The Second Amendment Goes to Court
For the past three decades, Washington, D.C. has enforced one of America's most draconian gun control laws—a total ban on the possession of handguns, not to mention strict gun lock provisions for rifles and shotguns, that has left law-abiding citizens unable to legally defend themselves and their homes. In March, the U.S. Supreme Court heard oral arguments in the case of District of Columbia v. Heller, in which seven D.C. residents challenged the constitutionality of the ban. At the center of the case is the question of whether the Second Amendment protects an individual or collective right to keep and bear arms.
Yesterday, the Court issued its long-awaited opinion, ruling 5-4 in favor of an individual right to own guns. reason assembled a panel of 8 leading civil libertarians to help make sense of what the Court said, what it means, and what's likely to come next.
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Alan Gura: Yesterday’s decision is a huge victory for liberty. First, we saved the Second Amendment. That much should be obvious from the opinion. Yesterday, federal courts in 47 states were telling Americans they had no Second Amendment rights. The score is now 50-0, plus the capital, in the other direction. For budding lawyers, “individual right” is now the correct answer on the Multi-State Bar Exam. The movement to end private firearm ownership in America is dead and buried. Yes, we’ve got some work to do to make sure it stays that way. It will.
The case is “narrow but broad.” Narrow, in the sense that our objective was merely to secure the individual nature of Second Amendment rights, and demonstrate—with a judgment—that the right has substance. Broad, in the sense that this simple principle can now be applied in other contexts. This is not just about flat-out gun bans in Washington, D.C. homes. All regulations that touch upon Second Amendment rights will get a well-deserved constitutional look. Instant background checks and felon-in-possession laws will survive. Laws meant to harass gun possession, while at best advancing only a hypothetical public benefit, will not. The Second Amendment is now a normal part of the Bill of Rights. It’s not realistic to expect one Second Amendment case to answer all right to arms questions for all time, just as we have no one decision telling us what a Fourth Amendment “reasonable search” in all circumstances. We may not win every case. We’ll win a good amount of them. The next step is obviously 14th Amendment incorporation. I’m looking forward to leading that fight. Learn more at www.chicagoguncase.com.
Libertarians can be impatient. Would anyone prefer the quick certainty of Kelo? Or McConnell v. FEC? It may be a tough slog to restore the Takings Clause and free political speech. Restoring the Second Amendment will take time, too. Today, with the right to keep and bear arms, we start from a position of strength.
Alan Gura argued District of Columbia v. Heller before the Supreme Court. He is a partner at Gura & Possessky.
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Glenn Reynolds: My first thought on Heller is that many gun-rights supporters never thought they'd live to see a Supreme Court opinion to the effect that "The Second Amendment protects an 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." Bob Levy, who brought the case against the advice of many gun-rights supporters, should feel very good about that.
My second thought is that this is a gift to the Obama campaign. While this won't take the gun issue off the table, it also won't energize the gun-rights crowd (which cost Al Gore the election in 2000 when he failed to carry Tennessee, largely because of his support for gun control) the way a contrary opinion would have. Obama's record of strong support for sweeping gun control would hurt him much more if gun owners felt more vulnerable.
My third thought is that whether this has much impact on the real world depends on how the next several cases proceed. In the 1990s the Supreme Court announced a major shift in Commerce Clause doctrine that offered the hope of paring back federal power considerably. But right-leaning public interest law groups didn't take up the challenge and bring carefully selected cases to advance the principle, leading it to be characterized by some (including me) as a constitutional revolution where nobody showed up. Gun-rights advocates are already talking about follow-on challenges in places like Chicago or Morton Grove. How well those are brought will have a lot to do with whether the Heller opinion is a milestone, or just a speedbump.
Glenn Reynolds is a law professor at the University of Tennessee. He blogs at Instapundit.com.
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Randy Barnett: Justice Scalia's historic opinion will be studied for years to come, not only for its conclusion but for its method. It is the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court. Its analysis of the "original public meaning" of the Second Amendment stands in sharp contrast with Justice Stevens' inquiry into "original intent" or purpose and with Justice Breyer's willingness to balance an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. The differing methods of interpretation employed by the majority and the dissent also demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same. Now if we can only get a majority of the Supreme Court to reconsider its previous decisions—or "precedents"—that are inconsistent with the original public meaning of the text.
Randy Barnett is the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center and author of Restoring the Lost Constitution: The Presumption of Liberty.
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Brian Doherty: The Heller decision was exciting for fans of American liberty—even the dangerous and disreputable end of that liberty, where weapon possession and use rights abide in the minds of many good-hearted people who think guns are just ugly and awful and appeal to the worst aspects of human nature.
Scalia's opinion did a thorough job of fileting, layer by layer, the lame and unsupportable "collective right" beliefs about the Second Amendment—including lots of sadly necessary exegesis on how the word "keep" means that people have a right to, yes, keep arms in their homes.
But Heller represents no happy ending to our legal and public policy duels over guns. Scalia's opinion does admit that we do have a constitutionally protected right to some degree to defend ourselves and our property with weapons.
But the opinion also stresses that right is still regulatable in many, many ways. It leaves plenty of room (which you can be sure will be filled rapidly) for future court challenges and public policy fights to define the degree to which the government, at any level, can restrict or regulate the sale, possession, and use of weapons. It may well turn out that anything less severe than D.C.'s total ban will withstand scrutiny even under the newly revived Second Amendment.
The "eternal vigilance is the price of liberty" part: four members of the Supreme Court think that it's A-OK for the government to completely bar citizens from using guns for the protection of their lives and homes. That can't make sleeping at night any easier. That said, the Heller victory was a sweet one for the recognition that there are limits to what democracy can do to individual rights, and is worth celebrating for that.
Brian Doherty is a senior editor at reason and the author of This Is Burning Man and Radicals for Capitalism. He is currently writing a book about District of Columbia v. Heller.
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Sanford Levinson: The majority obviously found that the Second Amendment does protect an individual right to bear arms, and they applied this right in the easiest possible case, i.e., a functionally absolute prohibition against handgun possession.
What cannot be determined from the opinion is what the future impact of Heller will be, beyond further litigation. I am reminded of a cartoon in the New Yorker several years ago, of a conversation at a suburban cocktail party where a woman says to a well-dressed man, who is carrying a rifle slung over his shoul
