The US Supreme Court and Gun Control

The amendment on bearing arms has always teased, tormented and thrilled the American psyche. On the one hand, it is revered with totemic intensity, the marker of a people free to adopt the necessary force to protect their welfare. The essentially antiquated nature of the text bearing the amendment reads like a piece of period drafting, though that hasn’t stopped modern justices from taking the provision literally. The provision has proved to be a curse for gun control advocates who would like to see a country rid of its enormous array of lethal weapons, possessed ostensibly in the name of a sacred right.

The narrow decision in the US Supreme Court against state and local handgun bans in McDonald v Chicago is symbolic for gun fetishists. Chicago mayor Richard Daley could only claim that, ‘We are a country of laws not a nation of guns.’ In truth, the substance of the decision makes the idea of a society where personal gun ownership is forbidden nigh impossible to realize. The decision itself did not spell an end to the regulatory framework surrounding handguns. Those strictures on gun usage that fall short of a ban will be deemed valid. Regulations and rules will be necessarily balanced against constitutional freedoms.

The decision builds on that of Heller v District of Columbia, in which the court struck down a ban in the District of Columbia that unduly infringed the Second Amendment. Such rulings have left the ground of legal debate as to exactly what constitutes an impermissible ban rich with promise for the litigious. Consider, for instance, the words of President Barack Obama when he was still a candidate. ‘I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify the need for crime-ravaged communities to save their children from violence that plagues our streets through common-sense, effective safety measures.’

For Candidate Obama, it mattered that Justice Scalia had refused to accept an unqualified right to bear arms. But in a subsequent statement, Obama seemed to edge back, hoping, on the one hand, to secure votes from communities ravaged by gun crime, yet aware of the sacred worth of the Second Amendment.

As has been noted by Chris Good in the The Atlantic (Jun 28), the reaction by the Democrats has been, at best, lukewarm. If anything, there have been a few notes of encouragement for the ruling. An enthusiastic Harry Reid heaped praise on the decision. ‘With today’s ruling, the U.S. Supreme Court has helped ensure that the 2nd Amendment rights of Americans will be protected in all corners of our country.’ Judiciary Committee Chairman Senator Patrick Leahy of Vermont was very much in agreement. ‘Today’s opinion will ensure that any firearm regulation must be measured against the right the Second Amendment secures.’

There is little doubt though that, from beyond the grave, Charlton Heston might well be rejoicing. The myriad of gun control laws that web the US will be challenged by the National Rifle Association, a body forever dedicated to excoriating advocates of gun control. The only feasible reaction now is to layer the process of getting a gun onerous and discouraging. The solution, it seems, lies in red tape, and it is something the Chicago mayor is promising with a vengeance.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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