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Published: Thursday, 7/8/2010

Firing zone

During the recent Senate confirmation hearing for U.S. Supreme Court nominee Elena Kagan, liberals told conservative members of the Judiciary Committee who complain about liberal judicial activism something they would not have appreciated: Such activism is not restricted to one political persuasion.

On the same day that Ms. Kagan began to face the senators, the Roberts court provided a reminder of this truth. It ruled on a 5-4 vote, reflecting the usual ideological split, that the Second Amendment to the Constitution applies everywhere and allows Americans to keep handguns in their homes, wherever they live, for self-defense. Local communities face limits on what they can do to restrict guns, the court said.

By itself, this ruling was neither particularly activist nor very surprising. But it logically proceeded from another high court ruling two years ago that was more radical. In a case from Washington, D.C., the court held for the first time that the right to bear arms is an individual right, not a collective one as the opening wording of the amendment might suggest.

In solving one issue, the court invited a thousand more. The invitation was soon taken up in Chicago and its suburb of Oak Park, Ill., which have had handgun bans for nearly 30 years. The question was whether the Supreme Court's reasoning in the case from Washington, a federal enclave, had force elsewhere.

The court has previously ruled that most provisions of the Bill of Rights apply with full force to both the federal government and the states. So it would have been a shock if the court had kept the Second Amendment on a leash. The only real doubt concerned what section of the 14th Amendment the court might apply in its ruling.

In his majority opinion, Associate Justice Samuel Alito held that the due-process clause of the 14th Amendment incorporates the Second Amendment. He sent the handgun case back to the appeals court that had heard it for further review.

The ruling spells trouble and more litigation. As the court made clear in the Chicago and Washington cases, some limits on guns may survive constitutional challenge.

Where communities should draw the line is anyone's guess. Lawyers are the big winners. Municipalities that seek clear guidance on public safety issues are the losers.

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