the Supreme Court has applied the Bill of Rights to the states. But over a century ago, the high court held the Second Amendment as applying only to the federal government. Will it now rule otherwise, imperiling gun regulations across the land?
Doing so would raise the how-much-of-a-right question, which translates into a how-much-regulation question.
The National Rifle Association and its supporters maintain that the Second Amendment is a fundamental right, like free speech. Viewed through their scopes, “shall not be infringed” means no restrictions. For years, they’ve steadily pushed against infringements – successfully pressuring Congress in 2004 not to renew the assault weapons ban, and convincing states to pass conceal-and-carry laws (all but two allow it). As of Feb. 22, licensed gun owners may also take firearms into national parks and wildlife refuges (unless a state law says otherwise).
Despite aggressive efforts, however, the gun lobby has not been able to get very far in extending conceal-and-carry laws to America’s taverns and college campuses. The resistance from the states is reasonable and illustrates the case for gun regulation. Alcohol and lethal weapons such as guns pose too much of a danger to society when mixed, and they shouldn’t be. And police worry that if students arm themselves, law enforcement won’t be able to tell the difference between students on a rampage or students trying to defend themselves.
Firearms must be treated differently from free speech. Slinging guns is not the same as slinging slurs. Guns can kill a person, while any child can quote that “sticks and stones may break my bones but words will never hurt me” (except for yelling “Fire!” in a crowded theater, for which there is a restriction). In America, an average 300 people are shot or killed with a gun every day, including accidents. That doesn’t happen with speech.
In the Heller case, the justices in the majority recognized that gun rights are not unlimited rights. “Nothing in our opinion should be taken to cast doubt on long-standing 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,” said Justice Antonin Scalia.
Even so, the Supreme Court never announced exactly what standard of review courts should apply in gun cases. A “reasonableness” standard would give states and localities the flexibility they need to balance the right to self defense with the public’s right to safety.
Should the justices strike down Chicago’s handgun ban as unconstitutional, the city will still need guidance on how far it can go to keep guns out of the hands of criminals and to ensure responsible use of guns.