Protection or Peril: The Supreme Court and Gun Control

by James R. Nowlin III, Esq.
March 28, 2008
Gun ControlIn today’s quickly changing world, it is not easy to ignore the role that firearms play in daily life. Massacres on college campuses, a person opening fire at a shopping mall — the question of how to prevent these types of tragedies pulsates through our nation’s conscience.
The Second Amendment states: “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.” On March 18, 2008, the Supreme Court heard oral arguments in District of Columbia v. Heller on the issue of whether the Second Amendment supports an individual’s right to bear arms. It proved one of the most significant hearings regarding gun control in decades, and the Court’s eventual ruling could spark constitutional challenges to gun-control laws across the nation.
The facts in Heller involve the challenge of a Washington, D.C., resident and Army veteran who, employed as a security guard, carries a gun for a living. District law, however, prohibits him from having a gun for protection, despite the fact that the district has one of the highest per-capita murder rates in the country. In fact, Heller frequently hears gunfire from his Capitol Hill-area home.
During arguments in Heller, the Court considered whether the district’s gun-control statute “violate[s] the Second Amendment rights of individuals who are not affiliated with any state-regulated militia but who wish to keep handguns and other firearms for private use in their homes.” Regardless of how the Court decides this issue, significant questions about the future direction of gun-control legislation will remain.
An array of scholars and legal experts with different political views have submitted briefs arguing that the Second Amendment protects an individual’s right to bear arms. The general rationale for this position is that the Supreme Court has interpreted the other provisions in the Bill of Rights as protecting individual rights, so the Second Amendment should be no exception. Some supporters of the individual right to bear arms also argue that criminals always will have guns; therefore, citizens should have the right to bear arms and protect themselves in their homes.
Supreme Court recognition of an individual right to bear arms may thwart future efforts to restrict gun ownership; however, important questions will remain regarding how far that individual right extends and what, if any, limits to that right exist.
If, on the other hand, the Court rules that the Second Amendment applies only to the collective right of states to assemble groups of armed citizens, then efforts to restrict handgun ownership will be strengthened. Most scholars agree, however, that this interpretation of the Constitution likely would allow for reasonable regulation as opposed to an outright ban on gun ownership. The form and extent of such regulation would undoubtedly continue to be shaped by the courts and legislatures.
Many officials in large cities believe that firearm bans or restrictions are necessary to prevent gun violence, arguing that gun violence decreases when fewer guns are on the streets. This argument relies in part on the assumption that increased gun control in a particular area reduces the ability of local criminals to obtain firearms. In reality, however, urban areas such as the District of Columbia struggle to stem the incoming flow of illegal gun trafficking from nearby Virginia and Maryland, jurisdictions over which the district has no control.
The most challenging part of the Court’s ruling will be balancing citizens’ right to protect themselves with the goal of creating a safer society. This balance will be achieved only if firearms are not more easily available to criminals than to other citizens.