Second Chances

By the Editors
National Review Online

http://www.nationalreview.com
June 26, 2008 2:50 PM

For decades, localities around the country — the capital, New York City, Chicago, and many of its suburbs — have violated their residents’ right to keep and bear arms. Each of these locations directly or indirectly bans handguns.

Today the Supreme Court, in a ruling that is faithful to the Constitution, struck down the handgun ban in the nation’s capital. This ruling is the beginning of a long process — it will not affect bans in Illinois or New York — but is a good sign in itself.

Some have alleged that this ruling is merely judicial activism from the right. Judicial activism, however, entails going beyond what’s in the Constitution — “finding” new rights, or stretching words past their plain meaning. By contrast, Antonin Scalia’s majority opinion simply affirms what anyone fluent in English would conclude after reading the constitutional text at issue: The Second Amendment protects an individual right.

The Amendment reads, “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.” As the opinion translates, this means, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” This is not at all the same as saying that only militia members can bear arms, or that “the people” can only bear arms for militia-related purposes. The latter clause describes the right and describes it as belonging to “the people,” while the former merely announces a purpose.

What’s more, the opinion explicitly recognizes the difference between legislating and judging. In the ruling’s final paragraph, Scalia writes that the majority takes “seriously the concerns raised by the amici who believe that prohibition handgun ownership is a solution” to gun violence. However, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Scalia’s opinion, which is in many ways quite narrow, leaves ample room for legislation regulating concealed-carry, the types of firearms that are permissible, and the conditions under which firearms are sold. Scalia reaffirms that the Supreme Court determines not whether policies are good, but whether policies are consistent with the Constitution.

Unlike the Supreme Court, we are not limited to the constitutional questions, and can say without reservation that handgun bans are no solution to gun violence. D.C.’s ban came into being in 1976; it caused no obvious drop in the crime rate and, when the drug wars hit a decade later, it did nothing to curb the bloodshed. In 2003 the Centers for Disease Control — a reliably antigun outfit — found itself unable to muster any evidence that gun control reduced crime. The National Academies of Science followed suit the next year.

We congratulate the Second Amendment movement’s success. The lawyers who argued the case, interested parties who filed friend-of-the-court briefs, and many others rose to the occasion. But their battle is not over.

The Constitution is designed to be a restriction on the federal government only. It was the Fourteenth Amendment that (as interpreted) applied many Bill of Rights provisions to state and local governments. Since D.C. is an enclave of the federal government, this lawsuit did not ask the court to decide whether the Fourteenth Amendment incorporates the Second.

And even if outright bans were to be found unconstitutional throughout the U.S., it would remain unclear exactly what kinds of gun control remain acceptable. We see no reason why the Second Amendment shouldn’t be incorporated, and this ruling seems to indicate that gun control will face an uphill battle before the Supreme Court. But we’ll hold off declaring victory until the high Court has further elaborated its jurisprudence on this issue.