While I’m ecstatic to see the unanimous opinions of the Supreme Court supporting individual rights, the question remains: how far and deep will the effects be felt?
Does it mean we’ll see every gun regulation on the books wiped tomorrow? I’d love to be able to order guns from a catalog. I should be able to buy a silencer for $100 so I don’t have to worry so much about my hearing. Drop-in auto sears should be $20 and legal.
In short, I should be allowed to own whatever I want, and I should not have to justify it to the government. That’s the way our system was intended to work.
But I’m not holding my breath.
Right now, it can go one of two ways.
At one pole, we may find that the rights of the 2nd Amendment are broadly defined and only restricted under very strict review (as with the 1st Amendment). Under this interpretation, even the Brady Background Check system would be unconstitutional, as would the NFA, which taxes and regulates the possession, sale and manufacture of machine guns, short-barreled shotguns and silencers.
On the other hand, the Court may decide that the right to bear arms is subject to a broad scope of local and state level regulations. Such a ruling would preserve most (if not all) of the current restrictions we know.
At this point, the Justices seem to be leaning toward the first possibility, which is encouraging. Roberts, Scalia, Alito, Thomas and (surprisingly) Kennedy provide the 5-4 majority for such a ruling. Ginsburg and Souter appear to be in the middle, with Breyer and (perhaps) Stevens writing the dissent.
No matter what happens, the debate isn’t over; it’s just beginning. The next ten years or so will see a wave of litigation on both sides as the exact implications are hammered out.
First off, any ruling in Heller will have its primary effect on the Federal level. Whether or not it applies to the states will be another issue. Under the 14th Amendment, it should, but that’s yet another case that will have to make its way up the ladder. Even if it’s established that the right is unfettered and universal, states like New York, Massachusetts, Illinois, Maryland and Hawaii will do all they can to keep the status quo. Each of their laws and ordinances might have to be challenged individually.
Then there’s the backdoor stuff. Going after the peripherals is one possible (and likely) approach.
First off, let’s consider choking the ammunition supply. Bear in mind that rifle ammo has gone up almost 40% in the last nine months. I grumble, but I shoot, so I pay it. Much of the shooting culture takes the rising cost of ammunition as a matter of course, much the same way non-shooters put up with the costs of gasoline.
So, “ballistic fingerprinting” or some such restriction shows up, and it drives ammo prices out of reach of the average person. People stop shooting because they can’t afford to. Sooner or later, they sell their guns.
It’s not a ban on “Arms,” so it’s legal. “After all,” the politicians can say, “we’re not banning guns. In fact, we’re not banning anything. We believe in the 2nd Amendment!”
Nobody on either side of the fence believes that ammo stamping will actually do any good, but that’s not the point. Perception is.
Sooner or later, we will have categories of ammunition. There will be “military” stuff (ballistic tips), “sniper” stuff (FMJ) and “anti-personnel” (hollowpoints). Certain categories will be classified as being “not sporting,” and will eventually be restricted.
There are even sneakier ways, some of which have nearly passed recently. We need places to shoot, but those will be endangered by OSHA and/or EPA regulations that make it impossible to operate shooting ranges. They’ve done a good job in many areas of pushing outdoor ranges so far out of metropolitan centers that going to the range means a drive of several hours.
Again, keeping and bearing arms becomes so inconvenient that most people decide it’s not worth the trouble. It’s not a ban on the face of it, but it has the same effect.
My, aren’t I the cheery one today?
Then there’s the question of carry.
The question of what it means to “Bear Arms” will be subject to quite a bit of interpretation. Most states have some provision allowing their citizens to carry concealed weapons, but is this covered by the 2nd Amendment?
I’d say it is, as would most folks in our camp. But the courts may find that public carry is covered by other regulations.
CHIEF JUSTICE ROBERTS: (…) you would define ‘reasonable’ in light of the restrictions that existed at the time the amendment was adopted.
MR. GURA: Those restrictions…
CHIEF JUSTICE ROBERTS: You know, you can’t take it into the marketplace was one restriction. So that would be (…) we are talking about lineal descendents of the arms but presumably there are lineal descendents of the restrictions as well.
DC vs. Heller, Oral Arguments, p. 77
Again, a ban on carry, such as the one proposed by Senator Obama, may not be interpreted as an infringement.
In short, keep your eyes open, and don’t break out the champagne yet. There’s still work to be done.