The Supreme Ricochet Has Begun

Written by CFIF


July 13, 2008
Center for Individual Freedom
To say the Supreme Court term ended with a bang is quite an understatement.On the last Thursday in June, the marshal gaveled the Court into its summer recess, but not before the justices announced their decision in the D.C. gun ban case (a.k.a. District of Columbia v. Heller, No. 07-290).

Of course, as the whole country knows now, the Supreme Court struck down D.C.’s gun laws, which were the most restrictive in the nation. And, literally within minutes, that landmark Second Amendment ruling had the metaphorical effect of firing a starter pistol in a constitutional race to determine what freedoms and rights are guaranteed by the Second Amendment. (We might add, just as we explained in “Supreme Ricochet.”)

The result came as little surprise to Supreme Court watchers and reporters. The questions asked by the justices during the oral argument in March strongly suggested that at least five justices believed the Second Amendment guaranteed an individual’s right “to keep and bear Arms.” And, those same five justices -- Chief Justice John Roberts, along with Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito -- also seemed skeptical of D.C.’s complete ban on handgun ownership and possession.

But the justices also noted reasons for restraint at the oral argument. Most notably, during the Solicitor General’s argument, in which he urged the Court not to imperil existing federal firearm restrictions and regulations, Chief Justice Roberts commented that maybe the High Court should limit itself to deciding just the D.C. case.

“I wonder why in this [D.C.] case we have to articulate an all-encompassing standard,” the Chief Justice wondered aloud. “I’m not sure why we have to articulate some very intricate standard. I mean, these [constitutional] standards … just kind of developed over the years … But I don’t know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case.”

The landmark decision that resulted reflected just this balance -- announcing “that the Second Amendment conferred an individual right to keep and bear arms,” while reserving judgment on other firearm restrictions and regulations not at issue in the D.C. case. In other words, the Supreme Court decided the big Second Amendment question and left numerous smaller ones for another day.

The author of the decision, Justice Scalia, made it clear that, while the justices were “aware of the problem of handgun violence …, the enshrinement of constitutional rights necessarily takes certain policy choices off the table” in addressing those concerns. This meant that “the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”

Indeed, the unprecedented nature of the decision was underlined by the fact that it was the first time that the justices had ever struck down a firearm restriction or regulation for violating the Second Amendment.

On the other hand, the decision not only left room for gun regulations that would be consistent with the Second Amendment but also left unresolved any number of questions about just how far such restrictions could go. Indeed, Justice Scalia specifically noted that “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.”

Justice Scalia also observed that the decision also “recognize[d] another important limitation on the right to keep and carry arms” -- namely, “that the sorts of weapons protected [a]re those ‘in common use at the time.’”

The numerous questions left open by the Heller decision will be ricocheting for years through not only the courts, but also the White House, the Congress, governor’s mansions, state legislatures, mayor’s offices and city councils nationwide. Indeed, precisely that point was made in black-and-white -- not to mention promptly filed -- in the minutes, hours and days after the High Court issued its opinion.

In the immediate aftermath of the Heller decision, several gun rights organizations, including the National Rifle Associations and the Second Amendment Foundation, filed multiple suits seeking to strike down other gun restrictions across the country. There were challenges to gun bans in and around metropolitan Chicago, and a challenge to the gun ban in public housing in San Francisco -- and those are just the first such cases to be filed, with many more all but certain. Judges with cases already pending also have to consider whether the individuals involved are protected by the Second Amendment.

All of this is the long way of saying that, while it may have been nearly 70 years since the Supreme Court had directly considered the constitutionality of a gun law under the Second Amendment, the justices won’t be waiting another 70 years. The supreme ricochet has begun.
Founded in 1998, the Center for Individual Freedom is a non-partisan, non-profit organization with the mission to protect and defend individual freedoms and individual rights guaranteed by the U.S. Constitution.

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