Guns

A recent ruling by the DC Court of Appeals holds that a ban on possessing handguns in the household is unconstitutional. The District of Columbia has long had a law that forbids its citizens from keeping handguns in their houses in an effort to reduce the high violent crime rate for which that city was once infamous.

This ruling is a milestone in the history of the debate over the meaning of the 2nd amendment, and will probably give the Supreme Court its first such case in many decades. With the Court significantly more conservative than it used to be we might see a ruling that would overturn much of the gun control legislation in this country. That would be a shame.

There is a significant and legitimate debate in this country over what rights exactly the 2nd amendment protects. Does it mean that individuals must have a right to bear arms at all times, or is the purpose to protect the existence of state and local militias in a country that had just won its independence based on those types of militias? I leave that debate to the side here. Assuming, arguendo, that the former interpretation of the Constitution is correct, I think there is still an argument that the District of Columbia has the ability to pass such gun control legislation as it has done.

The Constitution, through the Bill of Rights and by its very nature of establishing a limited government, reserves many rights to the people. However, it has long been established that many of these rights are not completely inviolate. Freedom of speech, freedom of the press, religious freedoms are just some examples of rights that we cherish in this country, but that have limitations placed on them by Congress.

The basic principle that the Supreme Court has used when evaluating whether a law is constitutional in this context has two parts. 1) Does the law serve some compelling national or state interest? 2) Is there a reasonable alternative way of achieving that interest that would not infringe on individual rights? This is typically called the ‘strict scrutiny test’. Actually, from what I know this test is used only in cases of racial segregation – a more relaxed form is used when evaluating issues of religious freedom, etc.

Now I’m just a law student, so my analysis is clearly one lacking in experience or significant research. But it seems pretty clear to me on its face that this ‘strict scrutiny’ test is validated in this case. I had this written as a draft (I swear) a few days ago, and just recently an Op-Ed piece by Chemerinksy, a respected Constitutional Law professor, in the Washington Post essentially made the same arguments as I have (giving me a very large head for today. Don’t worry, I’m sure it’ll come down soon.)

Plus, I would really hate to see much of gun control legislation invalidated when the evidence is pretty clear that it has had a positive effect on violent crime rates. If this does go up on appeal to the Supreme Court, it will be interesting to see if they take the case, and if so, how they rule on the issue.

Full Disclosure: while I used to be in favor of complete bans on handguns, my position has been shifting over the past year or so, and currently I’m kinda on the fence. See this recent editorial by Robert Levy for the classic libertarian case for the individuals’ right to bear arms.