A Hollow Victory?

Assessing the real world impact of D.C. v. Heller


For all of the hype, last week's Second Amendment ruling by the Supreme Court won't have much practical effect, at least in the short term. And we likely won't know it's long-term implications for years.

D.C. v. Heller wasn't so much a victory for gun rights as it was a deft aversion of defeat. The Supreme Court addressed its first broad gun rights case in decades and came away finding that the Constitution confers an individual right to bear arms, not a collective right. A 5-4 decision the other way would have been devastating.

Still, this victory seems hollow. Perhaps that's in part because of the narrow way the case was argued by the plaintiff, D.C. security guard Dick Anthony Heller (disclosure: I have several friends and former colleagues who worked on Mr. Heller's case).

Heller's lawyers' strategy (a wise one, in my opinion) was to argue the case narrowly enough that courts couldn't throw it out, forcing the federal court system once and for all to determine whether the Second Amendment's right to keep and bear arms applies strictly to militias or to each of us as individuals.

Writing for the majority, Justice Antonin Scalia ruled for the latter, but with some broad exceptions.

And there's the rub. Scalia's opinion says the Second Amendment's "individual right" to bear arms extends only to self defense and, even then, only in one's home. Perhaps in part to help secure a five-vote majority, Scalia seems to have gone out of his way to explain that the Court wasn't invalidating laws against concealed carry, laws against "unusual or dangerous" weapons, licensure and permit laws, or laws against possessing weapons in "sensitive areas."

Second Amendment scholar Nelson Lund writes that Scalia's exceptions could be significant: Should white-collar felons guilty of nonviolent crimes such as tax evasion or insider trading be barred forever from possessing a gun for self-defense?

Scalia's "sensitive areas" might well include the likes of post-Katrina New Orleans—places where the government is striving to preserve order but where the citizens are in most need of arms for self-defense.

Scalia's opinion also neglected to embrace the Second Amendment as a bulwark against government tyranny, an argument that may at first blush seem anachronistic and impractical but that history shows ought not be taken lightly.

One needn't be a modern-day mountain militiaman to observe that authoritarian regimes often become tyrannical after first disarming the citizenry. As Thomas Jefferson put it, "When the people fear their government, there is tyranny; when the government fears the people, there is liberty."

Most significantly, Scalia's decision neglected to incorporate the individual right to gun ownership to the states through the Fourteenth Amendment. That means that for practical purposes, the only people directly affected by the ruling are the 600,000 residents of Washington, D.C., and the handful of others living in protectorates of the federal government.

To be fair, the plaintiff in the case was a resident of Washington, D.C., and didn't ask the Court to address incorporation. Still, Scalia broached the matter in a footnote but was vague and ambivalent about his intentions, leading to competing interpretations over whether he would or wouldn't be amenable to incorporation.

Scalia has tended to be skeptical of the idea of broadly applying the Bill of Rights to the states. He also has a history of prioritizing his law-and-order instincts over his allegiance to limited government principals and originalism, as he did when he sided with the Court's liberal justices in the medical marijuana case Gonzalez v. Raich.

There, Scalia's fondness for the drug war trumped his alleged federalist principles. His and Justice Anthony Kennedy's vote to validate the federal government's efforts to subvert state laws allowing for the use of medical marijuana essentially halted the Court's incremental, 10-year "federalism revolution," which some speculate may have resulted in overturning Wickard v. Filburn, the 60-year-old Commerce Clause case that broadly expanded the power of Congress to intervene in the most minute of personal affairs.

Until the incorporation issue is resolved—which likely will take years—last week's decision, while symbolically significant, has limited practical effect. It means only that the citizens of Washington, D.C., and other federal protectorates have the right to own a handgun for the purpose of self-protection.

But that right only extends to gun ownership in the home, and even then, it's subject to all sorts of restrictions and licensure requirements. Just how strict those requirements can be (could D.C. pass a six-month waiting period for handgun purchases?) will need to be resolved by litigation.

Outside of D.C., nothing has changed. The Heller decision won't affect other cities with gun restrictions as severe as those in D.C. So-called "assault weapon bans" still are valid. All Heller did outside the nation's capital was remove the possibility that Congress might one day pass a blanket federal ban on all firearm ownership, which seemed like a remote possibility, anyway.

Pan back a bit and the cause for skepticism grows. The Bill of Rights never was intended to be a list of the only rights we have; in fact, the founders worried that future generations might interpret it that way, which is why they included the Ninth and Tenth amendments.

Rather, the Bill of Rights includes the rights the founders considered most important, those necessary to secure and preserve all of the others.

The right to bear arms appears second on the list. And yet even here, on an issue that's become a central tenet of conservative philosophy, we have a decision written by the Court's most conservative justice that can't even uphold the second addition to the Bill of Rights without a series of caveats, exceptions, and asides. And it's a ruling that, practically speaking, applies that right to only a sliver of the country's 300 million residents.

As the short-lived "federalism revolution" demonstrates, an incrementalist approach to winning back the liberties we've lost over the years isn't likely to be successful. Indeed, the general trajectory of the Court over American history has—with some exceptions—been toward more power for the government at the expense of individual liberty, not the other way around.

Heller was a symbolic victory, and the lawyers who brought the longshot case should be commended. But time will tell if this symbolic victory evolves into a practical one.

For now, we're still a long way from a blanket, real-world right to keep and bear arms.

Radley Balko is a senior editor of reason. A version of this article originally appeared on FoxNews.com.