Does Heller Point the Way to Victory for Reasonable Gun Laws?

Bob Levy is uninterested in the “old debate” about the meaning of the Second Amendment because Heller decided the issue, while David Kopel thinks Heller hangs on a fragile 5-4 thread that could be severed by the Obama Administration conspiring with the United Nations to use unratified treaties to undermine Second Amendment rights. I sense some tension between the two perspectives.

Levy doesn’t seem to contest the essence of the “Heller Paradox” as I described it in my opening essay. The Paradox does not, as he suggests, depend on “demonizing the gun lobby,” though to do so requires only a recitation of its extremist positions, like its recent campaigns to deprive corporations of their right to keep guns off company property and to force colleges to allow guns on campus. My point has to do with the impact of Heller on the NRA’s longtime efforts to use the fear of gun confiscation to block reasonable gun laws in the future. A core gun lobby argument has been that regulatory proposals like background checks, licensing, registration and others should be defeated because they are but steps down a slippery slope to the destruction of civilian gun ownership. The slippery slope argument loses much of its force if there is now a Constitutional barrier to a general gun ban. Over the long term, this could be bad for the NRA and good for gun control advocates.

Indeed, this likely effect may explain why the NRA did not lead the legal effort against the D.C. law. Were it not for Bob Levy, there is no reason to believe a constitutional challenge to D.C.’s law would have been filed. Levy’s suit embarrassed the NRA into filing its own tag-along action, which was quickly dismissed for lack of standing. The NRA clearly preferred to press Congress to repeal the D.C. handgun ban, perhaps because it foresaw the unintended consequences of a Second Amendment victory. Any ruling that could diminish the NRA’s core strategy of keeping gun owners in a perpetual state of fear and anxiety about gun confiscation could be quite damaging to the organization’s interests.

A few days after the Heller decision, Chuck Michel, a West Coast lawyer who has long represented the NRA and other pro-gun interests, was involved in a panel discussion with Brady Campaign President Paul Helmke on public radio in Los Angeles. When he was asked about Heller’s effect on licensing and registration proposals, Michel argued that the problem with licensing and registration was that they “led to confiscation” and that there are “a lot of people in the gun control movement who are really gun … banners” who are “in favor of civilian disarmament.” As to Heller, he observed “[t]hese folks are never going to get their way now as a result of this [Heller] opinion, so I think licensing and registration is …going to be… tougher to criticize.

Moments later, Michel realized the implications of what he had said, and he remembered the NRA talking points. “Well, let me just first clarify,” he said, “so I don’t get overly criticized by the members of the NRA that may be listening, you can’t license a civil right.” He then began to dissemble about different kinds of licensing that may be constitutional while others are not. But the damage had been done. Michel had committed the classic political “gaffe,” as famously defined by columnist Michael Kinsley. He had told the truth by accident.

I noted that Levy’s statement that “the slippery slope argument was justified,” uses the past tense. He resorts to the old NRA warhorse of using Pete Shields’ quote from thirty-two years ago in an interview he gave before he took the leadership of the Brady Campaign’s predecessor organization, expressing a viewpoint that has never been the policy of the organization. (Levy points to Brady’s amicus brief in the Heller case as recent evidence that the group favors a handgun ban, but our brief is entirely consistent with our view that legislators should not be constitutionally barred from enacting the gun control laws they think necessary to protect their constituents, even laws Brady does not favor as a policy matter.) The obsessive search for evidence that the Brady group’s real agenda is to ban all guns was always irrelevant (as well as inherently futile), but it certainly seems even more irrelevant after Heller. If a general gun ban is unconstitutional, then it matters even less what some gun controllers “really want,” because even if they want it, they can’t achieve it.

That is not to say that the gun lobby won’t continue to use fear tactics to rally its core supporters. Virtually all of Kopel’s last posting in this exchange is devoted to stoking the flames of fear. If Obama doesn’t get your guns, then the UN will. This is the kind of talk that will continue to be a staple of NRA propaganda in the post-Heller era. It may take some time, but Heller is likely to gradually reduce the ranks of gun owners who will take such appeals seriously. This should refocus the gun control debate on the pros and cons of specific policy proposals to reduce access to guns by dangerous people. This reframing of the issue is what the NRA desperately wants to avoid.

Levy thinks the Heller majority sent “an unmistakable signal that gun control regulations will be rigorously reviewed.” There is no such signal in Justice Scalia’s opinion. He could have written — as some may have expected — that finding gun ownership a personal right creates a new presumption that gun control regulations are unconstitutional, shifting the burden to the government to demonstrate their adherence to constitutional standards. The Heller majority, instead, provides a catalogue of gun regulations that clearly affect the right (e.g. “conditions and qualifications” on the sale of firearms), yet finds them “presumptively lawful.” The majority opinion, in commenting on the plethora of previous rulings by courts upholding gun laws, makes this notable statement: “In any event, it should not be thought that the cases decided by these judges would necessarily have come out differently under a proper interpretation of the right.”

There appear to be some justices in the majority who understand that, even if gun possession for self-defense in the home is a personal right, it is distinguishable in kind from other rights guaranteed by the Constitution. A constitutional right to possess a lethal product has immediate and direct implications for the health and safety of others in the community that distinguish it from, for instance, the First Amendment right to express oneself about such lethal products (or other topics).

Based on this obvious distinction alone, there is a strong argument for greater judicial deference to legislative judgments affecting the right to keep and bear arms, than to such judgments affecting other rights. This is no doubt why, as demonstrated by Professor Adam Winkler of UCLA Law School, state courts, in applying broadly worded state “right to bear arms” provisions, have universally rejected strict scrutiny or any heightened level of review in favor of a highly deferential “reasonableness” test that has been met by virtually every gun control law challenged in the state courts.

Before the Heller ruling was issued, there was considerable reason to worry that a new individual right to be armed for non-militia purposes would be a potent weapon against gun control laws across-the-board. To believe that Heller created such a weapon now appears largely wishful thinking by gun control opponents. From the viewpoint of the gun control community, although Heller certainly will create greater constitutional uncertainty about gun control laws than existed before, the legal risks are likely to be outweighed in the long term by the political benefits of reducing the power of the slippery slope argument.

Also from This Issue

Lead Essay

  • District of Columbia v. Heller: What’s Next? by Robert A. Levy

    Robert A. Levy, Cato Institute senior fellow in constitutional studies, was co-counsel to Mr. Heller in District of Columbia v. Heller, last month’s controversial Supreme Court case in which Washington, D.C.’s ban on gun ownership was ruled unconstitutional on the basis of a Second Amendment individual right to possess firearms. But what does Heller really imply for the future of gun rights and gun control in America? In this month’s lead essay, Levy asks and gives his answers to the questions on the minds of gun lovers and gun controllers alike. What gun regulations will now be permissible? Will the Second Amendment be “incorporated”? Did the court engage in “judicial activism”? And what’s next for the on-the-ground politics of gun control in Washington, D.C. and beyond? Levy’s tightly reasoned essay marks the beginning of the new American debate about guns after Heller.

  • The Heller Paradox: A Response to Robert Levy by Dennis A. Henigan

    In his vigorous reply to Levy’s lead essay, Dennis A. Henigan, Vice President for Law and Policy at the Brady Center to Prevent Gun Violence, argues that Heller was “a prototypical misuse of judicial power to advance an ideological agenda” based on Justice Scalia’s “transparently inconsistent and manipulative” reading of historical texts. Nevertheless, Henigan argues that “the Heller decision should prove to be a sharp disappointment to the gun lobby and other Second Amendment extremists” because “the lower courts are likely to interpret Heller as giving a constitutional green light to virtually every gun control law short of a handgun ban.” Moreover, Henigan argues, by decisively forbidding outright bans, Heller has defused the argument that gun control regulation sets us on a slippery slope to a society in which private citizens are not allowed to own guns. And therein lies the Heller paradox. By making Second Amendment rights clearer, the Court has made gun control easier.

  • The Right to Bear Arms and “Sensible” Gun Laws by David Kopel

    In his reply, Second Amendment scholar David Kopel argues that the Constitution’s mention of “the” right to bear arms implies the right pre-existed the government, and that the point of the Second Amendment was to rule out its infringement. That pre-existing right, Kopel maintains, was “the right of having arms for personal defense,” and there is little evidence for a pre-existing militia right. Kopel agrees with Dennis Henigan that “the Heller decision … will probably not affect most gun laws in the United States, even assuming incorporation in the 14th Amendment,” but differs on the nature of “sensible” gun control, and offers a useful and informed discussion of current regulations. Regarding Washington, D.C.’s newly minted regulations, Kopel predicts that “the new law will be declared void by the D.C. Circuit Court of Appeals, and that the Supreme Court will deny cert.”

  • The Heller Decision: Conservative Activism and its Aftermath by Erwin Chemerinsky

    In his reply to Robert Levy’s lead essay, constitutional scholar Erwin Chemerinsky argues that Scalia’s majority opinion in Heller was based on a shoddy application of Scalia’s own judicial principles and “powerfully demonstrates that Justice Scalia’s constitutional rulings … ultimately are animated by his conservative politics.” According to Chemerinsky, by ignoring a long history of precedent and throwing into question “countless other statutes and ordinances,” the decision “showed that conservative rhetoric about judicial restraint is a guise that is used to oppose rights [the conservatives on the Supreme Court] don’t like.” Chemerinsky further criticizes the court for failing to clarify the level of scrutiny to be applied to gun regulation, and suggests that it should be the “reasonableness” test. Heller will be incorporated, Chemerinsky predicts, but will unlikely affect the coming elections.

The Conversation