When Reason Meets Rifles

This week the Supreme Court will hear arguments in the most important gun-control case in 69 years. And almost lost amid all the political posturing on both sides of the case about the constitutional contours of the "right to bear arms" is the quiet, crucial fact that the high court is about to step into a cultural conflict for the first time in 69 years.

Think about it: abortion, homosexuality, affirmative action, separation of church and state, the death penalty. The court has waded into almost every hot-button social issue dividing this country.

And both conservatives and liberals suspect that in doing so, the high court has messed things up. Its most acerbic conservative, Justice Antonin Scalia, says the court should not conduct itself like an unelected superlegislature. It's not for the court to invent new rights, it's for the people: "You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it."

A growing number of legal thinkers, including the University of Chicago's Cass Sunstein, agree that judicial "minimalism" is preferable to resolving sprawling social problems with broad moral judgments. Many of the country's pre-eminent liberal scholars believe that matters as important as abortion and segregation were better left up to the democratically elected branches; that the broad brushstrokes of the Warren Court launched a backlash still being felt today.

With District of Columbia v. Heller, these court critics may have fished their wish. The case tests the constitutionality of D.C.'s sweeping gun ban prohibiting handgun possession at home unless guns were registered before 1976, and requiring all guns—including rifles and shotguns—to be unloaded and either disassembled or bound by a trigger lock. Last year, by a 2-1 vote, a federal appeals court struck down the ban, claiming that the Second Amendment confers upon "the people" an individual right to bear arms, rather than a collective right to arm its militias.

Still, the most dramatic aspect of Heller may well be that the last time the Supreme Court issued a major proclamation on the right to bear arms, it was 1939 and the criminals in question sported fedoras and drove Packards. That makes this case a natural experiment in what happens when the Supreme Court butts out. If the gun fight is any indication, it's not clear democracy moves to the driver's seat when the court lets go of the wheel.