This past week, residents of the District of Columbia began to line up to apply for permits to carry handguns. It has been a few weeks since the U.S. Supreme Court ruled in a 5-4 decision that the D.C. handgun ban was unconstitutional, and finally, the debate over the operative clause of the Second Amendment has yielded policy results. I still wonder, however, if the majority opinion written by Justice Antonin Scalia correctly interprets the 221-year-old amendment.
The majority opinion based its reasoning on four principal grounds. The first was that the clause — “ … the right of the people to keep and bear Arms, shall not be infringed … “ — is the controlling clause of the amendment and refers to a pre-existing natural right to carry personal weapons as a means of self-defense. The second is that the phrase “A well regulated Militia, being necessary to the security of a free state … “refers to a citizen militia which would be comprised of all males that are physically capable of acting in the common defense. The third is that historical materials, including contemporary state constitutions, uphold an individual right to bear arms. And finally, no precedent precludes the Supreme Court’s interpretation.
Justice John Paul Stevens argues that if the Founding Fathers had been interested in an individual-rights aspect to the Second Amendment that the “militia” preamble to the phrase “ … to keep and bear Arms …” would not exist or would have made clear reference to an individual right contained within it. According to this reasoning, something like the U.S. National Guard — a militia run at the state level — would essentially be performing the duty of a “well regulated Militia” and would be fulfilling the need set forth by the amendment.
Claiming that the Second Amendment only offers a positive freedom that allows for the existence of the National Guard does not necessarily mean that people could or should not own firearms for the purpose of self-defense or hunting. It simply means that the rights guaranteed by the Second Amendment are limited to the militia.
On this reading of the amendment, state and local governments should be allowed to balance local interests in writing gun laws. A city like Washington D.C., an urban area with a high murder rate, should be allowed to restrict handgun possession if the particular needs and interests of its people are best served by such a policy.
Even if the individual rights claim made by the majority is accepted, it is not necessarily clear that gun control laws like the D.C. handgun ban are unconstitutional.
Erwin Chemerinsky, a former professor at the Duke University School of Law and now the founding dean of the University of California School of Law, Irvine, makes this argument: It is clear that no individual rights granted in the U.S. Constitution are absolute.
He gives the example of the First Amendment which states that no law abridging freedom of speech or religion allows government regulation. That is some pretty explicit language. Even so, the Supreme Court has consistently ruled that there are inherent limitations on this right. For instance, Justice Oliver Wendell Holmes, Jr. famously ruled in a 1919 Supreme Court case that a man cannot falsely shout, “Fire!” in a crowded theater. The late George Carlin was the genesis of a Supreme Court ruling that established guidelines regarding the decency of speech.
Clearly, there is a line that the government can draw as to what regulation is appropriate for individual rights. The Supreme Court maintains a distinction between what it considers laws that fall under “strict scrutiny” and laws that do not. Strict scrutiny refers to laws that are only upheld when the government can demonstrate a compelling purpose. Even rights explicitly defined in the Constitution, like property rights, do not receive “strict scrutiny.” As such, Chemerinsky argues that modern constitutional law shouldn’t treat guns any differently than other property. In other words, D.C.‘s government was restricting a right with a rational basis to achieve an end: reducing gun violence.
As such, I hope that future Supreme Court cases can clarify the level of scrutiny that the Court has in regards to firearms and that local and state governments can be given the power to restrict gun possession as necessary. As long as the means are reasonable and the institution can demonstrate a compelling interest, rational regulation of firearms should be allowed.
Eric Gregory is a State News columnist. Reach him at ericwgregory@gmail.com.
Support student media!
Please consider donating to The State News and help fund the future of journalism.
Discussion
Share and discuss “D.C. gun ban not unconstitutional” on social media.
