Gun Plans Don’t Conflict With Justices’ ’08 Ruling

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Legal experts say the decision in the case, District of Columbia v. Heller, has been of mainly symbolic importance so far. There have been more than 500 challenges to gun laws and gun prosecutions since Heller was decided, and vanishingly few of them have succeeded.

The courts have upheld federal laws banning gun ownership by people convicted of felonies and some misdemeanors, by illegal immigrants and by drug addicts. They have upheld laws making it illegal to carry guns near schools or in post offices. They have upheld laws concerning unregistered weapons. And they have upheld laws banning machine guns and sawed-off shotguns.

Nor does Heller impose any major hurdles to many of the most common legislative proposals in the wake of the Newtown shootings, said Adam Winkler, a law professor at the University of California, Los Angeles, and the author of “Gunfight: The Battle Over the Right to Bear Arms in America.” Among the responses that Heller allows, he said, are better background checks, enhanced mental health reporting and a ban on high-capacity ammunition clips.

There is one major possible exception to the trend, and it is quite fresh. Last week, a divided three-judge panel of the United States Court of Appeals for the Seventh Circuit, in Chicago, struck down an Illinois law that banned carrying loaded guns in public. Judge Richard A. Posner, writing for the majority, said the ruling was required by the Heller decision.

The Heller case, decided by a 5-to-4 vote, struck down a ban on handguns kept in the home for self-defense, saying it violated the Second Amendment.

After the shootings on Friday in Newtown, which killed 20 children and 7 adults before the gunman took his own life, policy makers — mostly Democrats — have called for tougher gun laws. Of the 12 deadliest mass shootings in American history, six have occurred since 2007.

The proposed measures include bans on some kinds of weapons and ammunition magazines, more sharing of information among government agencies, and an expansion of the settings in which background checks are required. In California, Democratic lawmakers are seeking to regulate ammunition sales more tightly.

The main obstacle to the passage of such measures is likely to be politics, not constitutional law, scholars say.

“We are aware of the problem of handgun violence in this country,” Justice Antonin Scalia wrote for the majority in the Heller decision. “But,” he added, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”

Still, the decision also contained a long list of laws and regulations that would, the court said, be unaffected. Among them were “laws forbidding the carrying of firearms in sensitive places such as schools.”

“Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,” Justice Scalia wrote. Government buildings in general could still ban guns. And the court said it had no quarrel with “laws imposing conditions and qualifications on the commercial sale of arms.”

Justice Scalia added that laws banning “dangerous and unusual weapons” are “another important limitation on the right to keep and carry arms.” He gave an example: “M-16 rifles and the like.”

When the case was argued in 2008, Justice Scalia suggested that other kinds of weapons and ammunition could be regulated. “I don’t know that a lot of people have machine guns or armor-piercing bullets,” he said. “I think that’s quite unusual.”

Jonathan E. Lowy, director of the Brady Center to Prevent Gun Violence’s Legal Action Project, said the Heller decision thus did very little to restrict possible Congressional responses to the Newtown shootings.

The Supreme Court has not yet ruled on an issue left open in Heller: whether the Second Amendment forbids blanket bans on having guns for self-defense outside the home. Last week, the Seventh Circuit said it did.

The two central words in the phrase “to keep and bear” have different meanings, Judge Posner wrote, and the second one “is unlikely to refer to the home.”

“A Chicagoan,” he wrote, “is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower.”

Judge Posner reviewed the empirical literature about the practical consequences for crime and safety of bans on carrying guns in public, and he found it inconclusive. Justice Stephen G. Breyer came to a similar conclusion about gun-control laws generally in his dissent in Heller.

“Anyway,” Judge Posner wrote, “the Supreme Court made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts.”

A ban short of a blanket prohibition might be permissible, he added, and the court gave the Illinois Legislature 180 days to enact a new law. One suggestion: it could prohibit guns “merely in particular places, such as public schools.”

The decision is in tension with recent ones from federal appeals courts in New York and Virginia, which is often a sign that an issue is heading to the Supreme Court.

For now, though, there is something like consensus that the court’s existing decisions will not stand in the way of most legislative responses to the recent shootings.

In a speech to the Brady Center in October, former Justice John Paul Stevens, who dissented in Heller and retired in 2010, said the decision was wrong but limited.

“Even as generously construed in Heller,” he said, “the Second Amendment provides no obstacle to regulations prohibiting the ownership or use of the sorts of automatic weapons used in the tragic multiple killings in Virginia, Colorado and Arizona in recent years. The failure of Congress to take any action to minimize the risk of similar tragedies in the future cannot be blamed on the court’s decision in Heller.”

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Reporting conflict in Syria

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Some months ago, I reflected on the difficulties of reporting from Syria. The deaths of Marie Colvin and a dozen other journalists in the country so far this year has given us cause to think long and hard about the very real dangers there. But so too does the complexity of the situation on the ground in Syria, and the need to try to separate fact from fiction.

Damascus prides itself on being the oldest, continually inhabited city in the world. It also has the longest history of rumours passing for fact.

I spent three days in Syria earlier this week, talking to all sides involved in the current conflict. Waking up on my first morning, social media was alive with reports that the mobile phone network was down. True enough, I could access the hotel wi-fi but not place a call. On Twitter and Facebook, people claimed the phones had been turned off as the precursor to a major military assault. The truth it seems was more prosaic. It's the high school exam season in Syria - diplomats claimed the real reason was the phone network had been turned off to prevent students cheating. Even in a conflict zone, good grades count for a lot.

In the aftermath of the massacre at Houla last month, initial reports said some of the 49 children and 34 women killed had their throats cut. In Damascus, Western officials told me the subsequent investigation revealed none of those found dead had been killed in such a brutal manner. Moreover, while Syrian forces had shelled the area shortly before the massacre, the details of exactly who carried out the attacks, how and why were still unclear. Whatever the cause, officials fear the attack marks the beginning of the sectarian aspect of the conflict.

In such circumstances, it's more important than ever that we report what we don't know, not merely what we do. In Houla, and now in Qubair, the finger has been pointed at the shabiha, pro-government militia. But tragic death toll aside, the facts are few: it's not clear who ordered the killings - or why.

Given the difficulties of reporting inside Syria, video filed by the opposition on Twitter, Facebook and YouTube may provide some insight into the story on the ground. But stories are never black and white - often shades of grey. Those opposed to President Assad have an agenda. One senior Western official went as far as to describe their YouTube communications strategy as "brilliant". But he also likened it to so-called "psy-ops", brainwashing techniques used by the US and other military to convince people of things that may not necessarily be true.

A healthy scepticism is one of the essential qualities of any journalist - never more so than in reporting conflict. The stakes are high - all may not always be as it seems.

Jon Williams is the BBC World News editor.

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