It seems that the Washington Post op-ed page is hell bent on embarassing itself on the DC gun ban. On Monday it was an hysterical argument, today it is an argument so weird that only an intellectual would believe it. Here is the key passage from this missive by Professor Erwin Chemerinsky:
But where there is little reason to doubt the legislatures’ choices, courts give great deference to the legislatures and uphold laws so long as they are reasonably related to a legitimate government purpose. For example, discrimination that is based on characteristics such as age, disability and sexual orientation need to meet only this more relaxed standard. Even rights enumerated in the Constitution, such as property rights, generally receive only this relaxed level of judicial review. For this reason, for 70 years, government regulation of the economy to protect employees and consumers has been upheld in the face of claims that it unduly restricts property rights.
In other words, even if the D.C. Circuit is right in holding that the Second Amendment creates individual rights, that does not answer the question as to the level of scrutiny to be used in evaluating gun control laws. I believe that there is a strong argument that the regulation of guns should be treated the same as other regulation of property under modern constitutional law: The regulation should be allowed so long as it is rationally related to achieving a legitimate government purpose.
Under this standard, there is no doubt that the D.C. gun law is constitutional. The city’s government was pursuing the legitimate goal of decreasing gun violence, and its means were certainly reasonable.
So let me get this straight. Since the Court lets legislatures regulate property, it should let them regulate guns to the point of banning ownership. To see how ridiculous that is, let’s turn that logic onto property. It means that government can ban the ownership of property as long as government has a legitimate purpose. I’m unaware of any court case saying that government can ban the ownership of property. But if Herrdoktorprofessor Chemerinsky’s logic catches on, maybe landowners will have more than just Kelo to worry about.
In short, it would seem that fundamental to any right is the ability to exercise it. But Chemerinsky’s argument amounts to you have the right to own a gun unless the government says you don’t.
Clearly, the Washington Post isn’t thinking through the anti-gun commentary that it is letting on its op-ed pages.