When writing a concurring opinion in an obscenity case in 1964, Supreme Court Justice Potter Stewart famously said he could not necessarily define hard-core pornography, but “I know it when I see it.”
The Justice’s legally vague, but commonly candid definition is worth remembering as America once again considers gun control.
President Obama has proposed, and many Americans support, a ban on assault weapons and high-capacity ammunition magazines as one of a series of measures to reduce gun violence following the Sandy Hook Elementary School massacre.
What happens now depends on two critical debates.
The first will be in the Congress where the people’s representatives will decide, presumably based on the wishes of their constituents, whether certain kinds of guns and accessories should be outlawed.
This debate will be rooted more in emotion than reason. The demand that we “do something” following Sandy Hook will drive the argument.
If the Congress does pass an assault weapons ban, then we could have another fight in the Supreme Court.
The high court has already ruled (5-4 in District of Columbia v. Heller) that the Second Amendment does, in fact, enunciate the individual’s right to keep and bear arms. That landmark decision trumped the long-standing argument by gun control advocates that the Second Amendment right, as Justice John Paul Stevens said in his dissent, pertains to arming a militia and not individual citizens.
Still, the court’s decision was limited to rejecting the government’s imposition of a blanket ban on guns. It did not, however, answer thoroughly a key question: how far does the right to gun ownership extend?
In his majority opinion, Justice Antonin Scalia made clear that the right secured by the Second Amendment is not unlimited.
“Nothing in our opinion should be taken to cast doubt on the longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualification on the commercial sale of arms,” Scalia wrote.
In a 2012 interview on Fox News Sunday, Scalia said the extent to which gun ownership could be curtailed will depend on future cases where the court will decide “what those limitations are as applied to modern weapons.”
That, undoubtedly, is where reasonableness will be applied. How else can the court decide when or if the possession of a particular weapon crosses the line from the protected right of an individual to an unreasonably high risk to the rights of others?
Perhaps, like Stewart’s common sense approach on pornography, the justices will know it when they see it.