The U.S. Supreme Court may not follow the election returns, as Finley Peter Dunne famously alleged, but it does follow the news, including the regular mass shootings and terror attacks over the past 20 years and the wave of public fear that follows the worst ones.
So lots of people on the liberal side of the 40-year-old war over limiting civilian guns took heart when the court voted 7-2 Monday not to review an appellate court's decision that a city ordinance banning semiautomatic assault weapons and large-capacity magazines was constitutional. That leaves the lower court's reasoning as the prevailing interpretation of the Constitution, a view, by the way, that prevailed before 2008 and the court's landmark ruling in District of Columbia v. Heller.
All five men who delivered the 2008 decision, that the Second Amendment gave individuals the right to own a gun for self-protection, are still on the court. That was the first time the law had been interpreted as being anything more than an individual right to have a gun to fulfill his duty to "bear arms" in conscripted militias. But now three of the same five men, all conservative Republicans, signed off on a law that strictly forbids civilians to carry weapons capable of mass killings. Could the slaughters at Colorado Springs and San Bernadino have awakened the consciences of the surly men in robes, too, and, if so, might Congress and legislatures be close behind?
Maybe not in the first instance and almost certainly not in the second. If there is one answer to the mass gun killings that ought to be universally accepted, even cheered, it is that military weapons that are only useful for quickly killing large numbers of people should not be available across the land. They are not needed for personal safety off the battlefield unless you're a lawman confronting people who have such weapons. As the federal appellate court said and seven of the nine supremes implied, the Constitution confers no right for people to keep weapons for mass killings.
No restrictions on guns and explosives or upon immigrants or the mentally disturbed can end murder and mayhem. We have always been a violent society and it has been made considerably more dangerous by the proliferation of handguns and military weapons since the 1960s. No gun regulation that is achievable will do more than slacken the mass slaughters that assault weapons and big magazines produce, but merely stifling the public unease that they can be gunned down in a hail of bullets at the mall or a concert is worth the game.
If Justices Anthony Kennedy, John Roberts and Samuel Alito were softened by the ambushes at Colorado Springs and San Bernardino, it had little or no effect on Congress, where last week every Senate Republican except Mark Kirk of Illinois voted against legislation to prevent people on the FBI's terrorist watch list from purchasing guns or explosives. The NRA says it would be just a step toward confiscating your squirrel gun as well. The measure has been introduced repeatedly and defeated each time since 2007. The Government Accountability Office has documented hundreds of suspected terrorists on the watch list buying weapons. All four Republican senators running for president raced to Washington to vote against the bill and another that would have expanded background checks to gun shows and online firearm sales to screen out convicted felons and the mentally ill.
So, despite the 2008 ruling on individual gun rights, the deterrent to gun remedies is not legal but political. Still, Monday's decision, or nondecision, on the Chicago ordinance is important. It would have been better if the court had accepted the review and removed any doubt about what the law is, that regulation of firearms is not only permitted by the Second Amendment but assumed.
Why they didn't is left to conjecture. Perhaps they are just weary of the fury that attaches nowadays to all these issues on all sides, from guns to abortion to immigration to religious establishment to Obamacare, and they decided to take a powder.
What we have is the two raging dissents by Clarence Thomas and, more interestingly, Antonin Scalia, who penned the 2008 order that the Second Amendment conferred an individual right to weapons aside from the military purpose spelled out in the prefatory clause "a well regulated military being necessary to the security of a free State ... ." Preserving the militias that Southern states thought were threatened by the new Constitution's grant of power to create a federal army might have been the primary reason for an arms amendment, but not the only one. Scalia's opinion in 2008 was a lengthy linguistic disputation on what an independent clause means and how the term "keep and bear arms" should mean "for self-defense in the home" as well as for military action.
But at the end of the treatise, Scalia softened on the key issue, regulation. People rightly should be alarmed by all the gun slayings, Scalia said then, and the government at all levels is perfectly right to seek antidotes, including sensible regulation of firearms. He said he didn't want to spell out the kind of regulations that would be permissible, as the dissenting justices said the court should do, but leave that to a line of future cases — like, perhaps, the suburban Chicago ordinance.
Nothing in Scalia's angry dissent Monday suggests that he would find bans on assault weapons and big magazines permissible if the case were actually before him, but you never know. The good thing is that if and when politics returns to a marginally rational state, the Supreme Court has sent a gesture if not an order that you can legally do something about mass slayings.