I have frankly been surprised by the reaction to Sandy Hook. The details of these atrocities vary but we have shrugged off many of them in the past few years. What has stayed the same through many years now are the arguments of the various "sides", particularly the National Rifle Association. After each of these events they trot out the same old nonsense. Before Sandy Hook not much attention was paid to what they said. Nor was much attention paid to the arguments of various people disagreeing with them. The media had been quick to drop coverage after previous incidents because for years now reporters could recite the talking points of the actors almost word for word before they even opened their mouths. What has changed after Sandy Hook is that people are paying attention to what the NRA in particular is saying and reacting with outrage. This is different. I am at a loss to explain this change in behavior but I welcome it.
With that as background I would like to address a key component of the argument. Gun rights advocates argue that their rights are guaranteed by the Second Amendment of the U.S. Constitution. Is that really so? And, if so, to what extent? The Second Amendment is very short. So let me quote it in its entirety:
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.
That's it. That's the whole thing. Now conservatives are big on something called "strict constructionism". The constitution means what it says, they opine. Looking at the words my strict interpretation would be "if you are properly associated with a militia you can have guns". But what do I know? Not much, according to the U.S. Supreme Court. The Court opined on the subject in 2008. They ruled in a case usually abbreviated as "Heller". The actual title of the case is "District of Columbia et al., petitioners, v. Dick Anthony Heller". The docket is 07-290. You can read their opinion at http://www.supremecourt.gov/opinions/07pdf/07-290.pdf. The whole thing is 157 pages long. But the pages are paperback sized and it is written so that normal people can follow the important parts. So that is not as hard as you might think. I read it all the way through several years ago. Note: There was a follow on case which I have not read. But the consensus was that it broke no new ground. It was necessary because Heller was a District of Columbia case where there was no State involved. The second case involved a State (Illinois, I believe) but the second case essentially said the rules were the same. So what does Heller have to tell us about what rights the Second Amendment protects and what rights it doesn't? It turns out it tells us a lot.
The majority opinion was written by Justice Antonin Scalia, a very conservative justice and a well known "gun rights" advocate. The opinion can be broken down into three parts. Part one is a general discussion of what the words of the Second Amendment mean and what should happen in the absence of any gun regulation. Scalia's opinion contains a lot of interesting history and analysis. Justice Souter delivered a dissent to this portion of Scalia's opinion. The second part is the one that would come as the biggest surprise to gun rights advocates. Quoting Scalia directly, "Like most rights, the right secured by the Second Amendment is not unlimited." I will be getting back to the details that follow in a minute. The third and final part discusses whether the specific law passed by the District of Columbia is appropriate (constitutional) or not. Scalia said "not". Justice Breyer filed a dissent to this section.
So let me paraphrase the decision. Part 1 argues that there is a general right of pretty much everyone to keep and bear arms in the absence of sensible regulation. Part 2 argues that there is such a thing as a sensible regulation. Part 3 argues that the DC regulation was not sensible and therefore unconstitutional. So the whole thing boils down to a "pornography" argument. Paraphrasing the pornography version: I can't define sensible gun regulations but I know them when I see them. Generally speaking I was swayed by Scalia's argument in part 1 that in the absence of sensible regulation guns are always legal. There was no dissent to part 2 (there is such a thing as sensible regulation) so that obviously represents the unanimous opinion of the court. I was swayed by Justice Bryer's dissent in part 3. I am convinced that the DC regulation was sensible and, therefore, constitutional. But the majority disagreed.
Since the Heller case came down with the exception of the case I mentioned above there have not been any big gun rights cases argued in front of the Supreme Court. I think the reason is similar to the reason there have been no big pornography cases argued for many years now. In the case of pornography the Court came to see that it all boiled down to personal opinion and decided they were tired of playing that game. So they stopped taking cases. In the gun situation I think the analysis is the same, it's just coming from the other end. Instead of the court turning cases down plaintiffs are not filing them. They are just not comfortable risking that the court will disagree with whatever side of the "reasonable gun law" argument they are on. And this "not comfortable" position applies to both "pro" and "anti" sides.
Now I want to get into some more detail about what Justice Scalia had to say about what he thought was "reasonable". There are some surprises. He is in favor of "prohibitions on carrying concealed weapons". He also says "nothing in our opinion 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." He also is OK with the ban on "M-16 rifles and the like".
This last item is particularly interesting. A large portion of his opinion is devoted to militias. The U.S. military adopted the M-16 during the Vietnam War ('60s). They have recently replaced it with the M-4. But the M-4 is an "M-16 and the like" weapon. It is an M-16 with a shorter barrel, a modified stock (the part you put to your shoulder), and a few other minor changes to make it easier to carry around. Militias in the form of state National Guard units are typically equipped with the same weapon the military uses. This means M-16s and now M-4s. Militia members at some times and in some places have been responsible for providing their own weapon. Applied in the modern context this means that they would be required to provide an M-16 or M-4. The obvious argument sounds reasonable to me (if you adopt Scalia's analysis) and would justify the Second Amendment requiring that it be legal for ordinary citizens to purchase M-16s then and M-4s now. But Justice Scalia explicitly rejects that argument by unequivocally stating that is is constitutional to regulate the sale and possession of M-16s (and by extension M-4s) by ordinary civilians.
Justice Scalia also says 'We think that limitation is fairly supported by historical tradition of prohibiting the carrying of "dangerous and unusual weapons"'. What is a "dangerous and unusual weapon"? I have absolutely no idea. I could possibly come up with a definition. But I have no way of knowing whether the Supreme Court would agree with me. If I had to put money down I would bet that the court would come up with a different definition than I would. And I have no idea how the Court's decision would differ from mine. Also, like pornography, what constitutes "dangerous and unusual" is likely to change with time. Something like say a Thompson submachine gun (see any thirties gangster movie if you are not sure what I am talking about) has now been around for something like 80 years. I think most people would have characterized it as "dangerous and unusual" in the '20s and '30s. But would they now?
I am confident that pro-gun types would be shocked to find out what Justice Scalia thinks (or at least thought in 2008) are appropriate gun regulations. And certainly many anti-gun people would be pleasantly surprised to find out how much cover Justice Scalia provides to them. But I think everyone who has studied the actual situation carefully is in the same position I am. They do not know with any kind of confidence what the state of play is on the "gun law" front. Polls on people's positions on various gun regulation ideas have been static for a couple of decades. But they seem to be changing very quickly in our post Sandy Hook world. This adds even more confusion and uncertainty to the situation. It is too soon to predict that any new laws will actually make it through at the Federal level given our political environment. And who knows what the Supreme Court will think of what might come out? All I know for sure is that I don't know.
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