Cloaking himself and the Brady Center in the mantle of “reasonableness,” Dennis Henigan disclaims the statement of Brady co-founder Pete Shields and asserts that it “has never been” and is not now the policy of his organization to “make possession of all handguns … totally illegal.” Perhaps so. Perhaps, as Henigan says, Brady supports even laws, like the D.C. gun ban, that the organization “does not favor as a policy matter,” because “legislators should not be constitutionally barred from enacting the gun control laws they think necessary.”
If that’s the view of the Brady Center, I respectfully disagree. A principal purpose of our Constitution is to restrain the excesses of the political branches and secure key rights against temporal majorities. But let’s not quibble. Let’s accept Henigan’s statement that, from a policy perspective, Brady opposes the D.C. gun ban. Is it too much to ask for a citation to one corroborating article, one radio or TV appearance, one web posting, or one quoted statement by any responsible Brady official that says, in essence, “We think D.C. should repeal its gun ban, even though it is constitutional, because it is bad public policy”?
Now that D.C. officials, trying to circumvent the Heller decision, have proposed new rules that still ban all handguns except revolvers, still require all weapons in the home to be kept in a dysfunctional state, and still make D.C. residents endure a months-long process to register a weapon, can we count on the Brady Center, in a show of reasonableness, to publicly oppose those rules on policy grounds? Will the Brady Center support a temporary suspension for D.C. residents of the federal ban on interstate handgun sales because, otherwise, until D.C. licenses dealerships, residents cannot obtain a handgun either in or out of the city — a situation that is self-evidently unreasonable.
On a separate matter, Henigan writes that any view of Heller as “a potent weapon against gun control laws across-the-board … now appears largely wishful thinking by gun control opponents.” That statement — which might have been crafted by the most talented of the political spin-meisters — is part of Henigan’s attempt to recast Heller as a hidden defeat for gun rights advocates. Two comments to set the record straight: First, no responsible gun rights advocate imagined that Heller would be, or could be, a means of attacking gun control laws “across-the-board.” Heller challenged three provisions of the D.C. code — the most extreme provisions — and sought no relief beyond a declaration that those three provisions were unconstitutional. In that respect, the Supreme Court granted Heller 100% of the relief that he requested. Not bad for a hidden defeat.
Second, before Heller, federal appeals courts covering 47 out of 50 states had ruled that litigants have no redress under the Second Amendment if their right to keep and bear arms is violated by state law. Now, after Heller — and after incorporation, which is imminent — litigants in every state will have redress under the Second Amendment if their right to keep and bear arms is violated by state law. That means Chicago’s gun ban will fall; many of San Francisco’s laws will fall; parts of New York’s regulations will fall. If that’s a defeat for gun rights advocates, we’ll take it.