The good news for gun control is that this new-found right may not restrict gun-control laws very much.

The 5-4 decision does appears to doom the exceptionally strict bans imposed by Chicago and Oak Park, Ill., on possession of handguns, even in the home for self-defense, that were before the court in the case at hand. A strict New York City handgun ban may also fall.

But no statewide gun-control law appears to be in immediate jeopardy, because nothing in Justice Samuel Alito’s majority opinion appeared to undercut the court’s assertions in a 2008 decision striking down a similarly strict handgun ban in the District of Columbia that a wide range of less stringent gun-control laws could be upheld as reasonable public-safety measures.
“We made it clear in Heller,” Alito wrote, “that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,’ ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.’ We repeat those assurances here.”

The 2008 decision held for the first time that the 2nd Amendment restricts federal gun-control laws by guaranteeing an individual right to own a gun for self defense, and not merely for service in the now-defunct state militias, as the four dissenters had argued.

Because the District of Columbia is a federal enclave, the 2008 decision did not resolve whether the 2nd Amendment also restricts state and local gun-control laws. That was the issue resolved by Monday’s decision.

The court split in both decisions along the 5-4 conservative-liberal line that has become so familiar, with the ideologically eclectic Justice Anthony Kennedy joining the four-justice conservative bloc.

Today’s decision was McDonald v. City of Chicago. The 2008 decision was District of Columbia v. Heller.

The majority, the two concurring opinions, and the two dissenting opinions in McDonald consumed 208 pages. The learned, historically rich debate focused the extent to which the post-Civil War 14th Amendment had been designed to apply – “incorporate,” in legal lingo–to the states and their localities the 2nd Amendment and other provisions of the Bill of Rights.

Those provisions had originally restricted only the federal government. The court has previously applied almost all of the first 10 amendments to the states and their localities except the 2nd Amendment.

In holding that the 14th Amendment was intended to apply the 2nd Amendment to the states, Justice Alito stressed especially the evidence that the framers of the 14th Amendment wanted to prevent Southern white racists from disarming freed slaves, the better to subjugate them.

Ninety-year-old Justice John Paul Stevens, in his last day of his 34 years on the court, wrote one dissent and Justice Stephen Breyer wrote the other, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

In a day of unusual solemnity at the Court, Chief Justice John Roberts began the session with a tribute to Justice Ginsburg’s husband Martin Ginsburg, who died Sunday. Roberts ended the session with a tribute to Justice Stevens. “We will miss your wisdom, your perceptive insights, and vast life experience, your unaffected decency, and resolute commitment to justice,” Roberts said to Stevens.

The Court also issued three other important decisions Monday, including a patent decision of enormous importance to the business community and software companies especially.’

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State lawmakers have done a lot since President Obama’s election to shake off Uncle Sam, passing "sovereignty" resolutions and a record number of laws that specifically defy Congress on issues such as legalized marijuana and health-care reform. Most make the same claim: that the U.S. Constitution gives the federal government power to regulate commerce between states but doesn’t permit interference in purely local affairs. Later this year, the Montana Firearms Freedom Act, which proclaims that

State lawmakers have done a lot since Pre…

State lawmakers have done a lot since President Obama’s election to shake off Uncle Sam, passing "sovereignty" resolutions and a record number of laws that specifically defy Congress on issues such as legalized marijuana and health-care reform. Most make the same claim: that the U.S. Constitution gives the federal government power to regulate commerce between states but doesn’t permit interference in purely local affairs. Later this year, the Montana Firearms Freedom Act, which proclaims that

State lawmakers have done a lot since President Obama’s election to shake off Uncle Sam, passing "sovereignty" resolutions and a record number of laws that specifically defy Congress on issues such as legalized marijuana and health-care reform. Most make the same claim: that the U.S. Constitution gives the federal government power to regulate commerce between states but doesn’t permit interference in purely local affairs. Later this year, the Montana Firearms Freedom Act, which proclaims that guns manufactured in Montana and sold in state are not subject to federal rules such as background checks, is slated to become the first of these Obama-era commerce challenges tested in court. But the case, which originated when a gun-rights group sued the Justice Department for threatening a crackdown, shouldn’t give separatists hope: it’s doomed to fail, as will similar rebukes.

That’s because no state is an island (Hawaii included), and Congress can regulate anything that could jump state lines. It’s a category, says George Mason University professor Nelson Lund, a Second Amendment scholar, that excludes almost nothing-certainly not pot and guns.

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But debate about the gun case, McDonald v. City of Chicago, has ranged far beyond guns. It has spawned an alliance of convenience among distinguished scholars in the progressive and conservative-libertarian camps.

Both have filed amicus briefs that take the gun-rights side while mainly seeking to expand other rights as well.

The detailed constitutional arguments show with unusual clarity why efforts to expand rights — whether favored by conservatives or liberals, or both — typically boil down to a bare-majority judicial faction using highly debatable theories to override democratic governance.

Many of the briefs in the gun case urge the Court to revive the 14th Amendment’s open-ended but long-moribund "privileges or immunities" clause and use it as a new fount of judicial power to strike down enactments imposed by majority rule. But the privileges-or-immunities alliance breaks down when its members are pressed on which laws should be struck down and which rights should be expanded or created.

Conservative libertarians who want the courts to reject economic regulations stress the considerable evidence that the authors of the privileges or immunities clause wanted to protect property and contract rights as well as gun rights.

Progressive scholars, on the other hand, see the same principles evolving over 142 years to mandate judicial protection of welfare rights — called "the new property" by some — as well as privacy, abortion, gay rights, assisted suicide, and other liberal favorites about which nobody was thinking when the 14th Amendment was adopted in 1868.

Both groups are armed with powerful historical evidence that the 1873 precedent that gutted the privileges or immunities clause, the Slaughterhouse Cases, misread the intent of the amendment’s framers. The precedent also paved the way for subsequent decisions that helped Southern whites subjugate freed slaves by, among other things, disarming them and leaving them defenseless against the Ku Klux Klan.

But the justices who spoke during the oral argument on McDonald — including those pushing to expand gun rights — were hostile to the privileges-or-immunities justification. Justice Antonin Scalia deprecated the clause as "the darling of the professoriate."

Why so dismissive?

Were the justices showing respect for a deeply rooted, 137-year-old precedent, as several argued? Well, sure. They always show respect for precedent — except when they don’t.

Were they showing judicial restraint, by passing up a chance to grab more power? Doubtful. None of the nine justices has shown much modesty in finding support for his or her own policy preferences in the Constitution.

Were they worried about what their ideological adversaries (and future adversaries) might do with an open-ended license to conjure up new "privileges or immunities" by refracting selected fragments of historical evidence through their own philosophies?

That’s my guess. The justices know that whatever clarity the text of this and other constitutional clauses may have once had has receded over many decades, as the clarity of a road sign recedes in the rearview mirror. They also know that the future content of a revived privileges or immunities clause would likely hinge on nothing more objective than the ideological leanings and policy preferences of future justices and the presidents who pick them.

You want the Court to comb through 19th-century history and find a mandate for unfettered capitalism? Vote Republican. You want it to impose welfare rights, with a heavy dose of judicial empathy? Vote Democratic. And hope for well-timed vacancies and long-lived justices who share your policy preferences.

Scalia, the great originalist, suggested that ancient and deeply rooted precedents trump original meaning.

Meanwhile, the notion of constitutional rights as immutable principles protecting our liberties from majoritarian tyranny morphs into rule by whichever faction happens to have a one-vote majority on the Supreme Court.

Shifting majorities have long advanced their own views incrementally by reading ambiguous historical evidence as supporting causes ranging from gun rights to gay rights, both of which have been put over the top by Justice Anthony Kennedy’s conservative leanings on the former and liberal leanings on the latter.

But none of the nine — except perhaps Justice Clarence Thomas, who was silent as usual during the argument in the gun case — seems prepared to risk giving a privileges-or-immunities blank check to whichever faction may control the Court in the future.

Some history: The 14th Amendment was adopted in 1868, after many months of congressional hearings, primarily to give freed slaves the rights of full citizens and give Congress the power to override oppressive state and local laws, especially in the South.

Here’s the critical language for purposes of the current debate: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; … "

Historical evidence strongly suggests that the first clause was intended to make applicable against the states and their localities all provisions of the first 10 amendments (the Bill of Rights) — which had previously limited only the federal government — and perhaps also an unspecified number of other, unenumerated rights.

But the Supreme Court virtually nullified this broad language in the 1873 Slaughterhouse Cases by narrowing it to a few "privileges" and "immunities" rooted in federal citizenship, such as the right to be protected while at sea.

Subsequent decisions using similar logic helped facilitate the subjugation of blacks in the South for most of the next century. These rulings also help explain why most of the Bill of Rights, including the First Amendment, was not applied to state or local governments until the 1920s and thereafter.

By then, the Supreme Court had found another way to apply provisions of the Bill of Rights — almost all of them, eventually — against the states, along with other judicially recognized (or, critics say, judicially invented) rights including family privacy, contraception, and abortion. The Court construed the 14th Amendment’s due process clause as "selectively incorporating" against the states those rights that the justices deemed fundamental to American liberty.

This "substantive due process" doctrine has been assailed by many conservative critics — especially since Roe v. Wade — and some liberals as a judicial power grab inconsistent with the language of the due process clause, which by its terms guarantees only procedural fairness.

But advocates of expansive judicial power to create new rights — liberals and conservative libertarians alike — have responded with strong evidence that the long-buried privileges or immunities clause was originally understood to give courts even broader powers than the due process clause.

Despite this evidence, Scalia, the great originalist, suggested that ancient and deeply rooted precedents trump original meaning. "Even I have acquiesced" in the legitimacy of substantive due process, he said, even though "I think it’s wrong."

A deeper question, in my view, is this: Why should the words of a few congressional leaders more than 140 years ago — as seen through the diverse, distorting lenses of current Supreme Court majorities — trump the views of elected majorities today?

As Justice Stephen Breyer asked, why should equivocal evidence of what was intended in 1868 wipe out a handgun ban thought by Chicago’s elected leaders to have saved hundreds of 21st-century lives?

These fundamental questions about the 14th Amendment have come to the fore because of a big 5-4 decision in 2008. The Court held for the first time that the Second Amendment protects a right to "keep and bear arms" not only for service in now-defunct state militias — as had long been widely assumed — but also for self-defense against intruders and other, so-far-unspecified, individual uses.

The 2008 decision struck down the District of Columbia’s broad handgun ban, while noting that other gun controls imposed by the federal government and its enclaves would be upheld if deemed reasonable by the courts. It left open the question before the Court now: Did the 14th Amendment make the same (or similar) gun rights applicable against state and local regulation?

I could see no clear winner in the 2008 decision’s learned but clashing interpretations of the Second Amendment. "It seems almost perverse," I wrote then, "to be assessing what gun controls to allow based not on examining how best to save lives but on seeking to read the minds of the men who ratified the Bill of Rights well over 200 years ago."

It’s almost as hard to read the minds of those who wrote the 14th Amendment 142 years ago. They do seem to have intended to protect the rights of freed slaves and others to have guns to defend themselves against KKK terror. But the rest, or most of it, is in the eye of the beholder.

This article appeared in the Saturday, March 6, 2010 edition of National Journal.

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The decision, Parker v. District of Columbia, is right and should be affirmed. And contrary to a widespread myth, confirmation by the justices that Americans have an individual right to keep and bear arms would not invalidate reasonable gun control laws.

To put my own biases on the table: I don’t hunt or own a gun. I support reasonable gun controls but consider the D.C. law unreasonable. I had never fired a pistol until a recent vacation trail ride, when I missed a large target with all six shots. This amused my 19-year-old daughter, who scored five out of six.

Now to the Second Amendment. It states: "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."

For decades, most courts and legal scholars have treated this as essentially a dead letter. Their reasoning goes like this: The amendment’s first clause means that its sole purpose was to guarantee each state a collective right to have self-armed private citizens available as a military force-in-waiting (militia) to fight off federal encroachments; therefore, the second clause protects no individual right; state militias long ago became defunct; so the Second Amendment is an inoperative historical anachronism.

Judge Silberman shreds this conventional wisdom in a 58-page opinion joined by Judge Thomas Griffith. In doing so Silberman builds on the work of a few leading scholars of diverse political persuasions.

"At first blush," Silberman begins, "it seems passing strange that the able lawyers and statesmen in the First Congress (including James Madison) would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as, ‘Congress shall make no law disarming the state militias’ or ‘States have a right to a well-regulated militia.’ "

In addition, the opinion points out, the Framers vested in "the people" the rights protected by the First, Fourth, and Ninth Amendments as well as the Second. Nobody contends that those other provisions protect no individual rights; indeed, "the Bill of Rights was almost entirely a declaration of individual rights," Silberman says. And the Supreme Court said in 1990 that "the people" means the same thing in the Second Amendment as it does in the First, Fourth, and Ninth.

The Founders’ language strikes another "mortal blow to the collective-right theory" in explicitly guaranteeing a right to "keep" arms, as well as to "bear" them, Silberman asserts: " ‘Keep’ is a straightforward term that implies ownership or possession of a functioning weapon by an individual for private use."

And while no other Bill of Rights provision includes a preamble clause stating its civic purpose, many state constitutions of that era did begin with prefatory clauses stating "a principle of good government that was narrower than the operative language used to achieve it," Silberman explains.

Similarly, in the Second Amendment context, "preservation of the militia was the right’s most salient political benefit—and thus most appropriate to express in a political document" that was designed to assure "Antifederalist opponents of the 1787 Constitution [that] the militia system would remain robust."

Silberman’s opinion makes a convincing case that the Founders saw the Second Amendment as codifying a natural right to "private use of arms for activities such as hunting and self-defense [against] either private lawlessness or the depredations of a tyrannical government."

Critics, including dissenting D.C. Circuit Judge Karen LeCraft Henderson, have accused Silberman of flouting a 1939 Supreme Court precedent, U.S. v. Miller, which collective-right theorists have long seen as holding, at least implicitly, that there is no individual right to keep or bear arms. But if anything, Miller cuts the other way.

In that case, the justices upheld a federal ban on interstate transportation of short-barreled shotguns. Reasoning that the Second Amendment must be "interpreted and applied" in light of its "obvious purpose" of fostering a "well regulated Militia," the Court held that a sawed-off shotgun was not among the "Arms" appropriate for militia service.

But the Miller Court did not say that there was no individual gun right at all, as the government had urged in its brief. Nor did it note that the two defendants were not affiliated with any state militia. Instead, the justices chose to distinguish sawed-off shotguns from other guns. This seemed to imply that the Second Amendment does protect an individual right to keep and bear guns more akin to the rifles, muskets, and pistols commonly used in (and required by Congress for) late-18th-century militia service.

These were the very kinds of guns that the D.C. law banned altogether (handguns) or allowed only if unloaded and inoperable (rifles and shotguns). Therefore, Judge Silberman ruled, the D.C. law clearly violated the Second Amendment.

At the same time, Silberman said that the Second Amendment right is "subject to the same sort of reasonable restrictions" as are other constitutional rights. Indeed, the Supreme Court itself stated in 1897, "The right of the people to keep and bear arms … is not infringed by laws prohibiting the carrying of concealed weapons." And the Silberman opinion suggests that other reasonable regulations to protect public safety would also be valid, such as requiring registration of guns, conditioning gun ownership on proficiency testing, and prohibiting convicted felons from having guns.

Of course, those who favor a broad federal ban on private possession of pistols, or of all guns, will be thwarted if the Parker decision is allowed to stand by the full, 10-judge D.C. Circuit (which rarely reviews the decisions of its three-judge panels) and affirmed by the Supreme Court.

But, in any event, such a broad federal ban is politically impossible for the foreseeable future. As for state gun control legislation, Parker does not say, and the Supreme Court has not resolved, whether the Second Amendment applies only to the federal government (which ultimately controls the District of Columbia) or to the states, as well.

A question lingers: If the logic underlying the individual-right theory is as compelling as I think it is, why has it for so long been a minority view, rejected by nine federal appeals courts and adopted by only two?

One answer was suggested in a 2003 dissent by Judge Alex Kozinski, of Pasadena, Calif., from a collective-right ruling by the U.S. Court of Appeals for the 9th Circuit:

"Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that ‘speech, or … the press’ also means the Internet [for First Amendment purposes] and that ‘persons, houses, papers, and effects’ also means public telephone booths [for Fourth Amendment purposes]. When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases…. But … when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

"It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us…. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences."

My March 6 column erred in stating that Justice Sandra Day O’Connor was alone in joining both the 2003 decision to strike down the racial preferences in admissions at the University of Michigan’s undergraduate school and the related 5-4 decision to uphold those at Michigan’s law school. In fact, Justice Stephen Breyer made the same distinction, and the vote in the first case was 6-3, not 5-4. I regret the errors.

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-John Coale, one of the private lawyers suing gunmakers on behalf of municipalities, as quoted in The Washington Post after the March 17 settlement in which Smith & Wesson agreed to adopt various safety measures that have stalled in Congress.

In its March 21 ruling that the Clinton Administration lacked authority to regulate the tobacco industry, no matter how great the need for regulation, the Supreme Court reaffirmed the broad principle that the power to set national policy on such hotly contested issues belongs to Congress. But the Justices have taken little note of other bold efforts to bypass Congress-and short-circuit the judicial process to boot-by using the threat of ruinous litigation to impose de facto regulation and taxation on targeted industries, including guns and tobacco. As The Wall Street Journal observed, the gun lawsuits could bring about "a more sweeping round of gun regulation than any single piece of legislation in 30 years."

And the far larger tobacco companies, which seem to have been sued by almost everyone alive, could be bankrupted by litigation, including a pending class action by smokers in Florida and a Clinton Administration lawsuit that invokes far-fetched legal theories to seek many billions of dollars to compensate the government for the cost of treating smokers covered by Medicare. Also in the dock are HMOs, companies that sold lead paint more than 40 years ago, and makers of latex gloves. Later may come purveyors of liquor, beer, fatty foods, and, someday, maybe even fast cars and violent videos.

(For a fuller taste of these and other peculiar workings of our legal system, with copious links to news reports, check out an amusingly depressing Web site called Overlawyered.com, created and edited by Walter K. Olson of the conservative-libertarian Manhattan Institute.)

The alliance of would-be lawmakers behind many of these broad legal assaults includes the Clinton Administration, state attorneys general, and municipalities, working closely with public interest activists and wealthy private lawyers who started it all. Their incentives to sue variously include hopes of raising vast new revenues, bringing unpopular industries to heel, protecting public health and safety, and reaping billions of dollars in fees for the lawyers, who also tend to be big campaign contributors.

This public-private alliance’s most recent triumph illustrates the combination of policy-making ambitions and financial incentives that drives such litigation. The triumph was the March 17 decision by British-owned Smith & Wesson, the nation’s largest maker of handguns, to abide by a long list of restrictions on gun sales demanded by the Clinton Administration. Smith & Wesson entered the agreement to extricate itself from some or all of the lawsuits against the industry by 29 cities, counties, and other plaintiffs.

The gun lawsuits were bankrolled by contingent-fee lawyers who are also prominent in the more-lucrative tobacco wars and have lots of money to invest in multifront attacks on other industries. They recruited municipalities as clients by dangling the prospect of imposing previously unimagined liability on gunmakers for selling unnecessarily dangerous guns, and selling them to the wrong people, thus allegedly contributing to governmental costs associated with murders, accidental shootings, and other gun violence. Every shooting by a spouse, a child, an armed robber, or a drug dealer is at least theoretically a potential source of liability to the gunmakers. Seizing on the fact that many such shootings occur in federally subsidized housing projects, President Clinton and Housing and Urban Development Secretary Andrew Cuomo jumped in by pressing the gun companies to accept new restrictions or face "death by a thousand cuts," as Cuomo put it.

The plaintiffs have never had to prove their flimsy theories of liability in court. Indeed, judges have dismissed some of the lawsuits. But in this era of astronomical jury awards, a few losses could bankrupt the gun companies even if they win most of their cases. And the legal fees alone are potentially crushing, given the plaintiffs’ strategy of deploying massive firepower on multiple fronts, the better to force the companies to settle.

This strategy forced Smith & Wesson to raise the white flag. The restrictions drafted by Administration officials and agreed to by the company require it to develop "smart gun" technology within three years, so that only authorized users can fire new handguns; to limit bulk purchases; to bar dealers from selling at gun shows unless the buyers have passed background checks; to include trigger locks with all new handguns (which Smith & Wesson was already doing); and more. Others may be driven to make similar concessions.

If the plaintiffs’ divide-and-conquer strategy forces the rest of the industry to fall into line, the effect would be the de facto imposition of new, nationwide gun-control rules much like those that President Clinton has urged but that Congress has refused to pass. This is reminiscent of the far richer tobacco industry’s $246 billion in settlements with state attorneys general in 1998: The intent, and effect, was to finance the payments (and the billions in legal fees) by sharply raising cigarette prices, in what was the functional equivalent of a new nationwide tax on smokers-a tax that neither Congress nor state legislatures had voted to impose.

Will restrictions like those in the Smith & Wesson settlement reduce the number of shooting deaths? There’s great dispute about that. Even some advocates of more-radical controls such as banning all handguns worry that "smart gun" technology might increase total gun deaths by stimulating the sale of tens of millions more guns to people who mistakenly think them safe. The National Rifle Association and other, more scholarly opponents of the new gun controls sought by the Administration argue that they would not have prevented the rash of highly publicized shootings since the Littleton, Colo., massacre last year, and that "smart guns" might fail when most needed for legitimate self-defense.

I suspect that restrictions such as those agreed to by Smith & Wesson would save some lives, and so I would like to see Congress pass most, or all, of the Administration’s proposals. But with scholarly experts, detailed empirical studies, and millions of people on all sides of the issue, I can’t be sure.

One thing I am sure of is that the Framers of the Constitution created Congress-and assigned to it "all legislative powers herein granted"-to set policy for the nation on such complex questions of social engineering. They also made it hard to enact legislation unless backed by a fairly broad national consensus. That’s a far cry from what’s going on now, with the Clinton Administration and its allies boasting of using lawsuits to bypass partisan gridlock in Congress.

Do the ends justify the means? After all, these lawsuits represent just the latest in a succession of mushrooming theories of liability, expansive constitutional doctrines, and other trends that have led to deep intrusions by the judicial and executive branches into what was once the province of Congress. Why stop now, when so much needs to be done, and Congress is so unhelpful?

But the gun litigation represents a deeply disturbing way of making public policy. It was started by private lawyers and municipalities with big financial interests at stake. The courts have largely been bystanders as the Clinton Administration and its allies have sought to bludgeon gunmakers into settling before trial. And in the words of Robert B. Reich, Clinton’s former Labor Secretary, in The American Prospect: "If I had my way, there’d be laws restricting cigarettes and handguns. [But] the White House is launching lawsuits to succeed where legislation failed. The strategy may work, but at the cost of making our frail democracy even weaker…. You might approve the outcomes in these two cases, but they establish a precedent for other cases you might find wildly unjust."

After the Supreme Court’s 5-4 ruling that the federal Food and Drug Administration lacks the power to regulate tobacco without new legislation, President Clinton appropriately stressed that the Justices had been unanimous in asserting that "tobacco use…poses perhaps the single most significant threat to public health in the United States." He also called on Congress to pass a new law incorporating the now-voided FDA rule. Senate Majority Leader Trent Lott, R-Miss., immediately announced his opposition. It will be a bitter election-year struggle, with all players attending closely to how the voters will react to whatever they do.

That’s called democracy. It’s not always the quickest or easiest way to get things done. But it’s the best way.

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Here was the Supreme Court of the United States sending paroxysms of joy through the states-righters and the gun-lovers by holding (on April 26) that Congress had unconstitutionally exceeded its power to regulate interstate commerce, and had thus usurped the powers of the states, when it banned possession of guns within 1,000 feet of a school.

Here, in other words, was a 5-4 gift from the Court’s conservative bloc to the folks who listen to Justice Clarence Thomas’ buddy. Rush Limbaugh, who gives aid and comfort to fellow radio talk-showman G. Gordon Liddy, who, in turn, broadcasts pointers on how to kill (in self-defense, of course) federal law enforcement officials, like the ones who were targeted by the bombers and others on the right-wing lunatic fringe.

Perhaps these atmospherics-plus the fact that this was the first Court decision since 1935 striking down an act of Congress as exceeding its commerce power-were part of what inspired Yale Law Professor Bruce Ackerman to tell Totenberg that "this could well be one of the opening cannonades in the coming constitutional revolution." And Hofstra Law Professor Leon Friedman to assert that the Court’s holding that Congress may use its commerce power only to regulate activities affecting commerce "is an astonishing requirement to lay on Congress." And a giddy conservative, Professor Douglas Kmiec of Notre Dame Law School, to proclaim Lopez "the most important case in a half-century."

Totenberg herself asserted that Chief Justice William Rehnquist’s majority opinion might threaten "the law being used to prosecute Oklahoma bombing suspect Timothy McVeigh" (don’t bet on it), "sent shock waves through the body politic and the legal community," and "thundered down the hallways of the nation’s top law schools … like a bowling ball run amok."

But at least one liberal law professor was not bowled over: Harvard Law School’s Laurence Tribe suggests persuasively that Lopez, while obviously very important, has been "massively overblown"; that it does not threaten many (if any) major federal statutes; and that-although Tribe does not yet have a settled view on the merits-Rehnquist’s holding may just be right.

The initial, visceral reactions of many observers (including Totenberg, The Washington Post, and me) somehow associating the Court’s decision with the Oklahoma bombing are understandable but an obstacle to clear thinking. The timing of the decision vis-à-vis the bombing was, of course, pure coincidence. While a good PR agent would have advised the Court to wait awhile, we should not wish for the Court to start consulting PR agents. And any suggestion that the Court is giving aid and comfort to violent right-wing extremists is as unfair as the suggestions 25 years ago that George McGovern was giving aid and comfort to the Weather Underground.

It should also be plain that the statute struck down by the Court in Lopez, the-Gun-Free School Zones Act of 1990, will be no great loss. It was neither a good law nor a necessary one.

Rather, it was one of many statutes in recent years in which vote-grubbing members of Congress-led by some of the same conservative Republicans who have inconsistently clamored for a drastic cutback in federal power-have sought to look tough on crime by invading the traditional terrain of the states, criminalizing activities that federal law-enforcers have no special competence to police, and clogging federal courts with routine criminal cases.

The states are perfectly capable of banning possession of guns in or near schools. More than 40 of them have done so. And it….

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