The Supreme Court decision to uphold the ruling of a lower court which struck down a Washington DC law banning handgun ownership as unconstitutional is a bigger set back to American law and public safety than first meets the eye.
To many Americans the court's actions may make sense because even liberal publications often refer to the Second Amendment as if it speaks simply of a "right to bear arms." Actually the text reads, "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." You may say the text is ambiguous given that it speaks first about a militia and then about people. However, until this year, whenever this issue reached the highest court of the land, in cases that span nearly 125 years, the court ruled that there is no constitutional barrier to limiting or removing guns owned by individuals. It is this long accumulation of legal judgments which now has been undermined by a court loaded with conservatives.
In an overview of all the cases before 2008 none other than Erin N. Griswold, solicitor general in the Nixon administration, and former dean of Harvard Law School, noted:
"Never in history has a federal court invalidated a law regulating the private ownership of firearms on Second Amendment grounds. Indeed, that the Second Amendment poses no barrier to strong gun laws is perhaps the most well settled proposition in American constitutional law."
The relevant Supreme Court cases are United States v. Cruikshank (1875); Presser v. Illinois (1886); Miller v. Texas (1894); United States v. Miller (1939); Lewis v. United States (1980); Quilici v. The Village of Morton Grove (1983); Higgins v. Farmer (1991); and Printz v. United States (1997). Though the details of these cases vary, and like all such cases they are subject to different readings, the decisions reached in all of them fundamentally affirm that the Constitution does not limit the states' ability to restrict private gun ownership.
For instance, in United States v. Miller, the most often cited of these cases, Jack Miller had not properly registered his sawed-off shotgun, nor had he paid a tax for transporting this weapon in interstate commerce, both required under the 1934 Firearms Act. Miller claimed that the Act violated his Second Amendment rights. The Court ruled that because Miller could not prove that his shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."
Seems plain enough. But when I wrote previously about this subject I received a storm of critical emails. Many of the responses were composed merely of cuss words strung together, of the kind one would expect to find in a poorly kept public toilet. Some readers, though, offered actual arguments. They quoted Washington, Jefferson, Madison, and George Mason to show that our founding fathers were proponents of private gun ownership. My response is that ours is a government by laws which cannot be trumped by quotations from even the most highly regarded patriotic icons.
Recently some social scientists have claimed that their studies show that the more guns private citizens have, the lower the crime. These are the results of highly manipulated models, not actual empirical research. If one compared the murder rates in nations in which there is next to no private ownership of guns (such as the UK and Canada) one sees that for decades, they had much lower murder rates. Ditto for other kinds of violent crime.
The NRA argument that criminals kill people, not guns, ignores the fact that guns make it much easier for a person to kill scores of others than say knives or wrenches, to which guns are often compared. Moreover, one must note that guns in the house are more likely to be used by one spouse against another, or discharged accidentally, or to endanger children -- than ever be used against a criminal. In fact, for every justified use of a gun in the home, there are about 22 criminal or unintended shootings.
One can but hope that the recent Supreme Court ruling will not open the door to a widespread relaxation of laws in other cities or states which limit the availability of dangerous weapons. While unclear, the Supreme Court's decision does not deny that cases may be made for state limitations on the possession of firearms. However, by reversing course in the Court's history of interpreting the Second Amendment, it is likely to impose an unwelcome burden on attempts to improve public safety.
Amitai Etzioni is University Professor and director of the Institute for Communitarian Policy Studies at George Washington University. His most recent book is Security First (Yale 2007) www.securityfirstbook.com email: comnet@gwu.edu
For more on Second Amendment issues: http://dspace.wrlc.org/handle/1961/587