Friday, October 2, 2009
WITH ITS landmark ruling in the 2008 case of District of Columbia v. Heller, the Supreme Court held that the Second Amendment bestows an individual right to keep and bear arms. The fact that this case originated in the District -- a federal enclave -- saved for a later day the question of whether the Second Amendment also applied to states, thus extending this right to all citizens. That day has come in the form of McDonald v. Chicago, in which Chicago residents challenged the constitutionality of that city's broad and strict gun laws. The justices will probably hear the case early next year.
The Second Amendment declares that "the right of the people to keep and bear Arms, shall not be infringed." Yet there have been deep rifts among federal and state courts about whether this prevents state and local governments, as well as the federal government, from infringing on that right. Some courts, including the federal appeals courts in Chicago and New York, have relied on 19th-century Supreme Court precedents to conclude that state governments are not controlled by the amendment; the federal appeals court in California reached a different result by concluding that these high-court precedents were obsolete. The justices are right to step in to answer the question once and for all.
Given how the Constitution has evolved, lawyers from both the left and right of the political spectrum will present strong arguments that the Second Amendment applies to state and local government, just as the First Amendment does. It would seem at least incongruous -- and may ultimately be legally indefensible -- for residents of the District to enjoy constitutional rights that are withheld from people in Chicago or other parts of the country.
But just as in the District, it will be important for the court to recognize that all rights -- including those of free speech and assembly -- are subject to limits. So should be the right to keep and bear arms. Any Supreme Court ruling should explicitly recognize the authority of state and local governments to craft regulations to best protect their communities. Gun laws that make sense in a densely populated urban area may be unreasonable or unnecessary to protect the public safety of rural residents. The justices should allow state and local jurisdictions reasonable flexibility; a civil society must be able to balance the rights of individuals with the compelling interest in maintaining public safety.