What Happens If the Supreme Court Recognizes Individual Gun Rights? Not Much.

The New Republic, March 21, 2008

One thing seemed clear from Tuesday’s Supreme Court oral arguments in District of Columbia v. Heller: The justices are poised to recognize that the Second Amendment confers on individual Americans the right to own guns. The court’s conservatives–save Justice Clarence Thomas, who maintained his customary silence at arguments–evinced little doubt of this proposition. And even Justice Stephen Breyer seemed open to the possibility that the amendment’s right to “keep and bear arms” isn’t just about militias–though he’s inclined to uphold the D.C. handgun ban anyway. After more than two centuries of judicial negligence and intellectual head-scratching, the Second Amendment seems preponderantly likely to mean something. All of which makes Heller a kind of watershed in the making.


Or maybe not.

For something else became clear at oral argument–something that actually has been coming into focus since a lower court tossed out Washington’s handgun ban and the briefs began winding their way to the justices: Any right to keep and bear arms that the court recognizes is not going to do all that much. Specifically, it won’t preclude the sort of reasonable regulation of firearms ownership that makes up most existing gun control laws.

So what will this landmark decision actually change?

Undeniably, a decision recognizing an individual right to gun ownership will put a limit on how far gun control can go. Those who dream of a gun-free society will have to dream of ratifying a new constitutional amendment; they will no longer be able to ignore that embarrassing provision of the Bill of Rights that they have, for so long, been able to argue does not mean what it so plainly seems to say. A decision recognizing the Second Amendment as an individual right will also force authorities at all layers of government to justify before the courts the benefits of crime control and public safety measures that restrict guns against a countervailing interest. And the courts will have to balance the safety benefits against a recognized right that citizens will, citing a Supreme Court opinion, claim is being impinged.

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