THE BLOG
07/06/2008 05:12 am ET Updated May 25, 2011

Scalia's Choice: More Deaths to Defend the Constitution

Congratulations, Justice Scalia! After almost 220 years during which millions of Americans have kept guns around the house, Scalia and the rest of the Supreme Court's conservative majority finally decided that Americans have a constitutional right to keep guns around the house for "the defense of hearth and home." Now we can all look forward to years of arguing over just exactly when, where and how that right applies.

The Supreme Court's 5-4 ruling "was unsurprising, harmful -- and defensible," said a headline over a column expressing that view on the Washington Post's website. Unsurprising because seven of the court's nine justices -- including all five in the majority -- were appointed by Republican presidents whose party has been trying for decades to gain that right. Harmful, because 30 thousand Americans are killed by guns each year with only some 200 million shooting irons around in the land, and the court's decision promises to add millions more firearms.

Defensible because of the Second Amendment's ambiguous assertion that "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." Those words have caused so much controversy and confusion for so long that it was inevitable that one day the part about people's right to bear arms would overpower the part about a militia, especially because militias went out of style long ago. And because millions of Americans love their guns and fear their fellow citizens -- not to mention foreign terrorists, especially since 9/11. And because the arms they bear make up a big business, promoted by the National Rifle Association, one of the nation's most powerful lobbies.

In recent years, even some liberals have come around to the view that there is such a thing as an individual right to own a gun. One is columnist Michael Kinsley. In a column in the Washington Post in February 1990, Kinsley observed that while liberals typically insist on broad interpretations elsewhere in the Bill of Rights, they are downright restrictive about the Second Amendment, insisting (as did the four liberal justices in this week's minority) that it grants only a collective right to have a gun as part of an organized militia, rather than an individual right to own one. Kinsley quoted his then-colleague Mickey Kaus on the New Republic magazine as saying "that if liberals interpreted the Second Amendment the way they interpret the rest of the Bill of Rights, there would be law professors arguing that gun ownership is mandatory." In fact, of course, the opposite has long been true.

Take, for example, that liberal stronghold, the American Civil Liberties Union. Law professor Nadine Strossen, who just stepped down after 17 years as president of the ACLU, was fond of saying: "Our client is the Bill of Rights." The ACLU and other liberals regularly rush to the barricades to defend the First Amendment's freedoms of religion, speech, press and assembly; the Fourth Amendment's strictures against unreasonable search and seizure, the necessity for probable cause and warrants (note their fierce battle against Bush's warrantless wiretapping); the Fifth Amendment's insistence on due process and against double jeopardy and self-incrimination; and the Sixth Amendment's demand for a speedy, public, jury trial, the accused's rights to counsel, to know the charges against him and to challenge prosecution witnesses. But as for Amendment Number Two, the ACLU's Policy #47 states unequivocally: "Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected."

But some other liberals have followed Kinsley's lead. As conservative columnist Jonah Goldberg pointed out gleefully last year, "various liberal legal scholars have come to grudgingly accept that the Second Amendment's meaning and intent include the individual right to own a gun." Goldberg pointed to a New Republic article in March 2007 by liberal legal scholar Benjamin Wittes of the Brookings Institution, written just after the Federal appeals court issued its decision on gun ownership that was just agreed to by the Supreme Court.

Wittes wrote: "the simple truth is that the individual-rights view is in intellectual ascendancy, and not just among gun-loving wing nuts." As evidence of that, he quoted three liberal law professors:
• Laurence Tribe, who wrote that the Second Amendment recognizes "a right...on the part of individuals to possess and use firearms in defense of themselves and their homes."
• Sanford Levinson, who wrote that it "will no longer do" to treat the amendment "as the equivalent of an embarrassing relative," and
• Akhil Reed Amar, whose history of the Bill of Rights says that after the Civil War, "gun-toting was individualistic, accentuating not group rights of the citizenry but self-regarding 'privileges' of discrete 'citizens' to individual self protection."

To which Wittes added his own idea: "It's time for gun-control supporters to come to grips with the fact that the amendment actually means something in contemporary society. For which reason, I hereby advance a modest proposal: Let's repeal the damned thing." After which he conceded that repeal "is politically impossible right now."

Just one year later, after hearing the oral arguments before the Supreme Court, Wittes wrote another article. Convinced, as it turned out, that the court would recognize an individual right of gun ownership, he found something of a silver lining: "Any right to keep and bear arms that the court recognizes," he wrote, "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."

Some parts of the high court's decision tend to confirm Wittes's prediction.
"Nothing in our opinion," Justice Scalia wrote, "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or 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." The decision also said that bans on concealed weapons would be upheld as well as those on undefined "dangerous and unusual weapons" (apparently, no nukes, or even bazookas, will be permitted in the family garage and, the Bush administration hopes, no machine guns either).

The court said its list of restrictions was not meant to exclude others. But just what those others are is way up in the air, and will likely take years and dozens of cases to determine. As Justice Stephen Breyer said in one of two dissents, the decision "threatens to throw into doubt the constitutionality of gun laws throughout the United States."

And what about any lethal consequences of the decision? Scalia wrote that the majority justices are "aware of the problem of handgun violence in this country" and "take seriously" arguments for banning handgun ownership. "But the enshrinement of constitutional rights necessarily takes certain policy choices off the table," he added. Would it were politically possible to amend the Second Amendment out of existence! But the new decision makes that even more undoable than before. So the ruling, however legally defensible, will add to a U.S. homicide rate that's already, by far, the highest in the Western world.