The Public Policy

Old Heller

The D.C. City government is thumbing its nose at the Supreme Court's gun ruling. It's likely to backfire.

By 7.18.08

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Gun-rights supporters are going to have to come down from their post-Heller high a little earlier than they'd hoped. There's already a considerable amount of legal maneuvering taking place, and for much of it, a bullseye is uncertain.

Most promising are challenges to gun bans nationwide. Since the Supreme Court struck down the capital's ban, it's almost a no-brainer to predict the Court will strike down those in places like Chicago and its suburbs as well.

There's a slight wrinkle when it comes to "incorporation" -- D.C. is a federal enclave, so in Heller the Court didn't have to decide whether the Second Amendment applies to state and local laws as well. However, for the most part, the Bill of Rights has been incorporated (a city council can't limit free speech, even though the First Amendment only restricts "Congress"), and there's no reason to expect anything different to happen when it comes to gun rights.

The wild card lies in what the Supreme Court will determine to be "reasonable" regulation. No right is absolute, and Antonin Scalia's majority Heller opinion explicitly recognized some restrictions as appropriate. For example, bans on felons owning guns, machine-gun regulations, and limits on concealed carry are OK.

IT'S NOT HARD to see how this will get messy in a hurry. The logic in Heller was simple -- the Second Amendment protects American individuals' right to have civilian arms for lawful purposes, so a complete ban on a major type of gun is unconstitutional.

This solved the question at hand quite cleanly, but despite mentioning a few exceptions, the opinion did not create a test for assessing non-ban regulations.

When it comes to the Second Amendment, the Court might end up using one of the "standards of review" it uses for other constitutional questions, or it might come up with a new test. Regardless, the goal will be to balance government safety concerns against the right to keep and bear arms -- the sort of subjective judgment that legislatures are better suited to make.

And since four of the nine judges are already on record as viewing a complete ban as "reasonable," a defection from any of the five judges who ruled with the majority on Heller will probably be enough to uphold any gun-control law. Anti-gunners should see if they can find a particularly wobbly, unprincipled justice among those five (coughKennedycough), and target their appeals to him.

ENTER THE D.C. City Council, which recently passed 90-day "emergency" legislation, and plans to work on (presumably quite similar) permanent legislation in September.

Under the invalidated laws, residents could not register handguns (meaning that almost always, residents could not own handguns), and were required to store long guns in non-functioning states. There was no written exception for self-defense with long guns -- in theory, if a resident experienced a break-in, and took out his legally owned and -stored long gun for protection, he could face penalties.

There are two important aspects to D.C. law today. One comprises the new laws passed to comply with Heller. Two are the laws, old and new, that Heller did not address.

Let's start with the Heller-compliance measures: The city will finally grant handgun permits. It will retain storage requirements, though ("unloaded and either disassembled or bound by a trigger lock...or similar device"), adding a self-defense exception.

In practice, this is a baby step, practically a nose-thumbing at the notion of self-defense. It will give D.C. residents an extra option for defending themselves, the handgun. And D.C. residents rich enough to live in multi-story homes might, in late-night break-ins, have time to put together or remove the trigger locks from, and load, their weapons before the intruders make it upstairs.

Maybe the greater availability of handguns to the law-abiding will deter some crime. But in most cases, a handgun rendered non-functional is a handgun that can't be reached fast enough to address an emergency. This is a powerful case for this measure's unconstitutionality.

BUT WHEN IT comes to the legal details, it's closer to a coin toss. In his opinion, Scalia made an issue of the long-gun law's lack of an exception for self-defense -- if he objected to the storage requirement in itself, he never said so.

It's possible Scalia avoided the question simply because it wasn't before the court. At issue was whether the government could ban self-defensive gun use, not what constitutes the over-burdening of same.

Moving on to the laws that Heller didn't address: The registration requirement remains. There are several burdens to handgun registration -- applicants have to clear a background check, pass vision and gun-safety tests, pay a fee, and submit the gun for ballistics testing. "There are circumstances where it could take months," the police chief told the Washington Post.

Many of these steps are obnoxious, unlikely to reduce crime, and clearly designed only to make gun ownership a hassle, but there's really no telling what the Supreme Court will do with them. However, the courts are quite likely to crush the District's long-running ban on "machine guns," not because it bans actual machine guns, but because it inaccurately defines the term to include semi-automatic weapons that can "shoot, or can be readily converted or restored to shoot" more than 12 rounds.

Even semiautomatic pistols that come with 10-round magazines typically accept higher-capacity clips, so this has much the same effect the original handgun ban had. In fact, Dick Heller himself was unable to register his handgun after winning in court the right to do so (explicitly, not just in principle: "the District must permit Heller to register his handgun").

Part of the majority's logic in Heller was that handguns are commonly owned -- "the quintessential self-defense weapon." Yes, many of these handguns are revolvers, but semi-automatic pistols aren't rare in any sense of the term, or any less well-suited to self-defense.

What this all means is that it's going to be a battle. D.C. has stepped back into its role as a testing ground for various gun-control measures. There are better things for the city to spend money on than the defense of ineffective crime measures, but at least the Second Amendment ball is at last rolling full tilt.

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About the Author
Robert VerBruggen is an associate editor at National Review. You can follow his writing here.