The other day I spent most of the morning with a .38 in my hand. It was very similar to the handgun I learned to shoot in Alabama many years ago, when I was single, childless and, of course, a whole lot younger. My dad thought I should know how to take care of myself when I was out on my own, and firing a handgun was an important skill to have (along with changing a tire and checking the oil), so he set me up with some lessons with the county agent, Watt Carter. I’d handled shotguns and enjoyed shooting skeet, but a handgun was different—more menacing somehow. And Watt, with his cowboy boots and handlebar mustache, sternly lectured me on gun safety, even as he was showing me how to line up my target in the sights.
That was a long time ago, but I got the hang of it again Tuesday at a northern Virginia range called the Blue Ridge Arsenal. (Granted, my aim will surely be better next time, when I make my target the Auburn sign I will soon have to display in my office--I lost a bet on the Iron Bowl Saturday, but I am trying to block that out.)
We’d gone out to the range last week for a story on the Court’s announcement that it would finally decide one of Con Law’s great unanswered questions: Does the 2nd Amendment grant an individual the right to keep a gun in the home? Officials in Washington, D.C., where handguns are outlawed under one of the stiffest statutes in the nation, say absolutely not. So we figured we’d hear the other side, out at the gun shop in Virginia, which not only allows private ownership of handguns, but is one of roughly 40 states that readily permits citizens without a criminal record to carry a weapon.
It’s hard to believe the Court has never before answered that critical question, and the resolution could have implications for gun laws—and gun sales—across the country. If you’re a D.C. resident, for example, you can go to another state and shoot a firearm, but you can’t legally take it home with you.
If the Court strikes down D.C.’s handgun ban, officials predict thousands of people in the nation’s capital will buy guns. The same likely would happen in a handful of cities across the country with similar gun bans—notably Chicago. And beyond the bans, there are scores of other restrictions on gun ownership in cities and states across the country that could be vulnerable.
So the case has broad implications—not only practical, but doctrinal. The Court is literally writing on a blank slate. It must analyze the text, the structure, the history of the 2nd Amendment, as it decides whether the “right to keep and bear arms” was intended to protect an individual’s right to own a gun or whether, as Washington D.C. argues, the right only protects a state’s ability to maintain a “well regulated militia.”
The case, as was pointed out last week, puts the Court right back into another raging battle in the culture wars—this one pitting gun owners against gun haters, libertarians (and conservatives) against liberals, country folks against urbanites. It’s all portrayed as very red state/blue state—and with a presidential election getting closer by the day.
Of course, the Court finished last term sharply divided after slugging it out on several hot-button social issues—the most controversial being the partial-birth abortion case, which divided the justices 5-4. Anthony Kennedy, who seems increasingly comfortable playing the role of King Solomon, wrote that opinion, which upheld a federal ban on the procedure.
On the surface, the gun case, too, would appear headed straight for another 5-4 split, with liberals on one side, conservatives on the other and—thanks to an ambiguous and unresolved constitutional provision--Kennedy divining the answer to resolve it.
But I wouldn’t confidently bet on that (not that I am not betting on anything for awhile, since I’m now confronting the horror of looking at that Auburn sign until spring practice). If I were betting, I don’t think I’d put it all on 5-4.
It’s easy to paint the gun case in starkly red and blue hues, but this case has shades of purple in it—both on the policy arguments and the legal ones.
On policy, there’s no question the 2nd Amendment is a “conservative” issue for politicians. (Look at Mitt Romney trying to establish his bona fides as a devoted hunter of small game.) But not all Republicans oppose gun bans—just as not all Democrats endorse them.
I was talking to a prominent conservative legal scholar the other day, and he conceded that he wasn’t “conservative” on the 2nd Amendment. His family had been touched by gun violence, and he supported gun bans.
And even some who argue forcefully for gun rights welcome some regulation. At the Blue Ridge Arsenal, for instance, there was a lot of talk about mandatory gun safety lessons for new gun owners. Other gun owners support the Bush Administration’s approach: The 2nd Amendment protects an individual’s right to own a gun, but the right is not absolute. Some gun control laws are reasonable, the Administration has argued, including bans on assault weapons.
On the flip side, people who support gun control have been wary about going as far as Washington, D.C. did back in 1976, when it passed a law banning handguns (and requiring that shotguns be stored disassembled). Officials in the nation’s capital expected other cities to follow their lead. But here’s the thing: Very few did. Chicago passed a handgun ban, as did 12 other Illinois communities. But handguns generally are legal in most cities and states, although the restrictions vary greatly. Some areas, for instance, require waiting periods—a restriction that would certainly be attacked as unconstitutional if the Court strikes down the D.C. gun ban.
As for the legal arguments, the case doesn’t shake out that neatly, either.
To be sure, people who are tolerant of guns (like at the Blue Ridge Arsenal or in my home state of Alabama) will tend to think the Framers surely wouldn’t allow the government to dictate that its citizens be unarmed and defenseless. People who are anti-gun (like many DC residents) are going to be more inclined to think the Framers surely were concerned about state-run militias.
Some of that thinking trickles into the legal analysis. Just look at Judge Alex Kozinski’s dissenting opinion when the 9th Circuit took up the 2nd Amendment and ruled it did not protect individual rights.
“The majority falls prey to the delusion—popular in some circles—that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll,” Kozinski wrote when the 9th Circuit refused to hear the case en banc. “But the simple truth—born of experience—is that tyranny thrives best where government need not fear the wrath of an armed people.”
But this is a case that could surprise, because the 2nd Amendment, once you get past the policy arguments and into legal analysis, doesn’t always divide along clear ideological lines. In recent years, a growing number of liberal legal scholars (including perhaps the most prominent liberal legal scholar, Harvard’s Laurence Tribe) have studied the history and text of the 2nd Amendment and concluded it does, in fact, protect a more expansive individual right to bear arms.
Their arguments could resonate with some of the Court’s liberals—notably David Souter, whose attention to history and text (not to mention his New Hampshire “live free or die” roots) make him more of a wild card in the case than many might think.
The Court’s four solid judicial conservatives (Roberts, Scalia, Thomas and Alito) are likely to rule the 2nd Amendment protects an individual right to bear arms—indeed, even the way the Court framed the question for review seems tilted against the gun ban.
And Kennedy may not anguish much, especially since he generally favors expanding constitutional rights. This is a case where he could easily favor individual rights, while still allowing reasonable restrictions—a classic Kennedy approach.
So beyond the question of what the 2nd Amendment means for individual rights, the decision in this case—expected next summer—could well answer another question once and for all: Is the 2nd Amendment a “conservative” legal issue?
This time, the justice with the answer could well be David Souter. And then it’s all in the details.
UPDATE: Many thanks to the commenters who pointed out that the vast majority of states have "right to carry" laws, which of course amounts to more than a "few," as I'd originally written. (Even someone like me who says "the other day" to mean anything from yesterday to eight months ago realizes 40 "right to carry" states in no way amounts to a "few.") I also clarified that I mean a person without a "criminal record," as opposed to a "police" record. Thanks to my friend Patterico, who linked to this site and whose readers also helpfully pointed all this out. One his commenters also linked to this interesting site, which shows how the carry laws have changed over the years.
The number of states that let people carry guns is actually tricky to nail down. Only two states flatly prohibit it (Wisconsin and Illinois), but eight others have restrictive systems in place. I agree with one of Patterico's commenters that 37 is the LOWEST DEFENSIBLE number--the 36 states with "shall carry" laws and Vermont, which doesn't require a permit. But I settled on 40, because three other states have, according to the NRA, farily administered discretionary systems (Alabama, Connecticut and Iowa).
And, finally, I have two words for those of you who say I need to get out of D.C. more often: You're right.