Susan Estrich: Gun Laws in the Crosshairs

Great news! More guns in the District of Columbia!

Whether that’s good news or not may depend on whether you live there. According to the academic studies, gun control has cut homicides and suicides by over 20 percent.

John McCain and Barack Obama, who spend enough time in the District to know that people there don't get to vote for president, supported the Supreme Court’s decision bringing more guns to the District while taking very different-sounding stances.

McCain embraced gun owners everywhere, giving liberals and progressives, especially women, one more reason, if one more were needed, why he isn’t the logical inheritor of Hillary Clinton’s support.

Obama said the District had gone too far (translate: I won’t take away your handguns, no, this won’t be the issue they try to scare you with), but that reasonable controls on the kinds of guns people can own and who can own them are OK.

The way I read the court’s opinion is that it is, in fact, still up for grabs, which is to say, relegated to footnote, how things would go if it were a state (as opposed to the federal District of Columbia) that were deciding to regulate handguns.

The right of the people to bear arms, now that we’ve recognized it, may be a right as against the could-be-too-powerful federal government, but not the states, whose militia rights also are invoked by the Second Amendment.

Whatever this means: "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

Prior to the court’s decision in the D.C. v. Heller case last week, the question whether the Second Amendment gives any rights to individuals to bear arms was much debated, particularly on slow days in talk radio. I could do either side in my sleep, truth be told.

Guns kill. No, guns don’t kill; people with guns kill. Take the guns away from the people and you’ll save lives. Let people defend themselves with guns and you’ll save lives. Places without guns are safer. Some places with more guns are safer than places with fewer guns. Here’s a terrible story of a person mistakenly shot by her own father. Here’s a terrible story of a father who couldn’t save his own child.

Of course, rights in our system aren’t actually guarantees that you get something (think free speech, for instance, when no one gives out megaphones; or think about abortion, if you must), but limits put on government (at some level) to not take away what you may or may not actually have.

The government can’t take away your megaphone, although it doesn’t have to give you one, and it can’t tell you what you’re allowed to say on the one you have (except some of the time). The government can’t unduly burden the right to abortion; it can only impose due burdens and not undue ones and only courts can tell which is which.

In this case, only courts will be able to tell which regulations of guns are reasonable and which are not. But even before they start figuring that out, they have to decide whether a city and state deciding to regulate handguns, such as Chicago, Ill., which was sued on Friday morning, are subject to the same limits imposed on the federal government by the court’s decision.

Does the Second Amendment apply to the states through the 14th? Not necessarily. Even Justice Scalia, himself, has suggested otherwise.

More importantly, perhaps, with four votes sitting there ready to give the feds a pass on Second Amendment limits, presumably they’d all be willing to vote to give the states a pass as well, which means it’s really up to Justice Kennedy if he thinks the 14th "incorporates" the Second, and, remember, it’s conservatives who usually are fighting against aggressively pro-incorporation arguments (giving too many rights) and liberals who usually are fighting for them, meaning eveyone gets to pretend to be principled while switching sides.

Then again, it’s also usually conservatives who come in at this point and say that if judges have to be making all this law, then that is as good a sign as any that they have no business doing it, that this is really "judge-made" law and judicial activism run amok and all that.

Except, of course, that you won’t hear too many conservatives bemoaning judicial activism in the name of put-upon legitimate gun owners. That will be the liberals who’ll be worried about courts going too far and doing too much.

The Second Amendment, in terms of the substance of our arguments, is as much an exercise in intellectual agility as anything in the law. Can liberals argue against rights, except, that is, for "states rights," which we would be supporting?

Can conservatives swallow hard for some judge-made law, imposing limits on government power in the name of individual rights? Does it matter if none of it exactly "flows" from the text?

Or maybe it's just that guns are "different," which everyone could probably agree that they certainly are.

Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was Professor of Law at Harvard Law School and the first female president of the Harvard Law Review. She is a columnist for Creators Syndicate and has written for USA Today and the Los Angeles Times.

Estrich's books include the just published "Soulless," "The Case for Hillary Clinton," "How to Get Into Law School," "Sex & Power," "Real Rape," "Getting Away with Murder: How Politics Is Destroying the Criminal Justice System" and "Making the Case for Yourself: A Diet Book for Smart Women."

She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel, in addition to writing the "Blue Streak" column for