Scalia's Law

Today, after the Supreme Court's rejection of Washington's ban on handgun ownership, I don't feel safer, but I don't feel much worse, either.

I wrote about the ban earlier this year after a friend of mine, Tim Spicer, a young man and aspiring musician and artist, was murdered in the District as part of fatal carjacking. I wrote at the time of my sadness and also my own ambivalence about D.C.'s policy. As a writer and a resident, I thought Washington's 32-year-old gun ban had been a failure; it clearly had not saved Tim or many others like him, although one could argue that Washington's high murder rate might have been higher still without the ban.

Nevertheless, I thought it was draconian and blunderbuss and I had sympathy for David Heller, the plaintiff who was allowed to have a gun at his job as a security guard, but could not own one in his home. Today, Heller can.

On balance, though, I hoped the Court would uphold the ban even though I thought it was stupid. It seemed to me that the people, through their elected representatives, had a right to control firearms. For decades the people of Washington had done that. And while I wouldn't have voted that way as a member of the D.C. City Council, I was glad the people, collectively, had that right to take a reasonable step for public safety.

Now, Antonin Scalia—probably the happiest man in America right now—writing for the majority decrees that the individual right trumps the state right. The Constitution does not allow "the absolute prohibition of handguns held and used for self-defense in the home," Scalia wrote.

It seems to be a decision we can all live with. It is not the decision that the most vocal gun advocates had hoped for. It will not strike down gun-control measures like the federal requirement for a background check. It will not allow an individual to buy a bazooka or a tank. It will not allow the mentally ill or convicted felons to buy a weapon and it will not effect carrying laws outside the home. It would seem to allow continued regulation of the sale of high-powered rifles. Licensing guns is still allowed. And because it is a 5-to-4 decision with a vigorous dissent from both Justices John Paul Stevens and Steven Breyer, it's certainly a decision that an Obama-influenced court—if there is one—could revisit, although that is a remote possibility. The Court took more than two centuries to make this definitive a ruling and has barely touched the issue since 1939.

One thing that's fascinating about the opinion is how much it relies on grammar. The Second Amendment reads: "A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed." The first part, Scalia ruled, is a statement of purpose and the second part of the sentence stands unfettered. You don't need to be in a militia to have a gun. The right of the people, Scalia said, is an individual right. And it's one that's primarily about self-defense, he noted.

This is why the court struck down not only the gun ban but also the District's trigger-lock law. It's no longer constitutional to require persons to keep their guns locked at home. That would inhibit the right, the court ruling said, to self-defense. After today's decision you can only hope that anyone with small children at home will have the intelligence to keep any firearms locked up.

Ironically, the decision probably will bring more of what conservatives hate: legislating from the bench. Now that they've prohibited a legislature from legislating, the Supreme Court and other courts will be in the business of deciding which gun regulations are okay. Instead of being hands-off, the court is now hands-on. This issue isn't resolved.

I guess, as always, the final word is with the market. The Dow Jones index is off about 200 points today, but Smith & Wesson is up 9 percent. There are going to be more handguns in a nation full of them, and the court has now made sure that nothing stands between you and one fully loaded by your bedside.

Photo of Supreme Court Justice Antonin Scalia by Charles Rex Arbogast/AP.

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