Think the 2nd Amendment provides individuals legal protection for the ‘right to bear arms’? You’re not alone, but for decades Supreme Court opinion has run to the contrary. Slate's legal analyst Dahlia Lithwick explains why the High Court and the public haven’t been on the same page.
BOB GARFIELD: And I'm Bob Garfield. The right to bear arms, that's what the Second Amendment to the Constitution guarantees. Right? Maybe. On March 19th the Supreme Court heard oral arguments in a case that likely will determine an issue that has been settled in the court since 1939, but not in the public policy debate.
Dahlia Lithwick is senior editor at Slate and she's been covering the case. Dahlia, welcome back.
DAHLIA LITHWICK: Thank you for having me. BOB GARFIELD: Well, let's not litigate this one, but tell me briefly about the D.C. handgun ban that was struck down by an appeals court and which the Supreme Court is now considering. DAHLIA LITHWICK: Well, the ban is widely considered one of the most restrictive in the nation, and it pretty much bans handguns altogether, with some exceptions. The gun ban was struck down as unconstitutional.
And then the D.C. Circuit Court of Appeals, which is a, you know, very prestigious and influential court in the nation, went and said, yes, that's right. The gun ban is unconstitutional because the Second Amendment provides a personal right to bear arms. And this was really a shocker. And the Supreme Court really had to look at this issue very, very closely for the first time in 70 years. BOB GARFIELD: Well, for some of our listeners, the shocker will be that this came as a shocker, because we have so often heard the Second Amendment guaranteed right to bear arms that many of us have come to believe that that is a matter of settled law to one degree or another, but not necessarily so, eh? DAHLIA LITHWICK: Well, that's what's really amazing. This is sort of the "stealth amendment." The last time the Supreme Court heard a major, major gun case was in 1939. I sort of joke people were wearing fedoras and driving Packards. And what the court pronounced is actually the opposite of what you just said and most people believe. The court said, no, it's not a personal right to pack heat.
It's a right that's very much constrained by the first half of the Second Amendment, the part that we don't know, that says: "…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."
So the question really for the courts has been settled. This is a right that goes to militias. If your National Guard wants to assert a Second Amendment right, that's fine, but you as Joe, guy on the street, do not have a right that flows from the Second Amendment.
And that's the really interesting part is that the American public has a whole different, and, as you suggest, almost antithetical notion of what the law says. BOB GARFIELD: Is it because of lobbying by so-called gun rights organizations that have led us to believe that this is still an open question? DAHLIA LITHWICK: This was very, very much influenced by the gun lobby. And the NRA, you know, it's not an accident that on that side of their building, their national headquarters, they only have the second half of that clause I read to you.
Now, I will say one thing that has changed in the last few decades that really made this interesting is that the legal academics who, you know, we all sort of think of pointy-headed guys in their ivory tower – it doesn't matter – but liberal Constitutional scholars started to argue very strenuously for the NRA position on the Second Amendment.
There should be a strong individual right to bear arms enshrined in the Second Amendment for the same reason that we believe there should be strong individual rights protected by the First and Fourth and Fifth Amendments.
And so suddenly the academy was all hopped up about it, and that's one of the things that really I think drove the sea change that we've seen in the last few years. BOB GARFIELD: So if this case is decided in the gun lobby's favor, does that mean that I can get not only a handgun and a machine gun but that Stinger missile launcher that I've had my eyes on for so long? DAHLIA LITHWICK: [LAUGHS] You and me, both - I don't think so, Bob. I think that the key to this case really is going to be the definition of what is a, quote, "reasonable" regulation on guns. And even though the court didn't talk about that reasonableness factor very much, it's an important part of this test.
So what the court's going to do now is go back and look at, okay, assume that there's a fundamental Second Amendment right, a personal individual right to bear arms. Even notwithstanding that, what would be reasonable regulations? And that's where it's going to get interesting. There's a lot more litigation that is going to come out of this. BOB GARFIELD: As you look at the media coverage of the gun issue as a public policy matter of the last many decades, do you think, you know, we as a group have done a good job explaining the stakes or have we somehow used a shorthand that obscures the issue? DAHLIA LITHWICK: I think that where we failed is explaining the lay of the land. I think that we've gotten very, very involved in the Brady versus NRA horserace and his winning, you know, on vote counting and his winning on fundraising and who is responsible for Al Gore, you know, losing the 2000 election in his home state of Tennessee. That's very, very interesting to the media.
But I think the legal question, the Constitutional question, you know, here's what the courts have held for decades and this has not wavered. I think that's where we sort of fell asleep at the switch, because it seems to me, as you said, that when you look at the polls, most Americans have no idea what the state of the law was. BOB GARFIELD: All right, Dahlia. As always, thank you very much. DAHLIA LITHWICK: As always, my pleasure. BOB GARFIELD: Dahlia Lithwick is a senior editor at Slate.com.