DC vs. Heller decision offers much food for thought
July 15, 2008

by Joseph P. Tartaro
Executive Editor

The landmark Supreme Court decision in District of Columbia vs. Heller might have surprised some journalists, affirming as it did the majority opinion of the American people, an opinion which most newspapers did not share.

It delighted most proponents of firearms civil rights and self-defense. Some gunowners and activists may have been disappointed that it did not go far enough.

However, they should remember that this was a “keep” case, not a “bear” case. It affirmed the individual right to have arms, particularly handguns, in the home for personal defense. It overturned an outright ban on effective defense in the home, but it left open to future decisions by future courts as to what other parameters of gun control would fence in future generalizations.

It certainly disappointed most anti-gunners and perhaps even some who consider themselves proponents of firearms civil rights and the moral right to self-defense.

It angered some of the anti-self-defense crowd, such as the Violence Policy Center, which showered its vituperative wrath on the majority decision’s author, Justice Antonin Scalia. It was a classic case of blaming the chief messenger for a ruling that was endorsed by four other justices. The VPC website, as well as the HuffingtonPost website, laced into Scalia for his 2007 World Forum award as Sport Shooting Ambassador, and showed the cover of the Gun Week Apr. 10, 2007 issue with Scalia’s picture. They did not spread their vitriol to the rest of the majority.

The Brady Campaign took the decision in a calmer vein. In fact, they took it to mean that Scalia’s opinion had taken the extremes out of the gun issue debate; it hadn’t put the anti-gunners out of business.

The New York Times, a key voice of the gun control movement, called Scalia’s majority opinion his most important in his 22 years on the court. The Times took comfort in the fact that his opinion recognized that the justices were “aware of the problem of handgun violence in this country” and “take seriously” the arguments in favor of prohibiting handgun ownership.

The Chicago Tribune may have keynoted the feelings of many anti-gunners when it called for repeal of the Second Amendment in its own editorial commentary on the Heller decision.

An editorial in The New York Sun on June 27 raised some important things to remember when considering the impact of the Supreme Court’s Heller decision.

The Sun may be as close as one can come to an objective, if not pro-firearms civil rights newspaper in New York City.

The Sun’s noted in an editorial headlined to call attention to the First, Second and Fourteenth Amendments that “Both of the men running for president displayed their shortcomings yesterday in reacting to the Supreme Court’s ruling that the Second Amendment includes an individual right to keep a handgun at home for self-defense. The amendments at stake include not only the Second but also the First and the 14th, so even those who aren’t handgun enthusiasts or partisans of gun control will want to pay attention.

“Senator Obama’s statement was the more astounding one, if only because it came from a professor of constitutional law and a former editor of the Harvard Law Review. It’s hard to know where to begin. First was the audacity of Mr. Obama appearing to praise the court’s finding that the Second Amendment right to bear arms applies to individuals and not only to militias. The ruling was made by a five to four margin, and two of the justices in the majority—the chief and Justice Alito—wouldn’t be on the federal high court at all if Senator Obama had gotten his way during their confirmation hearings. Senator McCain voted to confirm both, while Mr. Obama voted against them. Should Justice Kennedy, 71, or Justice Scalia, 72, decide to retire in the next four years, there’s little reason to think that a President Obama would fill the vacancy with a judge who would protect gun rights,” The Sun continued, turning to an examination of McCain’s as well as Obama’s records.

“Then was Mr. Obama’s statement, in respect of gun rights, ‘I know that what works in Chicago may not work in Cheyenne.’ It is true that our federal system gives state and local governments the ability to adjust policies to suit regional differences. But the federal courts have read the due process and equal protection clauses of the 14th Amendment, which was adopted in 1868 after the Civil War, to restrict the state and local governments from infringing on the rights enshrined in the federal Constitution. Imagine the fuss that would be put up by NARAL, for example, were Senator McCain to suggest that what works in New York as far as abortion rights may not work in Alabama. Or by the NAACP—and rightfully so—were Mr. McCain to suggest that what works in the North as far as integrated education doesn’t work in the South. Do the people of Chicago not deserve as full a Bill of Rights as those in Cheyenne? If Mr. Obama truly believes that gun laws should be left to the states and local governments, the intellectually honest position would be to favor repeal of the Second Amendment.

“Meanwhile, Senator McCain greeted the decision with a statement that said, ‘today’s ruling recognizes that gun ownership is an important right—sacred, just as the right to free speech and assembly.’ If Mr. McCain really believes the right to free speech is ‘sacred,’ why has he devoted so much time and energy in his congressional career to imposing new restrictions on campaign speech under the rubric of campaign finance ‘reform’? Given all that Mr. McCain has done to shred the First Amendment with the McCain-Feingold law restricting the airing of television commercials mentioning candidates’ names within 30 days of a primary or 60 days of a general election, his claim that he finds gun rights as ‘sacred’ as ‘free speech’ is entirely unreassuring.

“There are plenty of swing voters in swing states such as Pennsylvania and Ohio who own guns and would like to know that their Constitutional right to do so will be safe four years from now, regardless of who leaves the Supreme Court and who joins.

“And they have reason to be worried. Their civil rights yesterday were upheld by only the narrowest of margins. A single vote. The liberal wing of the court—encompassing Justices Ginsburg, Stevens, Souter, and Breyer—looked hard at the Second Amendment, and found that the Amendment doesn’t protect the rights of ordinary gun owners. It took the conservative wing of the court—Chief Justice Roberts and Justices Scalia, Thomas, and Alito—joined by swing vote, Justice Kennedy, to see this as a civil rights issue and to rule accordingly.

“If ever a precedent were in peril, this is the one. The Supreme Court will no doubt hear a series of cases in the coming years challenging various gun laws, including perhaps those of our own city of New York. One reassurance as far as Mr. McCain goes is that President Bush, who signed McCain-Feingold into law, also nominated the justices, Roberts and Alito, who made yesterday’s majority ruling possible. The Second Amendment was adopted in 1791. Which may yet itself be the greatest reassurance, that we have a government not only of individuals with human frailties but of laws that have a way of outlasting both the judges and the politicians,” The Sun’s editorial concluded.

The opinion did not specify the standard by which the court would evaluate gun restrictions in future cases, but it showed us the road ahead.
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