If the Supreme Court is as hermetically sealed from outside influence as many believe, then the recent carnage in Nebraska and Colorado will have no influence on its decision whether the Second Amendment gives individual Americans the right to bear whatever arms they choose or limits it to a collective right controlled by the state for the national defense.
But if the justices do not operate in a vacuum, then the two disturbed individuals who shot up an Omaha shopping mall and two Colorado religious centers with AK47 assault rifles never meant for civilian ownership will weigh heavily on their minds when they consider whether a lower court was correct in overturning the District of Columbia’s super-strict gun law. Congress, in the wake of these and the Virginia Tech tragedies, has just passed a law making it more difficult for those designated with mental problems to buy a firearm.
The justices also might note the “good citizen” in Texas who allegedly took the law into his own hands and, despite repeated warnings from a police dispatcher, went outside and blew away two men burglarizing a neighbor’s home almost in front of a plainclothes officer who had just arrived. The latter incident has caused a storm of protest from outraged citizens, who contend it was more racially motivated than a matter of protecting property. The suspect’s defense, at least on transcripts, was that Texas had passed a law saying that if his own property were threatened, he didn’t have to confine his protective actions to the inside.
Undoubtedly, those defending the unimpeded ownership of everything from automatic weapons to bazookas will cite the fact that the Colorado murderer was stopped by an armed female whose action probably saved dozens of lives. Right. But understand that she was carrying her weapon as a volunteer security person at the Colorado Springs mega-church where the incident took place. Also, she had been a trained police officer in Minneapolis before moving to Colorado. She wasn’t just some citizen who happened to be packing heat.
The court has not ruled on the validity of the Second Amendment since the late 1930s, and then not definitively — although it seemed to lean toward the collective argument. The nation’s highest judiciary takes a long time to come to grips with some thorny issues. The court somehow managed to deal with school segregation, but it took nearly a century after the Civil War, and it finally legalized abortion, but not before any number of desperate women had lost their lives trying to hold sway over their own bodies.
A betting man would have to put his money on the gun issue being decided on a 5-4 vote, with the odds favoring upholding the individual-rights position on which the lower court based its decision. There is, of course, a chance that the 5-4 goes the other way if a thoughtful justice like Anthony Kennedy swings toward the view that gun control is imperative to a civilized society. The gambler would note that the voices of 18th-century reasoning that belong traditionally to Antonin Scalia and his hip-pocket disciple, Clarence Thomas, would resound loudly for everyone being allowed to go around armed. Chief Justice John Roberts and Justice Samuel Alito could be expected to join them.
Of course, this is simply speculation based solely on past voting patterns. Whatever the decision, it isn’t expected to be forthcoming for some months, probably as late in the court’s term as June. But it seems important that going into the New Year that it is the most fervent hope that the nine justices somehow realize that the survival of this urban brand of democracy — as opposed to the rural kind that prevailed when the Constitution was written — depends on bringing some rational control over the culture of violence that is abetted by our fascination with firearms.
If that is to be accomplished, the court has to be aware of the lives that already have been lost in our schools, shopping centers, churches and elsewhere because of this utter insanity. If the justices insist, however, that the amendment is so ambiguous as to leave the matter in doubt, they will have done this nation a great harm as well as established their imperviousness to conditions around them, validating the arguments of those who believe they are hermetically sealed from reality.
(Dan K. Thomasson is former editor of the Scripps Howard News Service.)