Supreme Court's Second Amendment Stretch: Conflict at the Heart of Gun Rights Ruling

On Monday, the U.S. Supreme Court declared that the Second Amendment applies to the states as well as the federal government, which essentially means that all Americans now have an individual right to "possess a handgun in the home for the purpose of self-defense" (see p. 44). With that right now inviolable, I wonder what the National Rifle Association's new rallying cry will be. After all, in the wake of this ruling, the government will no longer try to pry the gun from Charlton Heston's hands.

The victory for gun rights advocates also contains some historic irony: The new, re-branded face of Second Amendment rights is an elderly African American man from Chicago, not a rural, white, right-wing male, as gun rights advocates are stereotypically thought to be.

How broad is the expanded right to keep and bear arms? Only future litigation will reveal that. The maximum scope of the right was not determined Monday, only the minimum boundary: No American government, whether federal, state or municipal, can now ban the possession of handguns in the home for self defense.

To imagine what might come next, one should consider whether the laws praised or sought by the Brady Campaign to Prevent Gun Violence or condemned by the NRA's Institute for Legislative Action will survive Monday's decision. For example, will assault weapons bans, or limits on the number of bullets in a magazine pass muster?

Justice Thomas Takes an Activist Stance

The court was deeply divided in the typical way, splitting on traditional ideological lines 5-4, with Justice Alito writing for the majority, joined by Justices Scalia, Kennedy, Roberts and Thomas, versus Justices Stevens, Ginsberg, Breyer and Sotomayor.

But although the practical outcome of the opinion was clear, its reasoning wasn't, because the court was also divided in an unusual fashion. The conservatives split 4-1 with Justice Thomas by himself on precisely how the Second Amendment applied to the states -- through the Due Process Clause, or the Privileges and Immunities Clause of the 14th Amendment.

While that may seem like a distinction that only a lawyer could love, the precise clause that underpins this ruling matters greatly. The court has long held -- since five years after the 14th Amendment was ratified -- that the Privileges and Immunities clause was essentially meaningless. If the Supreme Court has suddenly decided to give it weight, Thomas-style, the floodgates of litigation could open as various groups seek to expand all federal rights to the states, an outcome argued for by people on both ends of the political spectrum.

Because Justice Thomas based his opinion in the Privileges and Immunities Clause, the possibility of the clause's eventual revival is now more probable, even though the other four majority judges explicitly rejected the idea. The more immediate consequence is that Monday's ruling seems classically "activist" in the pejorative sense: a 5-4 majority decreeing a new federal right without being able to name the source of that right in the text of the Constitution.