The courts would no more allow government to undermine the Second Amendment than the First.
By David B Rivkin, Jr, and Andrew M Grossman
Could there be a better illustration of the cultural divide over firearms than the White House photograph of our skeet-shooting president? Clay pigeons are launched into the air, but the president's smoking shotgun is level with the ground. This is not a man who is comfortable around guns. And that goes a long way toward explaining his gun-control agenda.
Lack of informed presidential leadership aside, there is a gulf
between those Americans who view guns as invaluable tools for
self-defense, both against private wrongdoers and a potentially
tyrannical government, and those who regard that concept as hopelessly
archaic and even subversive. For them, hunting is the only possible
legitimate use of firearms, and gun ownership should be restricted to
weapons suited to that purpose.
But while the level of the policy
discourse leaves much to be desired, its constitutional dimensions are
even more dimly recognized, much less seriously engaged. Yet the debate
over guns, as is the case with many other contentious issues in American
history, cannot be intelligently pursued without recognizing its
constitutional dimensions. The Supreme Court's 2008 decision in Heller v. District of Columbia
confirmed that the Second Amendment means what it says: "the right of
the people to keep and bear arms shall not be infringed."
After Heller and its follow-on case, McDonald v. Chicago,
which applied the Second Amendment rights to the states, what
government cannot do is deny the individual interest in self-defense. As
a legal matter, that debate is settled.
The president and his allies seem to have missed the message, as
demonstrated by his continued insistence that most of the American
people, including many hunters, support his proposed gun-control
measures. Even if that claim were true, constitutionally protected
rights are guarded with particular vigor precisely when public opinion
turns against them. Meanwhile, the president's continued appeals to
emotion, capitalizing on a series of tragic mass shootings, also ill-fit
what ought to be a serious and dispassionate discussion.
While the courts are still sorting out Heller's
implications, politicians should not assume that they have a free hand
to restrict private gun ownership. Decades of case law interpreting and
applying the other provisions of the Bill of Rights show that there are
hard-and-fast limits on gun control.
The general framework is
straightforward and certainly well-known to those who have studied (let
alone taught) constitutional law. The government cannot abridge
constitutionally protected rights simply to make a symbolic point or
because it feels that something must be done. Any measure must be
justified by a legitimate government interest that is compelling or at
least important. At the same time, any regulation must be "narrowly
tailored" to achieve that interest.
On that basis, in a recent case the Supreme Court struck down a
federal ban on depictions of animal cruelty, rejecting the government's
argument that it had any legitimate interest in banning pictures and
videos associated with crimes, and finding—even assuming the
government's interest—that the statute swept up too much protected
speech. In this way, judicial balancing requires a careful weighing of
the government's interests against the individual's, with a thumb on the
scale in favor of the individual.
But you wouldn't know that from the current gun-control debate.
Several states, for example, are considering gun-insurance mandates
modeled after those for automobile insurance. There is no conceivable
public-safety benefit: Insurance policies cover accidents, not
intentional crimes, and criminals with illegal guns will just evade the
requirement. The real purpose is to make guns less affordable for
law-abiding citizens and thereby reduce private gun ownership. Identical
constitutionally suspect logic explains proposals to tax the sale of
bullets at excessive rates.
The courts, however, are no more likely to allow government to
undermine the Second Amendment than to undermine the First. A state
cannot circumvent the right to a free press by requiring that an
unfriendly newspaper carry millions in libel insurance or pay a
thousand-dollar tax on barrels of ink—the real motive, in either case,
would be transparent and the regulation struck down. How could the
result be any different for the right to keep and bear arms?
The same constitutional infirmity plagues the president's plan.
Consider his proposal for a new "assault weapons" ban, targeting a class
of weapons distinguished by their cosmetic features, such as a pistol
grip or threaded barrel. These guns may look sinister, but they don't
differ from other common weapons in any relevant respect—firing
mechanism, ammunition, magazine size—and so present no greater threat to
public safety. Needless to say, the government has no legitimate
interest in banning guns that gun-controllers simply do not like and
would not, themselves, care to own.
Also constitutionally suspect are restrictions on magazine size.
There is no question that a limit of 10 rounds (as the president has
proposed) or seven (as enacted by New York state last month) would
impair the right to self-defense. A magazine with 10 rounds may provide
adequate protection against a single nighttime intruder. But it may not:
What if there are two intruders?
Further compounding the constitutional problem is the fact that the
benefit of such limits is questionable. For a practiced and calm
shooter, swapping magazines takes no more than a couple of seconds. And a
swap may not even be necessary if the shooter has multiple guns, as in
several mass shootings in recent years.
While some limit on magazines may be constitutionally permissible,
one that falls below the capabilities of guns in common usage for
self-defense is probably not. The most popular guns for self-defense
take 15 or so rounds in their default configurations. Given the
uncertain benefit of restricting magazine size, not to mention the tens
of millions of "high capacity" magazines in circulation, something near
that number may be a constitutional minimum.
And while there is no question that procedural requirements like
background checks are permissible, that does not mean that the
government may place an undue burden on the right of law-abiding
citizens to protect themselves. Excessive waiting periods, registration
fees and the like are all subject to scrutiny, lest they infringe on
constitutionally guaranteed rights.
At bottom, the Constitution requires sensible and effective
regulation of guns that respects and upholds this most fundamental
right. Policies motivated by nothing more than discomfort with firearms,
often born of a lack of experience, fall far short.
Messrs. Rivkin and Grossman practice law in the
Washington, D.C., office of BakerHostetler. Mr. Rivkin served in the
Justice Department and the White House Counsel's Office in the Reagan
and George H.W. Bush administrations.
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