Gitmo Nation Update: Gun Shy

On Monday the Supreme Court
ruled that the Second Amendment applies to states and cities as
well as the federal government. Judging from their objections, the
four dissenters were still reeling from the Court's landmark 2008

decision recognizing that the amendment protects an individual
right to keep and bear arms.

In their dissenting opinions, Justices
John Paul Stevens and
Stephen Breyer (joined by Ruth Bader Ginsburg and Sonia
Sotomayor) worry that overturning gun control laws undermines
democracy. If "the people" want to ban handguns, they say, "the
people" should be allowed to implement that desire through their
elected representatives.

What if the people want to ban books that offend them, establish
an official church, or authorize police to conduct warrantless
searches at will? Those options are also foreclosed by
constitutional provisions that apply to the states by way of the
14th Amendment. The crucial difference between a pure democracy and
a constitutional democracy like ours is that sometimes the majority
does not decide.

Likewise, Stevens defends "state and local legislatures' right
to experiment," while Breyer is loath to interfere with "the
ability of States to reflect local preferences and conditions—both
key virtues of federalism." Coming from justices who
think Congress can disregard state decisions about the medical
use of marijuana because a plant on the windowsill of a cancer
patient qualifies as interstate commerce, this sudden concern about
federalism is hard to take seriously.

Another reason to doubt the dissenters' sincerity: They would
never accept federalism as a rationale for letting states
"experiment" with freedom of speech, freedom of religion, or due
process protections. Much of their job, as they themselves see it,
involves overriding "local preferences" that give short shrift to
constitutional rights.

Second Amendment rights are different, Breyer says, because
"determining the constitutionality of a particular state gun law
requires finding answers to complex empirically based questions."
So does weighing the claims in favor of banning child pornography
or depictions of animal cruelty, relaxing the Miranda
rule, admitting illegally obtained evidence, or allowing
warrantless pat-downs, dog sniffs, or infrared surveillance.

When they decide whether a law or practice violates a
constitutional right, courts cannot avoid empirical questions. In
cases involving racial discrimination or content-based speech
restrictions, for example, they ask whether the challenged law is
"narrowly tailored to serve a compelling state interest" and is the
"least restrictive means" of doing so.

But unlike equal protection or freedom of speech, Stevens says,
"firearms have a fundamentally ambivalent relationship to liberty."
How so? "Just as they can help homeowners defend their families and
property from intruders," he explains, "they can help thugs and
insurrectionists murder innocent victims."

Every right can be abused, with results that are immoral,
illegal, or both. Freedom of speech can be used to spread hateful
ideas, promote pernicious political philosophies, slander the
innocent, or engage in criminal conspiracies. If there were no
potential for harm from exercising a right, there would be no need
to protect it, because no one would try to restrict it.

The dissenters' most frivolous objection is that making states
obey the Second Amendment "invites an avalanche of litigation," as
Stevens puts it. Every day we hear about cases in which people
argue that the government has violated their rights under the
First, Fourth, Fifth, Sixth, or Eighth amendment. Neither Stevens
nor Breyer wants to stop this "avalanche." Only when the Second
Amendment is added to the mix do they recoil in horror at the
prospect that Americans will use the courts to vindicate their
rights.

Stevens warns that "the practical significance of the
proposition that 'the Second Amendment right is fully applicable to
the States' remains to be worked out by this Court over many, many
years." But that's because the Court for many, many years ignored
the Second Amendment while gradually defining the contours of its
neighbors in the Bill of Rights. There is a lot of catching up to
do.

Jacob
Sullum is a senior editor at Reason and a
nationally syndicated columnist.

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