The Supreme Court Building in Washington D.C.

In June, the Supreme Court held that the Washington, D.C. gun bans violate the Second Amendment's guarantee that law-abiding, responsible adults may have guns for the protection of their homes, families and selves. (District of Columbia v. Heller.) This has understandably been an occasion of great joy for advocates of the right to self-defense. Nevertheless, we must understand how fragile this result is and how limited the opinion is.

The case was decided by the scantest of majorities: 5-4. The dissenting opinions are, to put it bluntly, ahistorical garbage that treat the Second Amendment in ways in which no other portion of the Bill of Rights is treated. The case for the right to arms is so overwhelming that both sides call it the Standard Model view of the Second Amendment, which has been accepted not just by gun owners but also by many honest scholars who are anti-gun.

No honest scholar or judge could deny that late 18th-century Americans felt that gun ownership was a sacred right of law-abiding, responsible adults. That was embraced universally across the political spectrum by figures as diverse (and often antagonistic) as James Madison, Sam Adams, Thomas Jefferson, James Monroe, Patrick Henry and Thomas Paine.

Here is how the history is summed up by Prof. William Van Alstyne, one of the great figures in modern American constitutional law: "In recent years it has been suggested that the Second Amendment protects the 'collective right' of states to maintain militias, while it does not protect the right of 'the people' to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the 18th century, for no known writing surviving from the period between 1787 and 1791 states such a thesis."

Another major constitutional law figure, Prof. Randy Barnett, has noted that, unlike the Standard Model, advocates of the various states' right/collective rights theories are unable to produce even a single example of those theories being mentioned by any eighteenth century American. Significantly, the massive Heller dissents also could produce no 18th century expression of any states' right/collective right theories of the amendment.

But despite the intellectual weakness of the anti-Standard Model argument, the four dissenters clung to it. This emphasizes the fanaticism of the opponents, particularly given how extreme the D.C. gun bans were: Handguns were totally illegal; long guns could be owned but only for sporting purposes; and no gun could be kept loaded and available for defense of the home.

As I am writing it appears that Barack Obama will likely be the next president. If so, we can expect every justice he appoints to the court to be unscrupulously dedicated to reversing Heller. This is not quite as ominous as it seems because Obama may not have a chance to appoint a replacement for any of the five justices who made up the majority in Heller. They are relatively young compared to the four dissenters. Most likely any justices who die or retire during Obama's term in office will be among the four dissenters, so Obama's new appointees to replace them will still be in the minority.

But it is always possible that one of the majority will retire or die, whereupon Obama will be able to appoint someone whose vote will reverse Heller.

The Heller case overturned Washington, D.C. bans. It precludes the federal government outlawing guns or just handguns. But the case left an open question whether the right to arms applies against state and local governments.