If this Is Defeat, We’ll Take It

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.

Also from this issue

Lead Essay

  • 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.

  • 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.

  • 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.”

  • 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.