Supreme Court Decision on Gun Rights: Individuals Over Collectivities


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.–United States Constitution, Bill of Rights, Second Amendment

Legal scholars, political scientists, historians, and activists on both sides of the gun-rights/gun-control issue have debated the precise meaning of this sentence for as long as I’ve been alive and well before that. Gun-control advocates often refer to the “militia clause” of the amendment, claiming the Constitution guarantees the right to bear arms only to government regulated bodies, state militias. Gun-rights organizations have continually countered that Framers notion of “the people” referred to individuals, not collectivities.

The Supreme Court, which has been close to silent on this issue for two centuries, has ruled a Washington, DC ban on handguns unconstitutional. The Court’s landmark 5-4 decision ruled the Second Amendment guarantees an individual’s constitutional right to keep and bear arms. This is the first time the Court has placed gun rights on a similar plane as the right to free speech, a right accorded explicitly to the individual, not to groups.

Justice Antonin Scalia, writing the opinion for the majority said an individual right to bear arms exists and is supported by “the historical narrative” both before and after the Second Amendment was adopted. Scalia added, the ruling should not “cast doubt on long-standing prohibitions on the possession of firearms by felons or the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”

This decision opens the doors for similar bans to be overturned in New York, California, Massachusetts, and other states. The NRA is gearing up for lawsuits in Chicago in San Francisco. Gun-control advocates fear the ruling will facilitate the elimination of background checks, fingerprinting and registration fees. Columbia Law School Professor Nathaniel Persily, reflecting his disappointment with the decision said, “The NRA has its precedent, and now it’s going to use it to try to strike down various restrictions around the country.” Professor Persily added, “We don’t know what the next shoe to drop will be.”

March Sherman (AP) notes:

The reaction broke less along party lines than along the divide between cities wracked with gun violence and rural areas where gun ownership is embedded in daily life. Democrats have all but abandoned their long push for stricter gun laws at the national level after deciding it’s a losing issue for them. Republicans welcomed what they called a powerful precedent.

Given the general failure of gun-control in urban areas I am wonder why so many clear-thinking people would stick to these policies. Much of it is fear, the notion that more guns in the community cannot lead to any positive outcome and will only result in more gun violence. Yet DC has had gun-control for three decades and regularly leads the country in incidences of violent crime. And when the “assault-weapons” ban ended in 2004, there was no spike in violence associated with semi-automatic rifles. I suspect similar results in DC.

The strongest argument made by gun-control advocates are the statistics comparing the likelihood of using your gun in self-defense versus it being used accidentally or willingly by someone in your home. Watching the local news in NYC it is a fairly regular occurrence to read about a child killed accidentally, usually in play. These events are extremely tragic and for many, getting rid of guns is the answer. As Professor David Hemenway at Harvard’s School of Public Health states:

The scientific evidence is very strong that raising the speed limit increases deaths, as does repealing motor cycle helmet laws. The scientific evidence is also very strong that, all other things equal, more guns in the United States means more death– more homicide, more suicide, more unintentional gun deaths.

One thing that has been disconcerting to me is some of the discussions–among family, friends and colleagues, on C-SPAN and blogs–point to a fundamental misunderstanding about the Declaration of Independence, Constitution and Bill of Rights. First and Second Amendment advocates will often argue that these amendments provide their right to free speech or the right to own arms. However, according to the Declaration of Independence, the right to free speech and self-defense are ours naturally as human beings and given to us by our Creator:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness…

The First and Second Amendments delineate the role of government by proscribing what government cannot do. The Framers recognized the government is not granting anyone these rights as they are ours at birth. This is not simply a theoretical or semantic matter. It leads to fundamentally different conceptions about rights and where they originate. It also leads to a different idea about the state and the function of public policy than in many other countries.


District of Columbia et al v. Heller

LA Times: Supreme Court Affirms Gun Rights

New York Sun: After Nine’s Gun Ruling, N.Y.’s Gun Laws May be Next

NPR: McCain Praises Gun Ruling, Obama More Cautious

Dave Workman: Court ruling protects our gun rights

4 responses »

  1. Interesting take on it.

    I’m happy with the ruling and have no problem with more cities (and states) opening up.

    Restricting the majority for the actions of a few is not right.

  2. Going back to a previous conversation NC, I find that the state of our working class and poorer communities to be a crime against the people that live there. It is a travesty that working people living in our cities “ghettos” have to be subjected to constant criminal harassment. I am thankful that the Supreme Court ruled in favor of the rights of each law abiding individual to posses a firearm. Asking someone who works in a crime ridden neighborhood to not protect themselves accordingly would be a travesty, as I truly believe that when guns are outlawed, only the outlaws will have guns. And I don’t plan to throw people in those communities to the wolves.

  3. Self-defense (and defense of one’s family) is an instinctive response in most healthy humans. Whether one views it as a right provided by the Creator or as human nature the Framers of the Constitution recognized that no government could give this right to Americans, it was our birthright as free men.

    To Roland’s comment, things are bad in many poor and working-class communities throughout the United States. While liberal policy makers call for gun restrictions, law-abiding citizens in these neighborhoods simply wish to be able to legally protect themselves. SF’s law against gun ownership in public housing is being challenged by a gay man who is fearful of hate-crimes. Ironically, it is pro-gay mayor Gavin Newsome who is standing in way of this man to defend himself.

    Policing is also an issue. I can’t tell you how many times I’ve heard people tell me they want a police presence in their neighborhoods to keep crime down just as the middle-class folks have it. I’m sure you are familiar with the difference in the number of visible police officers in Berkeley, CA as compared to Oakland which is right next door. You can’t drive from point A to point B in Berkeley without seeing at least one patrol car. In Oakland, you can drive all day.

    But, at the same time as there are real problems I’ve also seen improvements–serious improvements–in areas that used to be free-fire zones. I used to hear multiple gun shots every weekend (and at least once during the week) in my place out in Oakland. Now, while not completely squeaky clean, it is much safer. And even recognizing the decline in the housing market, homes that were purchased in the late 1980s for the low 100,000s are now selling for five to six times that amount.

    African-Americans who moved out from the South and bought in the 1950s-1960s for like $10-20,000 are selling them for 500-600k. In light of all the bad news in the housing market, you don’t often hear success stories like this. Working-class folks who bought property, renovated and improved the property, and sold it for a tidy profit. I know, it is capitalist behavior unfit for the working-class to make money in this manner, blah blah blah…

  4. “Working-class folks who bought property, renovated and improved the property, and sold it for a tidy profit.”

    Reminds me of my grandmother’s home in Oakland. They bought it in the 50s soon after they came over from Europe, as the housing was built specifically for new working class families. The neighborhood is sadly not what it was when my father was growing up, but when I consider the price of the property now compared to what my family paid for it, it blows my mind.

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