Why America Cannot Deal With Its Guns Problem Until It Deals With Its Supreme Court Problem

The Supreme Court’s 2008 decision in District of Columbia v. Heller held for the first time in American history that the Second Amendment protects an individual right to carry a firearm. Yet even that decision makes clear that this is not a right to “carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller permits concealed carry bans. It allows bans on “dangerous and unusual” weapons such as machine guns or assault rifles. And it allows laws banning “the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Heller also makes clear, however, that the single most deadly kind of firearm sold in the United States — handguns — enjoy special constitutional status. As “the most preferred firearm in the nation to `keep’ and use for protection of one’s home and family,” Justice Scalia wrote in Heller, handguns cannot be banned. Since Heller, lower courts relied on its reasoning to strike lesser regulation of handguns as well.

Handguns are not simply the most commonly chosen weapon for lawful firearms owners, however, they are also the weapon of choice for murderers. According to the FBI, firearms accounted for approximately 47,500 murders in 2001–2005. Nearly 8 in 10 of these murders involved a handgun:

So there are any number of sensible reforms, such as assault rifle bans or restrictions on concealed carry, which Congress could enact right now. Until the Supreme Court removes the special protections accorded to handguns, however, lawmakers will have to fight the most dangerous weapon in the nation with one arm tied behind their backs.