Gun Control on Trial: Inside the Supreme Court
Battle Over the Second Amendment
By Brian Doherty
(National Book Network, 181 Pages, $16.95)
When the Supreme Court last June handed down its ruling in
District of Columbia v. Heller, a friend
of mine sent out an e-mail exclaiming, “I’m Legal!”
Shortly before moving to our nation’s capital, he had purchased
a handgun for self-defense. As far as he was concerned, D.C. law
said one thing about owning firearms and the Second Amendment said
something else. Thus, he was excited when the Supreme Court ruled
5–4 that the Second Amendment protected an individual right to own
a firearm, thereby tossing out D.C.’s odious handgun ban.
Alas, his joy was short-lived. A few weeks later, he sent out
another e-mail with the word “Crap!” in the subject line. The D.C.
City Council had rewritten its gun law, this time banning any
handgun that held more than 12 bullets in the magazine. Let’s just
say that his holds a few more than that.
The outcome of Heller is much like the circumstances
surrounding it: confusing and complex, with more questions than
answers. That point is driven home in Brian Doherty’s fine new
book, Gun Control on Trial: Inside the Supreme Court
Battle over the Second Amendment. In addition to
examining the history of Heller, Doherty, a senior editor
for Reason magazine, examines the history of gun rights
before the Second Amendment, how anti-gun legal scholars twisted
the original meaning of the Second Amendment and how more recent
scholarship has revived it, the ineffectiveness of gun-control
laws, and the cultural divide between Second Amendment supporters
and opponents.
It is remarkable how much Doherty packs into 181 pages. The
District of Columbia is the epicenter of the anti-Second Amendment
culture. The D.C. City Council passed its handgun ban in 1976. City
officials tend to treat those who disagree with it with
condescension and contempt. When an employee on the Taxicab
Commission once suggested that taxicab drivers be able to arm
themselves for self- defense, a spokesman for then mayor Anthony
Williams said, “The proposal is nutty, and obviously, it would not
be entertained seriously by any thinking person.” After D.C.
readjusted its laws in the wake of Heller so that guns
were no longer prohibited but regulated to the point of making
ownership exceedingly difficult, Mayor Adrian Fenty justified it
thusly: “I don’t think [the people of D.C.] intended that anybody
who had a vague notion of a threat should have access to a gun.”
Apparently the mayor doesn’t know or doesn’t care that once a
threat is real, it’s probably too late to go through all of the
city’s regulatory hoops.
It wasn’t always this way. As Doherty states, the “U.S. was a
country where the idea that its citizens had a right that the
government was not permitted to abrogate to possesses arms for
their personal use should have been unsurprising and obvious. And
it was.” The right to possess a firearm was (and still is)
essential for “defending that most basic of classical liberal
rights: that of self-preservation.”
Unfortunately, this clear understanding of the Second Amendment
was eventually obscured by scholars and activists who misused the
amendment’s first 13 words: “A well-regulated militia, being
necessary for the security of a free state…” Opponents of gun
rights have insisted that under the Second Amendment people have
the right to own a guns only insofar as they belong to a militia.
They explained away the latter part of the amendment, “the right of
the people to keep and bear arms, shall not be infringed,” by
claiming that “the people” referred to a collective, not an
individual.
Doherty demonstrates the absurdity of that interpretation by
first pointing out that the use of the term “the people” in other
amendments in the Bill of Rights, including the First and Fourth,
clearly refers to an individual right. Next, he shows that the
first part of the Second Amendment was in no way intended to
restrict the latter part. In the late 18th century, it was common
for the constitutions of state governments “to contain explanatory
prefaces that were not meant to restrict the right laid out in the
substantive, or operative, clause.” At that time, militias were
considered to be the bulwark of the people’s liberties and were
considered preferable to standing armies—something long forgotten
in our society. The maintenance of militias was one reason that an
individual had a right to bear arms, but far from the only one.
In the last 20 years or so, this more traditional view of the
Second Amendment has taken hold among many legal scholars, and was
one reason why Robert Levy felt the time was right for a legal
challenge to D.C.’s handgun ban. Levy, a constitutional scholar at
the libertarian Cato Institute, initially was dismissive of
mounting such a challenge. But he was eventually sold on the idea
by two other attorneys involved in the case, Clark Neily and Steve
Simpson of the libertarian nonprofit legal firm Institute for
Justice. Levy also recruited another Cato legal scholar, Gene
Healy, and an attorney in private practice, Alan Gura, to the
case.
The attorneys were careful to pick plaintiffs who were
sympathetic, and not criminals trying to reduce their sentences by
having a weapons charge thrown out. Primarily through word of mouth
they recruited Shelly Parker, an IT worker; Tom Palmer, a senior
editor at Cato; George Lyon and Gillian St. Lawrence, both
attorneys; Tracey Hanson, a federal bureaucrat; and Dick Heller, a
Special Police Officer for D.C. The lawsuit, when filed in 2003,
was called Parker v. District of Columbia.
It became District of Columbia v. Heller after the case
reached the D.C. appellate court. The appellate court ruled that
only Dick Heller had standing in the case because he was the only
one who could show actual harm due to D.C.’s handgun ban. Heller
only qualified because he had applied for a gun permit in D.C. and
had been denied. Luckily, he had a friend who understood the legal
concept of standing and knew Heller had wanted to challenge D.C.’s
ban for some time. It was this friend who pushed Heller to apply
for a permit.
This was not the only instance of the Heller case
hanging by a thread. Surprisingly, the National Rifle Association
at first opposed Heller because it felt that the time was
wrong for a Second Amendment case. It tried many legal maneuvers to
block it.
Leading up to his final discussion of Heller, Doherty
examines the academic research on gun control laws, research that
has yet to find any serious evidence that such laws are effective.
Here Doherty isn’t as comprehensive as elsewhere in the book.
He neglects to mention John Lott’s seminal work, More Guns,
Less Crime, which changed the thinking on gun rights by
popularizing the notion that criminals were less likely to commit
crimes in areas where they believed citizens were armed.
While Heller established that the Second Amendment
protects an individual right, Doherty notes it leaves open the
extent to which government can regulate guns. Waiting periods,
background checks, whether the Second Amendment applies not just to
the federal government but also states and municipalities—these are
all matters to be resolved in future cases. So too with many of
D.C.’s new restrictions, which include not only a prohibition on
any handgun that holds more than 12 bullets, but also a
registration process that can drag on for months and must be
repeated annually.
My friend will have to wait.
