My pessimism about the possiblity of gun regulation seemed momentarily unjustified this week given the speed with which President Obama acted on the issue.  True, the 23 executive orders that Obama signed were generally bland enough--discussions and committees and research.  But the proposals to Congress, while expected, at least kept the focus where it belongs: on guns.  Changes in the treatment of mental health issues are obviously important, but they deserve a separate and more dispassionate examination.  Violence in the media and in video games may be worth a second look (though citizens of other countries watch violent movies and play violent games, but those countries don't have anything like our rate of gun violene), but in this context would only serve as a distraction from the real problem: weakly regulated access to guns, including assault weapons.  But my hope was short-lived as the pro-gun forces and the politicians in their thrall leapt in the argument.

Fox News was apoplectic, of course.  On the first day, Obama was compared to Hitler, Stalin, Mao, Pol Pot, Hugo Chavez, Castro--just throw in the name of any dictator you want.  He was a tyrant, a would-be king, and certainly not a true American.  He was depicted as tearing up the Constitution, and the Second Amendment was ritually invoked over and over.  Politicians who I had assumed might be reasonable on this issue revealed themselves as adamantly opposed to any sort of regulation.  Yet under the noise, there was something curiously schizophrenic about the arguments of the pro-gun lobbies and their spokespeople.  Almost totally missing from the fear mongering about the government coming after "our" guns was the traditional appeal to hunters and sportsmen.  This time the argument had a distinctly paranoid tone with a vision of a dystopian future in which assault weapons were the citizens' remedies of last resort.  The slippery slope didn't lead to confiscation of rifles and shotguns, but to armed resistance to the government.

When Justice Scalia wrote the majority opinion in Heller v. District of Columbia, most of us thought the decision was disastrous.  For the first time, the Supreme Court overturned a ban on handguns (and regulations about how guns should be stored) by citing the Second Amendment and divorcing the first phrase about a well-regulated militia from the rest of the very short Amendment.  The first twenty pages of Scalia's argument were spent in arguing that the first phrase was "purposive" and neither enlarged nor limited the scope of the "operative" clause of the amendment.  Scalia is not an originalist in the same sense that Justice Thomas is, but the support for his argument was historical, citing such factors as alternatives to the final wording that didn't include language about militias and state laws following the adoption of the Constitution that explicitly affirmed the right of individuals to bear arms.  The majority opinion struck down the District of Columbia's regulation of handguns and their regulations on storing them, but more importantly, it seemed to imply that states and cities had little leeway in gun regulation.  It was, it seemed, a discouraging break with previous interpretations of the Second Amendment.

Yet there were some peculiarities in the case and its argument.  There were many amicus curiae briefs filed, but the NRA was strangely late in filing one.  One reason for their indecision might be that they had won themselves out of existence.  If gun ownership was Constitutionally guaranteed, then what was the purpose for the NRA to exist?  Although once their focus had been on gun safety and education, since the 1990s, that focus had shifted and the tone become more hysterical.  But now their slippery slope argument no longer had any validity.  The government wasn't coming--and couldn't come--for your handgun or rifle.  And the decision was less sweeping than it first seemed.  Scalia and his majority colleagues made it explicit that certain regulations are permissible.  Relying on his historical and conservative approach, Scalia said that "longstanding" prohibitions on felons or the mentally ill having access to weapons are valid, as are proscriptions that ban carrying firearms in "sensitive places," such as schools and government buildings.  Perhaps the part of his discussion that most alarmed the pro-gun lobby derives from an earlier (1939) case, United States v. Miller, which held that the amendment applied to those weapons 1) in common use, 2) for lawful purposes, 3) at the time.  Scalia was at least (for once) consistent in his historical approach, and it is clearly the third of those limitations that most upset the pro-gun lobbyist and, inadvertently perhaps, gave them a raison d'être for continuing.  Clearly, Madison and Jefferson were not talking about AR-15s and ammunitiion clips with dozens of rounds. 

It's why, I think, in all the discussion by Fox News and others of the Second Amendment, the most important Supreme Court decision on that issue is never mentioned, despite its seeming support for their side.  It's why they no longer talk about the rights of hunters.   There's no longer the pretense that the government will take your handguns.  There's nothing left but to frighten people into survivalist mode.