New SCOTUS Term: Watch for Loosening of Gun Regulations

When John G. Roberts Jr. testified at his confirmation hearings, he promised to be an umpire at the baseball game of constitutional law, cautiously calling balls and strikes with his eyes firmly fixed on a well-understood and relatively static strike zone. Well, as chief justice, he's turning out to be more like the owner of a baseball team, or even the commissioner, eager to rewrite the rule book if not build a whole new ballpark. His activism is a boon to conservatives─but not necessarily good news for Republicans.

The latest example of the Roberts Court's activist ambitions is its quick acceptance, for decision next year, of a gun-rights appeal from Chicago. Last year the court ruled 5-4 that the right to bear arms flows to and from individuals, even though it is mentioned in the Constitution in the context of a "well-regulated militia." Reading the Constitution in that way, the court struck down a handgun ban in the District of Columbia. But there was some doubt about whether the court's reasoning would apply in a state, as opposed to the federal District of Columbia, and how the enunciation of a new fundamental individual right should be applied. Now the court will take up the appeal of a case of a handgun ban in Chicago to clear things up.

Expect another sweeping smackdown. First, the court has already laid down a new principle─which, believe it or not, had never been directly addressed. Second, if my sense of the Roberts Court is correct, they are going to seek the most sweeping rulings they can manage to get on what they regard as their key Bill of Rights issues─gun rights, freedom of the marketplace from federal regulation, corporate rights to free speech, and official public religious expression, to name four─before the arrival of a moment they dread: when President Barack Obama get's the chance to nominate an ideological tide-changing justice.

Until that moment, if it ever comes, it's going to be pedal to the metal.

A lawyer I know who knows the Supreme Court and its habits as well as anyone in Washington (but who can't speak on the record because he practices before the court) agrees. He is a cautious man, not given to wild pronouncements. But he sees Roberts and his three activist conservative colleagues─Justices Scalia, Thomas, and Alito─as being increasingly bold and assertive as they try, and generally succeed, to drag the more moderate (or some would say confused) Justice Anthony Kennedy along with them. This lawyer sees these men─especially the Core Four─as eager to carry out a sweeping campaign to lay down or rewrite as many fundamental holdings as they can get their hands on.

What that means in the case of guns is a full-scale legal assault on and sweeping away of many if not most existing regulations on their sale and possession of handguns, pistols, and rifles, at least initially. If the court decrees the use of the standard method of assessing limits on fundamental rights, it will require states and localities to show a "compelling state interest" for the regulation they seek, and a narrowly carefully tailored statute to address it. It's what the lawyers call "strict scrutiny"─and it will kill off laws by the score, at least at first.

But Republicans should beware of what they have wished for here. It is true that there has been a marked, even dramatic, decline in public support for tougher gun-control measures. For example, the Gallup poll in 1959 found that 60 percent of Americans supported a ban on the private possession of handguns. A half century later that number has been cut in half, to 30 percent. In 1991, 78 percent of Americans said that they wanted "more strict" regulation of guns; today less than 50 percent do.

And yet, if you ask Americans whether they want easier and less-strict guns laws, the answer over the years is consistent: less than 10 percent of voters say yes. That has been true since at least 1990, and probably for decades before that.

If the court acts as I think it will, by next year (if not before) states and local governments will find themselves overrun by gun-rights activists, and we'll have laws across the country like the one in Arizona, which now allows owners of guns not only to carry and conceal them in public but carry and conceal them in any bar that doesn't have a sign telling therm they can't enter if they're packing. I could be wrong (I often am), and I know that 43 percent of Americans have guns in their homes. Having a gun in your home (or a rifle for hunting) is one thing. Carrying a gun into a bar is quite another─and I can't imagine that politicians who allow it are going to be popular with the American voter.

Even Democrats like cowboys, but even Republicans (or at least independents) don't want to bring back the Wild West.