- WSJLAW | JUNE 28, 2010, 12:27 P.M. ET
High Court Rules in Favor of Gun Rights
By NATHAN KOPPEL
WASHINGTON—The Supreme Court ruled for the first time that gun possession is fundamental to American freedom, giving federal judges the power to strike down state and local weapons laws for violating the Second Amendment.
In a 5-4 ruling, the court held that the Second Amendment's right to keep and bear arms is a fundamental right that binds states.
"Self defense is a basic right, recognized by many legal systems from ancient times to the present day," wrote Justice Samuel Alito. He was joined in reaching the result by Chief Justice John Roberts and justices Anthony Kennedy, Antonin Scalia and Clarence Thomas.
In 2008, the Supreme Court struck down a handgun ban in the District of Columbia, a federal enclave. Justice Alito's opinion said that ruling "unmistakably" required the court likewise to overturn laws in Chicago and its suburb of Oak Park, Ill., that limited handgun possession.
Justice Thomas agreed with the majority on the result but wrote a concurrence offering different constitutional logic for viewing the right to bear arms as a fundamental right.
As it did in 2008, the court's majority cautioned that the right to keep and bear arms is not "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."
Justice Alito wrote that despite "doomsday proclamations," the ruling "does not imperil every law regulating firearms."
The Supreme Court's ruling is likely to lead to years of litigation across the country as lower courts decide how far the right to bear arms extends and which restrictions are unconstitutional. Justice John Paul Stevens, in dissent, said the 2008 ruling has already triggered a "tsunami of legal uncertainty." He predicted more "confusion, upheaval and burden on the states."
The legal question before the court had much to do with questions of constitutional history. Before the Civil War, courts held that the Bill of Rights applied only to the federal government. After the Union victory, the Reconstruction amendments were adopted to elevate individual rights over state powers and cement the federal role in enforcing them.
The Supreme Court has subsequently held that many constitutional rights considered fundamental to American principles of liberty override state laws. However, more technical provisions—such as the Fifth Amendment requirement that grand juries approve criminal indictments—apply only to the federal government and don't necessarily bind states.
Monday's ruling elevates the Second Amendment right to bear arms to the status of a fundamental right that states can't abridge.
On the Docket
"It is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty," wrote Justice Alito.
Justice Stephen Breyer, in a dissent joined by justices Ruth Bader Ginsburg and Sonia Sotomayor, said the majority ruling misinterpreted history. "[N]othing in 18th-, 19th-, 20th-, or 21st-century history shows a consensus that the right to private armed self-defense…is 'deeply rooted in this nation's history or tradition' or is otherwise 'fundamental,' " Justice Breyer wrote.
Justice Stevens, who served his last day at the court Monday, dissented separately.
"Recognizing a new liberty right is a momentous step," he wrote. He said he would have proceeded more cautiously and given more leeway to local governments. "[T]his is a quintessential area in which federalism ought to be allowed to flourish without this court's meddling," he wrote.