The Gun Control Decision Is Good For Obama And Democrats

Today, the Supreme Court issued a decision striking down the District of Columbia ban on hand gun ownership. Contrary to what some may think, the world has not been turned on its head, except that a rallying cry for the NRA and other forces that have used gun control as a wedge issue against Democrats for decades has been partially neutered.

The Court held that the second amendment right to bear arms is an individual, not just a collective right associated with having a state militia. But, it is still a limited right and is not totally disconnected from the concept of a militia. The court basically held that at the time of the founding the weapons that people had for personal protection are the same weapons they brought to their service in the militia. It is those weapons that the court says are covered by the Amendment.

This decision makes clear that the court is not invalidating all gun control laws. It does not mean that licensing requirements are invalid. It does not mean that people have the right to own artillery, tanks, sawed off shotguns and M-16s. It does not invalidate regulation of concealed weapons. It does not mean felons or the mentally ill have a right to arms. Finally, it does not mean guns are allowed in or near schools.

This opinion was written by Scalia, the republican icon of the ideal Justice. Because his opinion would validate most of the types of gun control legislation on the books today, it steals the thunder from the gun lobby about gun rights in the US today. As such, It will be a net positive for Obama and other Democrats.

Much will be written on the subject as we have a chance to digest the language of the opinion. But these statements from the majority opinion should allay fears that the doors have been opened to unrestricted gun ownership.

At the outset, the Court says that it’s longstanding opinion in United States v Miller is still valid but clarifies the scope of that decision.

We therefore read Miller to say

only that the Second Amendment does not protect those

weapons not typically possessed by law-abiding citizens

for lawful purposes, such as short-barreled shotguns.  

The court is protecting weapons held by law abiding people for lawful purposes. Self-defense is the lawful purpose the court is upholding. The court also limits the protection to the types of weapons that a militia man would have in his home at the time of the founding.

We also recognize another important limitation on the

right to keep and carry arms.  Miller said, as we have

explained, that the sorts of weapons protected were those

“in common use at the time.”

That does not mean the Court is sanctioning the types of weapons a soldier would use today.

It may be objected that if weapons that are most useful

in military service-M-16 rifles and the like-may be

banned, then the Second Amendment right is completely

detached from the prefatory clause.  But as we have said,

the conception of the militia at the time of the Second

Amendment’s ratification was the body of all citizens

capable of military service, who would bring the sorts of

lawful weapons that they possessed at home to militia

duty.  It may well be true today that a militia, to be as

effective as militias in the 18th century, would require

sophisticated arms that are highly unusual in society at

large.  Indeed, it may be true that no amount of small

arms could be useful against modern-day bombers and

tanks.  But the fact that modern developments have lim-

ited the degree of fit between the prefatory clause and the

protected right cannot change our interpretation of the


The decision goes on to make clear that the Amendment does not prohibit the who, what, where and why of weapons regulation.

Like most rights, the right secured by the Second

Amendment is not unlimited.  From Blackstone through

the 19th-century cases, commentators and courts rou-

tinely explained that the right was not a right to keep and

carry any weapon whatsoever in any manner whatsoever

and for whatever purpose.

For instance, it doesn’t guarantee the right to carry concealed weapons.

For exam-

ple, the majority of the 19th-century courts to consider the

question held that prohibitions on carrying concealed

weapons were lawful under the Second Amendment or

state analogues.

Also the government can regulate who owns weapons and where they may be carried.

nothing in our opinion should be

taken to cast doubt on longstanding prohibitions on the

possession of firearms by felons and the mentally ill, or

laws forbidding the carrying of firearms in sensitive places

such as schools and government buildings, or laws impos-

ing conditions and qualifications on the commercial sale of arms

Finally, the decision leaves open the question of the legality of registration laws.

Respondent conceded at oral argument that he does

not “have a problem with . . . licensing” and that the Dis-

trict’s law is permissible so long as it is “not enforced in an

arbitrary and capricious manner.”  Tr. of Oral Arg. 74-75.  

We therefore assume that petitioners’ issuance of a license

will satisfy respondent’s prayer for relief and do not ad-

dress the licensing requirement.

Basically, the Court is saying that it is impermissible to have an outright ban on weapons for use in the home for personal protection. Agree or disagree, but that is a limited ruling. Contrary to what Second amendment advocates believe, Scalia makes clear that the government can restrict who can own weapons, what type of weapons are protected and where and how those weapons can be carried. That is really what most gun control advocates have been wishing for all these years. i think it takes away the Second Amendment as a wedge issue, and that can only help Democrats.


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    • pico on June 26, 2008 at 20:08

    and I think you’ve done a good job at putting this into perspective.  

  1. the sorts of weapons protected were those “in common use at the time.”

    This has to be one of the most tortured ‘original intent’ justifications Scalia has ever written (and that’s saying something).

    According to Nino, the Founding Fathers either:

    1. Never forsaw advances in weaponry, or

    2. Forsaw the advances but intended that militias be restricted to outdated guns to defend the country.

    Both very silly.

    Of course, Fat Tony can’t say what he is really doing, which is to expand the 2nd Amendment Right to Bear Arms to include individual rights for gun owners, because that would be (gasp) Judicial Activism and would set a precedent for reading of all kinds of other individual Rights into the Constitution (especially those concerning Privacy cum Abortion cum Gay Marriage).  

    So instead Scalia pretends to play clairvoyant, and in his twisted dream world communes with Jefferson, Madison, and Hamilton to produce a ‘plain reading’ which is patently absurd but still advances his ideological agenda.


    Great essay BTW.  

  2. we are going to be.

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