When Will the Supreme Court Affirm the Constitutional Right to Not Be Shot?


This song is getting tiresome and out of tune: the Supreme Court, 5 to 4, has just decided that, essentially, no state or local government may prevent our proud citizens from owning guns. But what about the states’ rights, to do as they see fit? Clearly the owning of guns is not an issue regarding which we must protect our sovereign states from those meddlers in the Congress. And what about everyone’s right to liberty-our right to not be shot and stuff? In light of a brutal gun attack on Saturday- three people in a crowd were randomly shot Saturday night in San Francisco at a gay event-it seems worthwhile to look at Justice Stevens’ rather stern dissent.

The notion that a right of self-defense implies an auxiliary right to own a certain type of firearm presupposes not only controversial judgments about the strength and scope of the (posited) self-defense right, but also controversial assumptions about the likely effects of making that type of firearm more broadly available. It is a very long way from the proposition that the Four­teenth Amendment protects a basic individual right of self-defense to the conclusion that a city may not ban handguns….

[F]irearms have a fundamentally ambivalent rela­tionship to liberty. Just as they can help homeowners defend their families and property from intruders, they can help thugs and insurrectionists murder innocent victims. The threat that firearms will be misused is far from hypothetical, for gun crime has devastated many of our communities. Amici calculate that approximately one million Americans have been wounded or killed by gunfire in the last decade. Urban areas such as Chicago suffer disproportionately from this epidemic of violence. Hand­ guns contribute disproportionately to it. Just as some homeowners may prefer handguns because of their small size, light weight, and ease of operation, some criminals will value them for the same reasons. ….

Hence, in evaluating an asserted right to be free from particular gun-control regulations, liberty is on both sides of the equation. Guns may be useful for self-defense, as well as for hunting and sport, but they also have a unique potential to facilitate death and destruction and thereby to destabilize ordered liberty. Your interest in keeping and bearing a certain firearm may diminish my interest in being and feeling safe from armed violence. And while granting you the right to own a handgun might make you safer on any given day-assuming the handgun’s marginal contribution to self-defense outweighs its marginal contri­bution to the risk of accident, suicide, and criminal mis­chief-it may make you and the community you live in less safe overall, owing to the increased number of hand­ guns in circulation. It is at least reasonable for a democ­ratically elected legislature to take such concerns into account in considering what sorts of regulations would best serve the public welfare.