I never guessed I’d be writing about gun issues in the US twice in a week’s time. Last week I wrote about people hoarding bullets. In the heated comments that followed, I mentioned the last time I wrote about gun laws in the US, some 15 months earlier.
In 2008, I wrote about what I believe is a deeply flawed—and wrong—ruling by the Supreme Court, District of Columbia v. Heller, which said that people in DC had a constitutional right to own handguns and the District had no right or authority to ban handguns. At the time I predicted more lawsuits and, in fact, the gun lobby immediately filed a legal challenge to Chicago’s quarter century old ban on handguns. The US Supreme Court has just agreed to hear the appeal, McDonald v. Chicago.
After the Heller decision, he gun lobby immediately declared victory in the battle over gun control, something what was extremely premature. The District of Columbia is not a state or territory and is legally most similar to a slightly self-governing colony: Congress can, and often does, repeal laws passed by the District. This matters because the Second Amendment, over which the gun control battle is fought, has so far been seen to apply only to Congress and the national government.
This is, in part, because the First Amendment, which guarantees freedom of speech and religion, among other things, begins with the words, "Congress shall make no law…” The gun lobby argues that the 14th Amendment extends the Bill of Rights to the states. That Amendment first declares that all people born or naturalized in the US are citizens of the US and the state in which they live, then declares, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law…"
I happen to agree with the gun lobby on that one point. It seems pretty clear that the effect of the 14th Amendment is to ensure that citizens in all states enjoyed the same basic rights enumerated in the US Constitution. The Amendment came after the Civil War, and there was a desire (and perhaps a need) to ensure that the African Americans recently liberated from slavery wouldn’t be denied the full rights of citizenship. The fact that it took more than a century to even begin to achieve that—even in the North—doesn’t change what was pretty clearly the intent.
The real debate is still over the meaning of the wording of the Second Amendment: "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." Like most gun control advocates, I believe the phrase “well regulated militia” is the key; the gun lobby focuses only on the last fourteen words, even though the authors of the Constitution did not. Had those men been better writers or had editors, we might have avoided two centuries of arguments over what the amendment means.
While the City of Chicago expresses confidence that its law will survive, I can’t. The Bush/Cheney appointees, Roberts and Alito, were chosen specifically for their hard right views. The fate of Chicago’s law may ultimately rest on Anthony Kennedy, often a swing vote. Will he vote with the conservatives, as he did in the Heller case, or side with Chicago? Based on his record, he could vote either way. And how Sotomayor will vote is also not known.
Whatever happens, I doubt that this will be the last time I write about gun issues in the US.