Why is this long‐simmering dispute is coming to a head now? After all, the 2nd Amendment has been with us from the beginning of the Republic and gun control laws have been proliferating for generations. The main reason has been pretty straightforward: No one is quite sure how this Supreme Court would rule in a 2nd Amendment case. To be sure, as more conservative justices have joined the court, the prospects for a favorable ruling have improved since conservative jurists tend to emphasize the text of the Constitution and the original understanding of that text. Still, no one is really sure about the outcome of a pivotal case.
The situation changed when in May 2001 then‐Attorney General John Ashcroft announced a change in policy at the Department of Justice with respect to the 2nd Amendment. Ashcroft said the Department was adopting the view that the Amendment protects an individual right to keep and bear arms. It was an important symbolic victory because it showed that the conventional view—that the Amendment was only about militias and the National Guard–was losing not only academic but institutional support. Then a thorny problem arose. Criminal defense lawyers started to invoke the 2nd Amendment against federal prosecutors whenever they represented a client who was facing federal firearms charges. The sudden eruption of 2nd Amendment legal challenges meant that appeals courts would soon be addressing the issue and precedents would soon be coming left and right.
D.C. lawyers Alan Gura and Robert Levy decided to go on the offensive and file a constitutional challenge to the District of Columbia’s gun control laws, which are so draconian that residents cannot even keep a gun in their own home. (Levy is also a legal scholar at the Cato Institute, where I work). Gura and Levy represent a handful of ordinary, responsible adults who would like to have a gun in their home for self‐defense. One of the plaintiffs, a man named Dick Heller, works as a guard in a federal building. Under the bizarre laws of Washington, D.C., it is okay for Keller to have a gun during the day, but unlawful for him to have it with him in the evening in his home for self‐defense.
The Appeals Court Ruling
Gura and Levy were prepared to lose in the lower courts just so that they could ultimately bring a strong appeal to the Supreme Court. It was a pleasant surprise to them that a federal appeals court agreed with their arguments last week.
The legal merits of the controversy concern the meaning of the 2nd Amendment, which provides, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” The court noted that there are “two camps” in the debate over the meaning of the 2nd Amendment. “Collective rights theorists” maintain that the Amendment secures the power of state governments to preserve and arm militias. The other camp, “individual rights theorists,” maintains that the Amendment protects a right of individuals to possess arms for private use, such as self defense. The court readily admitted that the phrase “bear arms” could be read to have a military connotation, but only if it is viewed in isolation. Since “the people” and “keep” have individual and private meanings, the court concluded that “the 2nd Amendment protects an individual right to keep and bear arms.”
The court allowed that the government could still regulate the ownership and use of firearms since it noted such regulations in the common law even prior to the ratification of the American Constitution. So the court proceeded to consider whether the D.C. laws actually infringed upon the plaintiffs’ right to keep and bear arms. But the city attorneys essentially admitted that D.C.‘s firearm registration system amounted to a prohibition on handgun ownership, the court had little difficulty in concluding that the laws were unconstitutional.
What Happens Now?
Within a few hours of the ruling, Fenty vowed to “vigorously enforce our handgun laws” as the city seeks to overturn this favorable 2nd Amendment precedent. Thus, as a practical matter, there is no immediate change in the law. Anyone found with a handgun in D.C. still risks arrest and imprisonment.
The Supreme Court will soon be asked to review this case. If the court declines review, the favorable precedent will stand and D.C. will have to make some changes so as to allow residents to keep handguns in their homes. But court watchers seem to agree that it is more than likely that the Supreme Court will hear this case. The federal appeals courts around the country have issued conflicting rulings with respect to the 2nd Amendment and that is usually when the high court takes a case — so as to bring uniformity to federal law.
Even if the court takes the case and issues a favorable 2nd Amendment ruling, expect small steps. This case only concerns handguns in the homes of D.C. residents. Nothing else. Many questions about the scope of the 2nd Amendment will be left for future litigation. Just as free speech and property rights controversies never cease, neither will controversies over the meaning of the 2nd Amendment. The key thing is to take a step back and observe the overall trend line. After a long period at the very bottom of the “constitutional chart,” the 2nd Amendment is finally moving in the right direction.