Lawrence Rosenthal

a professor of law at Chapman University in California, filed a brief on behalf of the U.S. Conference of Mayors in McDonald v. City of Chicago

In its 2008 decision in District of Columbia v. Heller, the U.S. Supreme Court ruled that a D.C. law banning handguns violated the Second Amendment to the Constitution. The Second Amendment, however, is a limitation only on federal law. Now, in McDonald v. City of Chicago, gun-rights advocates have asked the court to apply the right to bear arms to state and local gun-control laws.

The Second Amendment says: "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." In the Heller case, the legal debate was mostly about whether the amendment created an individual right to bear arms or a collective right to participate in an organized militia. In its 5-4 decision, the court came down on the individual-rights side, holding that a right to "keep" arms meant a right to possess them, and a right to "bear" arms meant a right to carry them.

In the McDonald case, gun-rights advocates now attack Chicago's handgun ban under the 14th Amendment, which secures "due process of law" and "the privileges or immunities of citizens of the United States." The Supreme Court has been hard pressed to find specificity in those words.

The court tells us only that the amendment protects rights that are "fundamental" or "implicit in the concept of ordered liberty." Does the right to bear arms qualify?

This debate occurs at a time when most Americans seem to have lost faith in gun control. Support for gun-control laws has waned, and politicians fear gun-rights advocates as never before. Yet the case for gun control is stronger than ever.

Violent crime - particularly firearms-related crime - surged in big cities in the late 1980s and early 1990s after the introduction of crack cocaine. Urban gangs dominated the crack market, using violence to drive out competition. Handguns were a big part of the story. By going about with readily concealable weapons, gang members and drug dealers could defend their turf and cow the law-abiding residents of gang-ridden neighborhoods. Officers on patrol were largely helpless. Gang members hid their guns and behaved themselves when police came near. Intimidated residents were scared to testify about what happened after the police left.

Just when things were darkest came the dawn. Violent-crime rates dropped precipitously during the 1990s, when police began to target guns at known hot spots of drug and gang activity.

For example, New York City focused aggressive stop-and-frisk tactics at gang and drug hot spots. The evidence that the tactic helped drive crime down to levels not seen for decades is powerful. Areas designated for aggressive patrol underwent large reductions in violent crime.

The explanation is simple - when rates at which the police stop and frisk suspected gang members and drug dealers escalate, the risks of carrying guns and drugs escalate as well. Gang and drug activity is pushed indoors, where it has less effect on community life, and less potential to escalate into violent confrontations.

New York's tough gun-control laws were central to its success in reducing crime. Because it is illegal to own a handgun without a difficult-to-get permit in New York, whenever police see a suspicious bulge or other indication of a firearm, they can stop and frisk. Weapons searches are by far the most common stop-and-frisk activity in New York; there were more than 56,000 over 15 months studied by New York's attorney general.

The evidence that aggressive enforcement of gun-control laws reduces violent crime is not limited to New York. A recent National Research Council report found that throughout the nation, aggressive stop-and-frisk tactics targeting illegal guns drive down crime. A recent study of Chicago's handgun ban found that it succeeded in constricting gun markets.

Crime is still too high in Chicago, but without the handgun ban, it would likely be even higher. The example of New York shows what tough gun laws can do when paired with aggressive enforcement.

If the Supreme Court were to recognize a right to bear arms, however, the police could no longer stop and frisk people who would merely be exercising a constitutional right. Weapons searches would become illegal, and the ability of the police to chase gang and drug activity off the streets would be crippled.

When the Second Amendment was adopted about two centuries ago, it was easy to reconcile its preamble and its operative clause. In a nation that prized the militia and that was suspicious of standing armies, a right to bear arms was thought critical to "the security of a free state." Things look different today.

In high-crime drug- and gang-ridden communities, criminals are all too likely to exploit a right to bear arms to terrorize the community and engage in violent competition for the spoils of the drug trade. There is no "well-regulated militia" in these communities.

The problems posed by a right to bear arms do not exist everywhere. In many low-crime communities, the case for gun control may be hard to make. Still, as Justice Louis Brandeis once observed, one of the "happy incidents" of our federal system is that cities and states can "serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." This lesson we forget at our peril.

E-mail Lawrence Rosenthal at rosentha@chapman.edu.