BangA 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.Now, as gun control advocates have pointed out, in the Framers' time, you didn't have Kalashnikovs and grenade launchers; nor did you have readily-available hand guns with high-capacity clips, nor the drug trade, nor mind-blowing urban murder rates, et cetera, et cetera. What we then have is an 18th century instrument constraining lawmakers attempting to address a 21st century problem. Of course, given that a) the Bill of Rights is binding social contract with a lot of important, desirable goodies still left around from Ye Goode Olde Days (free speech, protections against unreasonable search and seizure, bans on cruel and unusual punishment) and b) it's amendable, it's difficult to argue that well-intentioned legislators should be simply be permitted to ignore the Second Amendment when it becomes inconvenient - after all, this is pretty much the same argument the Bush Administration has employed (and the Court has largely endorsed) to justify the extralegal tactics attendant to the War on Terror. Yet, to some extent, this is pretty much exactly what has happened.
How else to explain the panoply of prohibitions and restrictions on firearms ownership? Even if you don't accept Justice Scalia's dismissal of the "militia" clause as merely "prefatory", surely one can argue that in today's military environment, fully automatic weapons might have "some reasonable relationship to the preservation or efficiency of a well regulated militia" - the standard employed by the Court in upholding the federal ban on sawed-off shotguns in 1939's U.S. v. Miller. Yet not only does federal law still prohibit Americans from possessing machine guns - not to speak of other battlefield implements such as rocket launchers and hand grenades - but many states ban ownership of assault-style semi-automatic weapons: if it looks like a duck then it must quack like a duck, I suppose. While Heller is a landmark decision in the sense that it delineates some ill-defined baseline individual right to own certain firearms for lawful purposes, it also largely upholds the nation's patchwork quilt of gun control regulations; in other words, the Court is interpreting "infringed" not as an absolute prohibition on governmental interference with otherwise lawful gun ownership, but as an indefinite yet discrete set of activities, thereby creating a relatively narrow legal minefield for lawmakers to negotiate.
Today's ruling was, of course, cheered by anti-gun control advocates, who take a more absolute view than the Court and view most types of restrictions on firearms as inherently unreasonable and infringing. Some of these (mostly, I imagine, members of Congress) actually reside in the District; the majority undoubtedly traveled from surrounding states such as Virginia, West Virginia, and Pennsylvania wherein gun regulations are lax, if not altogether anathema. These jurisdictions, are, with some exceptions, largely suburban and rural, with hunting and shooting common recreation activities; in Washington, D.C. this is not the case. In fact, with the exception of the plaintiff, Mr. Heller, certain members of Congress and other transient members of "official Washington", it's safe to say that the full-time citizens and voters of Washington, D.C. - i.e. those most likely to be victimized by illegal gun violence - strongly supported the ban, which was adopted by their duly elected representatives over thirty years ago. Which brings us back, of course, to the question of goose and gander.
The gun control issue is characterized by its tensions: the rights of the polity versus the rights of the individual, and states' rights versus federal constitutional requirements. Demographically and culturally, New Jersey is not Georgia, and New Jerseyans and Georgians, by and large, take a far different view of the proper role of guns in society: thus New Jersey law and Georgia law differ on how to regulate firearms. Now, this seems all well and good - to each his own - unless you happen to be a gun-owning Georgian transplanted in New Jersey, or a New Jerseyan of the minority opinion. Then you might consider New Jersey's more stringent gun laws an infringement on your right as an individual, irrespective of the majority consensus, to "keep and bear arms." Like supporters of the Thirteenth, Fourteenth, and Fifteenth Amendments marching in the segregated South in order to end the de facto impingement of the rights they confer, proponents of Heller perceive an assault on the Second Amendment anywhere as an injustice everywhere. Indeed, they may have a point: after all, advocates for the separation of church and state across the country become exercised when they see the Alabama Supreme Court install a monument to the Ten Commandments in a public courthouse, and supporters of reproductive rights nationwide bemoan the statutory hurdles placed before a woman seeking an abortion in Mississippi. That each of these examples is popular with the majority of Alabamians and Mississippians strikes them as irrelevant: the rights of the individual must be safeguarded against "the tyranny of the majority."
Obviously, there is a strong temptation to cry "apples and oranges"; after all guns kill people (although, in the eyes of many, so do abortions), and what's more, factors unique to certain jurisdictions - population density and poverty, chief among them - conspire to deprive guns of many of their "lawful" contexts. Yet this is just an extension of the same cherry-picking mindset that allows the Court to guarantee a narrowly crafted individual right to gun ownership for the purposes of home defense while concluding in dicta that a broad swath of gun control regulations are inherently reasonable (a contention which, it should be noted, would be more simpatico with the "collective right" opinion proffered by the dissenters). If we are going to accede to the view that the Second Amendment actually protects any right applicable today, then we must find that it is applicable everywhere, and not just where it is socially acceptable or convenient. Regardless of the consequences, we can ill afford to have some Amendments construed as being more equal than others, as has been the position of conservatives who dismiss rights to due process and freedom of religion with one hand while clutching a rifle in the cold, dead fingers of the other. People will die: this is the logic so crudely applied by Justice Scalia in dismissing the right of Guantanamo detainees to appear before American courts and contest their detention, so it is more properly applied to the still-unresolved question of the Second Amendment. If you don't like it, you can always amend the Constitution.
