About July 2008
More than five years after six Washington, D.C. residents challenged the city’s 32-year-old ban on all functional firearms in the home, on June 26, 2008 the Supreme Court held in District of Columbia v. Heller that the ban is unconstitutional. While the majority in Heller foundthatthe Second Amendment protects an individual right to own weapons for self-defense, and not merely a right for those involved with a “well-regulated militia,” the decision raises as many questions as it answers.
While Heller rules out straightforward gun bans, it does not rule out the regulation of the ownership of firearms. Can we expect increasingly heated fights over the legal scope of regulation? Will the clear legal affirmation of an individual right to bear arms sap gun rights defenders of one of their chief rhetorical strategies: the regulatory slippery slope to the prohibition of gun ownership? How does a decision concerning Second Amendment rights in the federal district apply to gun laws in the states and their cities? Does Heller change everything? Or does it merely mean that a resident of the District of Columbia can acquire a gun if he or she can manage to clear all the inevitable regulatory hurdles?
To tell us what Heller really portends for the future of gun rights in America, Cato Unbound has assembled a stellar panel Second Amendment experts. Leading off we have Cato’s own Robert A. Levy, a chief architect of the Supreme Court case and co-counsel to Mr. Heller. Commenting on Levy’s lead essay, we’ll have Denis Henigan, legal director of the Brady Campaign to Prevent Gun Violence; David Kopel, research director of the Independence Institute and a noted Second Amendment scholar and activist; and Erwin Chemerinsky, the Alston & Bird Professor of Law and Professor of Political Science at Duke University, one of America’s most accomplished Constitutional scholars and lawyers.
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.