• Supreme Court's gun ruling doesn't mean 'anything goes'
    July 13,2008

    Editor's note: Sunday Editor Anne Galloway interviewed Vermont Law School professor Cheryl Hanna about the U.S. Supreme Court's recent 5-4 ruling that struck down the District of Columbia's stringent gun law. Their conversation follows.

    Q: How important is the Supreme Court's recent decision on an individual's right to bear arms?

    A: I think it's very important symbolically because it marks the first time in the court's history that it's said there's an individual right to bear arms. Practically, I suspect that the decision will not have a huge impact on existing gun control laws in most places in the country in part because the court has said this is not an absolute right, it's a qualified right.

    Q: The court's arguments revolved around self-defense and militia rights. It seems that the decision comes down to finding a balance between individual rights and the public good.

    A: That's right. I think ultimately what the court's decision hinged upon was the concept that the Second Amendment, being located in the Bill of Rights, was ultimately an individual right. So what was that individual right? Well, it's a right to bear and keep arms, not for any reason, but fundamentally a right to self-defense. The idea is that individual Americans have the right to use common weapons, like handguns, in order to defend themselves — not their property.

    Q: Why hasn't the court taken up cases involving the Second Amendment before?

    A: Well, in part because there has not been a whole lot of litigation in this area. The last time the court heard a case about the right to bear arms it was in the 1930s and there have been a few circuit court cases, but this is the first time the (Supreme) Court has taken a case.

    Now, in part you need a good case, and the D.C. case, in some ways, was a very good case. It's a federal case because Washington, D.C., is a federal jurisdiction. The court never went as far as saying that the right to bear arms applied to the states, although I suspect it will do so, but the ruling is limited to federal law and also because D.C.'s law was the most stringent in the country. It forbade any individual ownership of any gun. And so, in that way it was a very good test case for the court because it really pushed at the outer limits of what does this right mean.

    Q: What implications does the decision have on cities with existing bans?

    A: For the moment, it really only applies to federal jurisdictions. So places like Chicago, for example, which also have very stringent gun control laws, are currently not covered by the decision. The National Rifle Association and other organizations have already filed litigation, and the court at least hints that it's likely to apply this issue to the states. For now, though, it really just matters in the District of Columbia for the most part at the current time.

    Q: There aren't many federal jurisdictions, are there?

    A: Well, there are other federal gun laws. There are federal gun laws which prohibit felons from owning guns. There are federal gun laws which prohibit anybody who is subject to a domestic violence restraining order or has a domestic violence conviction from owning a gun. There are rules in the federal law about who's allowed to buy guns. Those I suspect will come under some challenges as time goes on.

    The court made pretty clear in the ruling that most gun regulations are going to remain constitutional. I suspect it won't be until next term or the term after in which they'll take a case involving whether or not this applies to state and local governments as well. Once that case comes down, and assuming the court does rule that it does apply to the states, it will affect jurisdictions like Chicago for example, which do have these stringent gun control laws, and it will have its greatest impact not in places like Vermont which have no gun control laws, but in major urban areas.

    Q: It almost seems as if there need to be two sets of laws in place.

    A: Well, the Constitution doesn't make that distinction. You don't get a Constitution for urban areas and one for rural areas. And that's the dilemma, of course. That's always the fundamental dilemma with constitutional interpretation, isn't it? It's this very old document that was written in a very different social landscape, and times change and America's become more diverse, it's become urban, in ways that I'm sure the Founding Fathers and others never foresaw. And that's both the beauty of the Constitution that it can survive all those changes and provide a stable democracy, but the downside is that it may create some hurdles to what we think of as modern life. But we'll have to see. It'll be very interesting to see, for example, if the District of Columbia does experience more gun-related deaths in the next few years that could be linked back to the change in the law.

    Q: The D.C. law was in place since 1976?

    A: Right. It's a long time. City police chiefs are concerned. They believe there will be more handguns on the street and that will create more deaths. We'll just have to see. But the people are always free to go back and amend the Constitution. If the American public really finds that this has results which are unintended and too severe, then the Constitution provides a way for us to change that. But we often forget we can always amend the Constitution.

    Q: I think people forget about it because it's so hard.

    A: It is hard. It's very hard. But I don't think this is as radical a decision as people think it is. I think the court did in fact try to balance out what I perceive as the NRA position, that the government really can't dictate whether law-abiding people should have a gun in their house for self-protection, without saying it was such a sweeping right that it would undermine all gun-control laws.

    Leading up to the decision, most constitutional scholars, even the most liberal, people like Larry Tribe at Harvard, had mostly come to the view that the Second Amendment likely did enshrine an individual right. So one of the things I think is interesting about the decision is, while the decision is split 5-4 right along ideological lines of the court, that really wasn't necessarily the thinking among constitutional scholars.

    In other words, it wasn't sort of a left-right split among law professors leading up to the decision. People aren't always aware of that, but many people, including Lawrence Tribe, who's often considered the most progressive constitutional thinker, had come around to the view that the Second Amendment likely did (enshrine an individual right). And I'm somebody also who was persuaded at least at some level by that.

    Q: Were you surprised by the way the justices lined up in the 5-4 decision?

    A: You know, what I was mostly surprised by was it was 5-4, because I had sort of thought given the intellectual current around this issue that the court might strive for a little more consensus. But I say that optimistically, because I'm not a big fan of split decisions. I think it's unfortunate that we continue to see this 5-4, liberal-conservative split, when this I thought was an opportunity for people to compromise and find some middle ground.

    Q: I can't remember the last time consensus was reached on the Supreme Court.

    A: The number of unanimous decisions has been trending downward over the last 15 years, since the Rehnquist court, since the court has become more political. Despite Justice John Roberts, who when he was appointed to the bench, as chief justice, had made a big deal publicly about how his goal was to have more unanimous decisions and how Chief Justice John Marshall was able to muster unanimous decisions, and how he thought that was better for the stability of the country, and he's just not been able to. I don't know how much he's trying or just how deeply divided that court is that even the strongest of leaders couldn't get consensus. And also it's the kind of people we appoint to the bench. We tend to not appoint people to the bench that have the kind of political skills we might think of that inspire people. They tend not to be people we think of as team players. But it's an interesting question to me, and we're seeing a similar division on the Vermont Supreme Court.

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