This past summer, in what history will remember as a watershed case, the US Supreme court ruled 5 to 4 in favor of individual gun ownership rights. In District of Columbia v. Heller, security guard Dick Heller contested Washington DC’s strict handgun ban. The 28-year ban stemmed from the potential danger of handgun ownership in densely urban environments. Heller, not content to own a shotgun or a rifle, considered the ban a serious infringement upon Second Amendment rights.

When the Supreme Court examined the case on March 18, the Justices mirrored this disconnect as the debate focused on individual rights versus state militia rights. The Second Amendment may read multiple ways, stating; “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 his Majority opinion, Justice Scalia interpreted the amendment as “the individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Justice Stevens disagreed, stating that the amendment “protects the right of the people of each of the several states to maintain a well-regulated militia” and thus permits federal gun regulations on private citizens.

However, Justice Breyer’s dissenting opinion shifted the debate from lexical intent to social cost.   How, he asked, should the Court interpret the amendment considering that handguns are “a very popular weapon among criminals” and “are involved in a majority of firearms deaths and injuries in the United States?” The Supreme Court won’t excise an amendment from the Bill of rights based on negative sociological trends, but Breyer’s opinion represents the latest in a long tradition of utilitarian considerations within jurisprudence.

If the Second Amendment guarantees the right to bear “arms,” why can’t a private citizen protect his house with a .50 caliber machine gun by the front door, anti-personnel landmines embedded in the lawn, Rocket-propÃ¥elled grenades on the fence posts, and an AH-64 Apache helicopter hovering over the roof? The answer is that government and society apply a utilitarian calculus to interpret and even limit the power of the Second amendment.

Legislation in the past century established the Bill of Rights as rights under law and not free from it. For example, responding to the assassinations of John F. and Robert Kennedy, Congress passed the 1968 Gun Control Act restricting interstate handgun sales, toughening licensing laws, and disallowing firearm ownership by convicted felons, the mentally incompetent, drug addicts, etc. Additionally, the 1986 Firearms Owners’ Protection Act restricted the sale and ownership of machine guns by private citizens. Finally, in 1994, after studies showed a 500 percent increase in violent crime over a 30-year period, Congress passed the Violent Crime Control and Law Enforcement Act. Included in the legislation was a federal ban on the manufacture, transfer, and possession of assault weapons. These laws show us that, while the constitution assures U.S. citizens a set of “inalienable” rights, government has the authority, by principle and precedent, to regulate those rights. In each of these cases, lawmakers plugged concerns weighing strict constitutionalism against social cost into the utilitarian calculus: in each case, the latter prevailed.

Historically, government has outlawed certain firearms based on their high social cost. Now let us consider what that same utilitarian calculus has to say about handguns. The Department of Justice reports that handguns are the most frequently used firearms in homicide. Their report shows that in 2005, 14,965 murders involved firearms, 7,565 of them by handguns. In 2006, out of 15,087 firearm murders, 7,836 involved handguns. In 2007, the number dropped slightly to 7,361 handgun murders out of 14,831 total. In contrast, the number of “justifiable” homicides by handguns: “the killing of a felon, during the commission of a felony, by a private citizen”: numbers 123, 154 and 159 in 2005, 2006 and 2007, respectively. Aside from the human cost, a study by Cook on gun violence in America calculates “direct and indirect costs of gun violence including medical, lost wages, and security costs estimates that gun violence costs the nation $100 billion a year.”

Gun rights activists persistently claim that the handgun is a “functional” weapon needed for the protection of life and property. Yet, statistics show that the real “function” of handguns is overwhelmingly crime and violence. Why can’t the law-abiding citizen suffice with a shotgun or a rifle for home protection? Does private protection require an easily concealable, highly portable, multiple round-discharging firearm? The handgun is America’s weapon of mass destruction and a serious threat to public safety.

It is the government’s role to delineate the manner in which we are free to exercise our second amendment rights. Congress has already deemed machine guns and assault weapons as too dangerous; it’s time our representatives added handguns to that list. Unfortunately, on the marble steps of the Supreme Court last June, the utilitarian calculus lost.