Room for restrictions, but D.C. ban goes too far
November 28, 2007
BY ROBERT A. LEVY
It has been 68 years since the U.S. Supreme Court examined the right to keep and bear arms secured by the Second Amendment. It has been 31 years since the District of Columbia enacted its feckless ban on all functional firearms in the capital. It has been eight months since the second most important court in the country, the U.S. Court of Appeals for the District of Columbia Circuit, declared the D.C. ban -- among the most restrictive in the nation -- unconstitutional.
The obvious incongruity of those three events could be resolved soon, when the Supreme Court reviews the appeals court decision in District of Columbia v. Heller.
Oral arguments likely will be held this spring, with a decision expected before June 30. (I am cocounsel for the plaintiffs and am one of the attorneys who initiated the lawsuit.)
The stakes are immense. Very few legal questions stir the passions like gun control. Further, Washington is home to the federal government, making it an appropriate venue to challenge all federal gun laws, no matter where an alleged Second Amendment violation might have occurred.
Thus, Heller could have an immediate effect not only on D.C. gun regulations, but on federal regulations. Equally important, if the Supreme Court affirms the D.C. circuit's holding, state gun control laws across the nation could be vulnerable to constitutional attack.
But before that happens, two other issues would have to be litigated. The first is the knotty question of whether the Second Amendment can be invoked against state governments. Until 1868, when the 14th Amendment was ratified, the Bill of Rights applied only to the federal government.
But in the aftermath of the Civil War, much of the Bill of Rights was considered "incorporated" by the 14th Amendment to bind the states as well. Regrettably, the incorporation of the Second Amendment has not yet been settled. And that issue did not arise in Heller, because the District of Columbia is a federal enclave, not a state.
The second question is even more complicated: What restrictions on gun possession and use would be permissible? Almost no one argues that Second Amendment rights are absolute. After all, under the First Amendment, the right to free speech does not protect disturbing the peace; religious freedom does not shield human sacrifice. Similarly, gun regulations can be imposed on some weapons (e.g., missiles), some people (e.g., preteens) and some uses (e.g., murder).
Indeed, the appeals court acknowledged that Washington might be able to justify such things as concealed-carry restrictions, registration requirements and proficiency testing. But the Constitution does not permit an across-the-board ban on all handguns, in all homes, for all residents, as in the case of the Washington ban (with the exception of current and retired police officers). Somewhere in the middle, regulations will be deemed constitutional even if the Supreme Court upholds the lower court.
Meanwhile, the high court also will have to re-examine its 1939 gun case, United States v. Miller, which generated more heat than light regarding the Second Amendment.
The core holding of Miller was that protected weapons must be "in common use" and must bear "some reasonable relationship to the preservation or efficiency of a well-regulated militia."
Heller is entirely compatible with that holding. Pistols, which are banned in D.C., are self-evidently "in common use," and they have been carried into battle by American troops in every conflict since the Revolutionary War. But a proper reading of the Second Amendment should not attempt to link each and every weapon to the militia -- except to note that the grand scheme of the amendment was to ensure that people trained in the use of firearms would be ready for militia service.
ROBERT A. LEVY is senior fellow in constitutional studies at the Cato Institute. Write to him in care of the Free Press Editorial Page, 615 W. Lafayette, Detroit, MI 48226 or at
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