CATO's Robert Levy on DC v Heller, oral arguments heard 18 March

[alan]

Fighting for Our Right to Bear Arms
by Robert A. Levy


This article appeared in the Boston Globe on March 18, 2008.

Does the Constitution's Second Amendment give individuals the right to bear arms or is that right reserved exclusively for members of a "well-regulated militia"? That is the question the US Supreme Court will consider today in the case of District of Columbia v. Heller, a Second Amendment challenge to the District of Columbia's ban on all functional firearms.

I helped bring this case to court on behalf of six Washington, D.C., residents who want to keep functional firearms in their homes to defend themselves and their families should the need arise. But Washington's law bans all handguns not registered before 1976 and requires that lawfully owned shotguns and rifles in the home be kept unloaded and either disassembled or bound by a trigger lock at all times. There is no exception for self-defense. Washington, often known as the "murder capital of the nation," cannot defend its citizens and will not allow them to defend themselves.

Washington, often known as the 'murder capital of the nation,' cannot defend its citizens and will not allow them to defend themselves.
This case requires, at a minimum, two findings from the Supreme Court: First, the Second Amendment secures an individual right to keep and bear arms - not a right limited to people engaged in state militia service. Second, the district's ban on all functional firearms violates that individual right and is, therefore, unconstitutional.

An outpouring of modern scholarship - much of it coming from liberal constitutional scholars, like Laurence Tribe at Harvard University and Akhil Amar at Yale University - supports the view that the right to keep and bear arms is an individual right. After all, the Second Amendment is in the Bill of Rights, the part of the Constitution explicitly designed to secure individual rights. And the text of the amendment refers to the "right of the people" - the same people mentioned in the First, Fourth, Ninth and Tenth Amendments. It is inconceivable that the framers - seeking to provide Americans with a means to resist tyrannical government - would fashion a right that can be exercised only in the context of a militia that is under government control.

But can Washington's ban on all functional firearms coexist with a Second Amendment that secures an individual right? That question might hinge on how rigorously the court reviews the constitutionality of Second Amendment restrictions. If the court believes the Second Amendment meaningfully constrains government, Washington's ban is impermissible.

Even if the court believes that a ban on an entire class of protected weapons can sometimes be justified, it should conclude that regulations like those in Washington are subject to strict judicial scrutiny: government, if challenged, would have to demonstrate that restrictions serve a compelling state interest, will be effective at attaining the desired goal, and do not unnecessarily compromise Second Amendment rights. That three-part standard has considerable teeth, but will not foreclose legitimate gun regulations, such as sensible registration requirements, proficiency testing, instant background checks, bans on massively destructive weapons, and prohibitions on gun ownership by children, mental incompetents, and violent felons.

Robert A. Levy is co-counsel to Mr. Heller and senior fellow in constitutional studies at the Cato Institute.

More by Robert A. LevyThe court rigorously scrutinizes all regulations that infringe on personal "fundamental" rights - defined as those rights "implicit in the concept of ordered liberty" or "deeply rooted in the nation's history and traditions." Express provisions in the Bill of Rights are certainly fundamental, and the right to keep and bear arms - occasionally a matter of life-and-death significance - is no exception.

If the district's outright ban on all handguns, in all homes, at all times, for all purposes, is determined by the court to pass muster, it will mean that the Supreme Court intends to rubberstamp just about any regulation that a legislature can dream up - no matter whether the government has offered any justification whatsoever, much less a justification that would survive strict scrutiny. That would, in effect, excise the Second Amendment from the Constitution. A right that cannot be enforced is no right at all.

At root, the Heller case is simple. It's about self-defense: individuals living in a dangerous community who want to protect themselves in their own homes when necessary. The Second Amendment to the Constitution was intended to safeguard that right. Banning handguns outright is unconstitutional.

 

[Leatherneck]

That's a good summary of the Heller argument. But this is disturbing:

That three-part standard has considerable teeth, but will not foreclose legitimate gun regulations, such as sensible registration requirements, proficiency testing, instant background checks, bans on massively destructive weapons, and prohibitions on gun ownership by children, mental incompetents, and violent felons.

That virtually invites the supremes to use the words in bold in their writings, thus enshrining forever all those measures. Why give up ground to the enemy so easily?

TC

 

[OMGWTFBBQ]

That virtually invites the supremes to use the words in bold in their writings, thus enshrining forever all those measures. Why give up ground to the enemy so easily?

That ground currently belongs to the enemy, as did(and does, until the supremes say otherwise) the 2nd amendment's interpretation as a collective right. I have no doubt we'll get there eventually, but it ain't happening over night.

 

[SWMAN]

The test for reasonable arms to be had by the peasants in my opinion is whether or not a arm is either currently used in government supported security and safety forces or is a lineal decendant from arms that were currently in use at the time of the 2A adaption. The test for reasonable gun control should be if it infringes upon the right to keep and bear arms. Tough standard to figure out, huh?

 

[ilbob]

That three-part standard has considerable teeth, but will not foreclose legitimate gun regulations, such as sensible registration requirements, proficiency testing, instant background checks, bans on massively destructive weapons, and prohibitions on gun ownership by children, mental incompetents, and violent felons.

That virtually invites the supremes to use the words in bold in their writings, thus enshrining forever all those measures. Why give up ground to the enemy so easily?

Which provisions he suggested are reasonable do you have a real objection to?

registration - been in place since 1968. every time you buy a gun at a dealer.

proficiency testing - as long as it is not structured to prevent gun ownership, how is this all that bad? remember the well regulated part.

instant checks - do you prefer non-instant checks?

wmd? be real.

prohibiting gun ownership by those who are unable to use them wisely? how is that bad?

 

[ceetee]

prohibiting gun ownership by those who are unable to use them wisely? how is that bad?

Who writes the definition of "proficient?" Do I get to say what "proficient" means? Or does "proficient" mean if you can't pass a Navy Seal PT test, followed by a ten-mile timed march, and then get fifty-out-of-fifty on a 6" bull at 100 yards with your .38 snubbie, then you're just not "proficient" enough...?

 

[ilbob]

Who writes the definition of "proficient?" Do I get to say what "proficient" means? Or does "proficient" mean if you can't pass a Navy Seal PT test, followed by a ten-mile timed march, and then get fifty-out-of-fifty on a 6" bull at 100 yards with your .38 snubbie, then you're just not "proficient" enough...?

there are some minor issues that would need to be resolved if some sort of proficiency test was required. not a whole lot different than requiring voters to pre-register to be allowed to vote.

i suspect that any proficiency test designed to weed out the majority of people from owning firearms would be tossed out something like the literacy laws were for voters.

but a test that showed you had enough basic firearms knowledge to safely own firearms would not be especially intrusive. not that i am in favor of such a thing, but in and of itself such a requirement might well be considered reasonable by the courts.

 

[makarova]

Registration

I submit registration is not reasonable. To demonstrate that it is reasonable you must show the number of cases that have been solved by a registration list. Then you must show that it cannot be used to infringe this fundamental civil right.
1.The number of crimes in the U.S. that have been solved by the use of a registration list must number in the dozens at least

2.A good example of infringement is NYC requiring the registration of all long guns, then using that list to seize rifles listed as "assault rifles" after there had been a specific promise(although not codified into law) that the list would not be used for this purpose.

The fact that registration is currently required for purchase in no way proves registration is reasonable. Current U.S. law forbids the construction of a database of gunowners. My information is that this is happening now. Do you still think registration is reasonable?

 

[alan]

Makarova:

I grew up in NYC and lived there for many years. I permanently removed myself from NYC in 1967, due to and after the proposal and enactment of it's long gun registration ordinance, which I testified against during the dog and pony show that passed for city council hearings.

By the way, as originally enacted, the registration amounted to $5.00, the payment of which covered the registratiion of as many long guns (rifles and shotguns) one happened to be registering. What is that fee these days?

I'm a bit past 75 years of age, and prior to retirement I lived and worked in 20some odd states in this country, as well as 3 foreign countries (Western Europe). I do not believe that I ever saw or heard of a single gun control law that I thought even slightly reasonable, for I do not recall ever having either seen or heard of one that did not adversley impact upon the law abiding, usually in the name of some oh so conveniently unspecified "greater good", one that was somehow, no matter hard pressed by it were the law abiding, never achieved.

 

[Winchester 73]

1.The number of crimes in the U.S. that have been solved by the use of a registration list must number in the dozens at least

Good point.Canada has had handgun registration since 1934.
According to the RCMP not one crime has been solved in the last 74 years in Canada due to registration.
It doesn't take a brain surgeon to realize why it doesn't work.

 

[C. Rabbit]

registration - been in place since 1968. every time you buy a gun at a dealer.

It does nothing to help solve crime but allows for later government confiscation. And of course the government could make a registration program very burdensome.

And I hadn't heard of this current registration system you speak of. Could you clarify?

proficiency testing - as long as it is not structured to prevent gun ownership, how is this all that bad? remember the well regulated part.

And you think the anti's won't try to structure it to prevent gun ownership? Besides that, it is wrong on simple principle. It is absurd that one should have to prove a government decreed proficiency to own a gun. Guns are not so dangerous that they kill through accidents - but through stupidness and neglect of simple rules.

wmd? be real.

The gov designated a semi-automatic shotgun a 'destructive device'. What's to stop them from saying machine guns aren't 'massively destructive' if they get leeway from SCOTUS?

The Appeals Court had it right - when they said DC could not excuse its pistol ban by saying other weapons were allowed.

prohibiting gun ownership by those who are unable to use them wisely? how is that bad?

So you're against ownership of guns by people under 18 years old? Or even 21, depending on how far it's pushed? And what happens when children can't even possess a gun without adult supervision? He's talking of bans on ownership by children, not just felons. And, of course, to ensure children can't handle guns without adult supervision, locks and safes will be required.

The antis do not negotiate in good faith, nor will they abide the spirit of the ruling. They will use every rhetorical niche they can to regulate firearms.

If we do not get a strong ruling from the SCOTUS, that says, in spirit and in the detail of the law, that the bill of rights cannot be regulated into a shamble of what it meant with a thousand laws, than the overall situation won't change for most of us. Yes, people in Chicago and similar cities will have a chance to sue and get the bans overturned, but loads of regulations will stay intact.

We need the SCOTUS to say, loud and clear, that the 2nd amendment means what it says - no regulations or laws that infringe on our right to keep and bear all arms.

CR

 

[Run&Shoot]

I was shocked that a writer for the CATO institue would be qualifying the 2A with those restrictions. CATO is supposed to be libertarian I thought.

Heller should be a bell weather case. This is the bes chance for the Court to take a stand on the Constitution. If the 2A is ruled differently then they would rule on the 1A then it is a bad sign.

If by some miracle they rule the 2A as broad as the 1A and favor liberty over safety, then we are on a fantastic role to finally reclaim a key protection of individual rights.

I think most of the justices must be aware that their decision will send a very clear signal either way to the country for the next 100 years.

Can;t wait for their decision in June. Looks good so far but you never know.

 

[ilbob]

I think you need to consider the difference between "reasonable" regulations as defined by the courts, and regulations that actually do any good.

The vast majority of government regulations don't really serve any good purpose. If the test was that they did, most government regulations would just go away.

It is going to be very hard to argue that registration infringes on the RKBA since we have had de facto registration of all firearms bought from dealers since 1968, and it has had little negative effect on the number of firearms being sold. Registration such as Chicago, DC, and NYC have that is more along the lines of a near prohibition is a different case.

I also do not think the courts are going to care a whole lot about the potential for misuse of registration data in determining if it is "reasonable". That is a different court case.

I am not arguing for any kind of registration. many years of registration in gun unfriendly places has proven beyond a shadow of a doubt that it is not effective in preventing crime. But a lack of utility does not make a regulation "unreasonable".

I also think that other regulations like the instant check system will be found to be reasonable, as will prohibitions on possession of firearms by violent offenders.

Restrictions on certain kinds of semi-auto firearms, and firearms with certain features that are unpopular with the PC crowd, may or may not be found "reasonable". I would hope not, but it is really hard to tell what a court might be convinced is "reasonable". After all courts have decided repeatedly that it is OK to stop people for road side sobriety checks even when there is no evidence at all to show they might be under the influence. There is nothing at all reasonable about that, but it has been allowed for many years.

Thats why we cannot hang our hat even on a winning decision. We will still have to duke it out with the antis in the legislatures.

 

[lil ski]

I have a big problem with the proficiency testing for ownership. I do not have a problem with it for ccw permits.

 

[Blackbeard]

Restrictions on certain kinds of semi-auto firearms, and firearms with certain features that are unpopular with the PC crowd, may or may not be found "reasonable".

I assume those types of restrictions would be viewed in the light of the militia clause, meaning if it is useful for militia duty, then banning it is not reasonable.

 

[ilbob]

Restrictions on certain kinds of semi-auto firearms, and firearms with certain features that are unpopular with the PC crowd, may or may not be found "reasonable".

I assume those types of restrictions would be viewed in the light of the militia clause, meaning if it is useful for militia duty, then banning it is not reasonable.

I would assume nothing, until the SC actually issues a ruling on a specific issue.

Suppose the SC decouples the first and second clauses of the 2A. This seems like a good bet. The wording of the second clause says nothing about what kind of arms are covered, or that membership in a militia is required. That might be good for us since it would be very difficult to claim an EBR is not an arm.

If they determine that the 2A is only operative with respect to some kind of militia context, thats the basic tenet of the collective rights argument and all kinds of mischief is possible. Keep in mind the first clause also uses the term "well regulated militia". That could well be taken to mean any kind of regulation a government might put in place was acceptable.

I am hoping they decouple the two clauses as that would appear to give us the most bang for the buck.

 

[ceetee]

I have a problem with calling proficiency testing of potential firearms owners "reasonable". Would you find it reasonable to require potential voters to demonstrate their proficiency in choosing among candidates before allowing them to register to vote? Would a court order pre-vote proficiency testing?

I understand that there's really no way to predict the actions of a group of grumpy old men (and women - gotta be equal), but I would be highly disappointed...

 

[Snake Eyes]

And I hadn't heard of this current registration system you speak of. Could you clarify?

Form 4473.

You fill one out every time you buy a gun from an FFL. And the government "owns" those forms, whether they are kept by the dealer or the government. And the government uses them to inform themselves of every gun you've purchased through a dealer.

As some one who has been visited by the ATF, whose agents had a copy of every Form 4473 I'd ever filled out, and has been threatened by said agents, I don't find those forms reasonable, nor do I find the government use of them to be judicious.

 

[ilbob]

I have a big problem with the proficiency testing for ownership. I do not have a problem with it for ccw permits.

The right protected is both keep and bear. I don't see how you can claim that some kind of proficiency requirement for one is reasonable but its not for the other one.

 

[alan]

ilbob Quote:
I have a big problem with the proficiency testing for ownership. I do not have a problem with it for ccw permits.

The right protected is both keep and bear. I don't see how you can claim that some kind of proficiency requirement for one is reasonable but its not for the other one.

------------------------------

Some other posts have mentioned this point too, I believe. My question re "profiency testing" is simply as follows. Who defines the term, and how do they spell it?

 

[ceetee]

The right protected is both keep and bear. I don't see how you can claim that some kind of proficiency requirement for one is reasonable but its not for the other one.

Yep. A person is either mature and stable enough to be able to own and carry weapons, or he/she isn't. Since America is the land of "innocent until proven guilty", every adult should be assumed to be both mature enough, and stable enough, until they show themselves otherwise.

 

[ilbob]

A person is either mature and stable enough to be able to own and carry weapons, or he/she isn't. Since America is the land of "innocent until proven guilty", every adult should be assumed to be both mature enough, and stable enough, until they show themselves otherwise.

The innocent until proven guilty thing only applies within the confines of a criminal trial. It has nothing whatsoever to do with any other venue or circumstance.

 

[Poper]

After all courts have decided repeatedly that it is OK to stop people for road side sobriety checks even when there is no evidence at all to show they might be under the influence. There is nothing at all reasonable about that, but it has been allowed for many years.

I may be incorrect, but it would seem to me there is considerable difference between exercising a privilege (driving) and exercising a right (speech/KBA).
However, I have noticed politicians/do-gooders/lawyers/courts tend to read different meanings into words and phrases that the typical layman. I.E. "infringed" means to the layman "anything that would hinder the free exercise thereof" and politicians/do-gooders/lawyers/courts would define "infringment" as "any imposed burden the majority of the great unwashed masses will tollerate without revolt in exercising their right".

But then, I too, am a charter member of the great unwashed.
So what the heck do I know?

Poper

 

[Beatnik]

I have a big problem with the proficiency testing for ownership. I do not have a problem with it for ccw permits.

Remember that here you're likely outnumbered by the people who have a problem with the mere existence of ccw permits, regardless of what one needs to do to qualify for one.

 

[Diamondback]

Expect The SCOTUS in the Heller case to rule that SOME restrictions may be "reasonable". The courts have never gone so far as to find the First Amendment protects an individual's right to erroneously yell "FIRE" in a crowded theater. In another example, Libel is not secured by Free Speech. It is just my opinion that many restrictions relative to the Second will be defined subsequently by The Supreme Court, piecemeal, in a series of challenges. The Left will certainly pursue EVERY opportunity to limit "the people's right" to bear arms. As always......we must remain vigilant and resolute and meet them head on in each dissent. We will have victories and some defeats along the way. However, if The SCOTUS rules, in Heller, that the Second protects individuals right to bear arms and is not reserved exclusively for members of a "well-regulated militia", then we have a good beginning.

-regards