For gun controllers, the bad news is that the Supreme Court Monday ruled for the first time that the right “to keep and bear arms” in the U.S. Constitution’s 2nd Amendment restricts state and local power to impose gun controls.
The good news for gun control is that this new-found right may not restrict gun-control laws very much.
The 5-4 decision does appears to doom the exceptionally strict bans imposed by Chicago and Oak Park, Ill., on possession of handguns, even in the home for self-defense, that were before the court in the case at hand. A strict New York City handgun ban may also fall.
But no statewide gun-control law appears to be in immediate jeopardy, because nothing in Justice Samuel Alito’s majority opinion appeared to undercut the court’s assertions in a 2008 decision striking down a similarly strict handgun ban in the District of Columbia that a wide range of less stringent gun-control laws could be upheld as reasonable public-safety measures.
"We made it clear in Heller," Alito wrote, "that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill,' '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.' We repeat those assurances here."
The 2008 decision held for the first time that the 2nd Amendment restricts federal gun-control laws by guaranteeing an individual right to own a gun for self defense, and not merely for service in the now-defunct state militias, as the four dissenters had argued.
Because the District of Columbia is a federal enclave, the 2008 decision did not resolve whether the 2nd Amendment also restricts state and local gun-control laws. That was the issue resolved by Monday’s decision.
The court split in both decisions along the 5-4 conservative-liberal line that has become so familiar, with the ideologically eclectic Justice Anthony Kennedy joining the four-justice conservative bloc.
Today’s decision was McDonald v. City of Chicago. The 2008 decision was District of Columbia v. Heller.
The majority, the two concurring opinions, and the two dissenting opinions in McDonald consumed 208 pages. The learned, historically rich debate focused the extent to which the post-Civil War 14th Amendment had been designed to apply—“incorporate,” in legal lingo—to the states and their localities the 2nd Amendment and other provisions of the Bill of Rights.
Those provisions had originally restricted only the federal government. The court has previously applied almost all of the first 10 amendments to the states and their localities except the 2nd Amendment.
In holding that the 14th Amendment was intended to apply the 2nd Amendment to the states, Justice Alito stressed especially the evidence that the framers of the 14th Amendment wanted to prevent Southern white racists from disarming freed slaves, the better to subjugate them.
Ninety-year-old Justice John Paul Stevens, in his last day of his 34 years on the court, wrote one dissent and Justice Stephen Breyer wrote the other, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.
In a day of unusual solemnity at the Court, Chief Justice John Roberts began the session with a tribute to Justice Ginsburg’s husband Martin Ginsburg, who died Sunday. Roberts ended the session with a tribute to Justice Stevens. “We will miss your wisdom, your perceptive insights, and vast life experience, your unaffected decency, and resolute commitment to justice,” Roberts said to Stevens.
The Court also issued three other important decisions Monday, including a patent decision of enormous importance to the business community and software companies especially.