If you were to run down a list of hot-button issues which inflame the electorate on both sides, gun control would be near the top. The majority of the population favors stricter laws according to most polls, but those who are against new restrictions are much more vocal. Only 10% of the population favors weakening restrictions.
Given this, it may come as a surprise that in recent years laws regulating gun sales and ownership have become considerably less restrictive. This is due to a combination of reasons that start with a large Republican control of 30 state legislatures. Ultimately, however, the main driving force is a Supreme Court ruling which stated that the Second Amendment deals with individual, not militia rights.
Justice Antonin Scalia. It’s the argle that makes him smile more than the bargle.
The ruling that started it all is D.C. v, Heller, which was decided in 2008. The majority opinion in this 5-4 ruling was written by Justice Antonin Scalia, who was pretty clear in his intent:
“Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”
Since that ruling, courts have been bound to treat the Second Amendment rights as sacrosanct – essentially on par with First Amendment rights. The right to “keep and bear arms” has been elevated to the status of a “fundamental right”. That means that far from taking that right, laws can’t even impose restrictions that might even make it harder to exercise those rights.
You can’t force respect.
On Monday, 16 May, the 9th Circuit Court in California ruled in Teixeira v. County of Alameda that an existing law compelling gun stores to be more than 500 feet from a residential area was not proper because it unreasonably infringed on the right to exercise the Second Amendment. The ruling drew on the Heller decision. Local governments cannot impose restrictions on where gun sales may take place.
It’s hardly the last decision of its kind, either. Two days later, U.S. District Judge Richard J. Leon ordered the District of Columbia to stop enforcing its law against concealed carrying of firearms, saying that it was “likely unconstitutional”. Similar laws have been upheld in the past, but this one was not.
A showdown all the way to the Supreme Court is likely. Without Scalia it’s hard to say exactly how it will go, but Heller is only eight years old. Justices will be unlikely to overturn it without a very compelling reason – and not much has changed in the last few years.
All of this flies in the face of standard campaign rhetoric, of course, which often stresses to gun rights backers that “They are coming for your guns!” It’s an effective rallying cry to bring gun rights advocates to the polls. But it’s also completely untrue in one key sense – they do indeed have the US courts on their side.
No one votes this way anymore, but we like the image of doing so.
Given that a majority of the population does favor new restrictions on guns, vague as that wording may be, it is surprising to find that this may be impossible – indeed, tough restrictions that are more common in Northeastern states may well be rolled back in coming years as test cases make their way through the courts. That won’t stop the politics of the issue, of course, given that proponents of new restrictions can also rally their side of this contentious issue without any fear that anything new is going to happen.
Where does that leave us? Very few people believe that restrictions on guns should be rolled back, but they will be more and more over the next few years. With a Supreme Court vacancy in the balance of this election we have one more reason why this could become a strong political issue. We can reasonably expect that will happen.
In the meantime, two new rulings show why this is an important issue. Like it or not, the right to keep and bear arms is a fundamental right which cannot be infringed. Changing that will take a years long process that will involve new justices and new test cases not yet conceived.
Barataria - The work of Erik Hare 
The wheels of justice and democracy grind slowly
… providing plenty of hot button campaign issues for a generation or more of voters to argue over. Sometimes I whine over the midpoint between ever changing technology (to fast sometimes, to be used efficiently) and changes in our society mores, via our systems (too slow to meet current reality) never being noticed by pendulum swings of popular opinion.. And so, the human condition spins on… 🙂
A good point – guns got ahead of our ability to understand them – what they are for, what they can do, et cetera. Hardly the only thing in that category, but one of the most lethal.
We love our guns. They are not going away.
No, they are not. I would like some sensible things to regulate people, however. If nothing else they should know how to use these things that will be with us.
This is crazy. The 2nd amendment is clearly about arming militias which aren’t even a thing anymore. How did they justify this as a fundamental right for everyone? It makes no sense at all.
That was always my read, too, but with Heller the fundamental individual right is the law of the land. It was not before.
This is why we have to vote Democrat no matter what.
The Supreme court should be a very large issue in this campaign. Which is in and of itself rather sad, but it’s the way it is.
Sigh.
Indeed. I don’t think many people know of this, either.
Reblogged this on Filosofa's Word and commented:
The following is a post well worth reading by fellow blogger Erik Hare (Barataria). He presents a way of looking at the 2nd amendment issue and recent changes in law that many of us were either not aware of or did not fully understand. Definitely worth taking a few minutes to read!
From an outsider’s point of view this all looks pretty surreal… This whole proclaimed right to bear arms…. But I guess it is a question of cultural background.
I can only imagine how strange it looks. I don’t understand it entirely myself.
I enjoy reading your posts… you are a gifted writer and give challenging insights on subjects.
I am pro-second amendment mainly as a means of self-defense for me and my family and of course for hunting game. (There is nothing we hunt that we don’t eat or give away to someone else to eat.) As I was watching a WWII movie last night about the Nazi invasion of France, I was thinking how differently things would have been had their citizenry been armed. I believe one of our modern day problems is mentally ill people using guns. My other thought is that criminals will always obtain guns no matter how many laws we enact.
Thank you! I have always though that any gun regulation should center on precisely what the military sees as the critical component – training. I have no problem with people who know what they are doing owning and carrying arms. I also see nothing wrong with encouraging this, either. But I don’t know how even this approach would pass the test implied by Heller – that it is a fundamental right akin to free speech.
Yes, criminals will always find a way to have guns, for sure. I think far too much emphasis is placed on the weapon and nowhere near enough on the person who is carrying it. I do believe that if you use a gun in the commission of a crime the penalties should be severe – again, it’s an emphasis on the person, not the weapon.
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