Fighting for Our Right to Bear Arms

March 18, 2008 • Commentary
This article appeared in the Boston Globe on March 18, 2008.

Does the Constitution’s Second Amendment give individuals the right to bear arms or is that right reserved exclusively for members of a “well‐​regulated militia”? That is the question the US Supreme Court will consider today in the case of District of Columbia v. Heller, a Second Amendment challenge to the District of Columbia’s ban on all functional firearms.

I helped bring this case to court on behalf of six Washington, D.C., residents who want to keep functional firearms in their homes to defend themselves and their families should the need arise. But Washington’s law bans all handguns not registered before 1976 and requires that lawfully owned shotguns and rifles in the home be kept unloaded and either disassembled or bound by a trigger lock at all times. There is no exception for self‐​defense. Washington, often known as the “murder capital of the nation,” cannot defend its citizens and will not allow them to defend themselves.

This case requires, at a minimum, two findings from the Supreme Court: First, the Second Amendment secures an individual right to keep and bear arms — not a right limited to people engaged in state militia service. Second, the district’s ban on all functional firearms violates that individual right and is, therefore, unconstitutional.

An outpouring of modern scholarship — much of it coming from liberal constitutional scholars, like Laurence Tribe at Harvard University and Akhil Amar at Yale University — supports the view that the right to keep and bear arms is an individual right. After all, the Second Amendment is in the Bill of Rights, the part of the Constitution explicitly designed to secure individual rights. And the text of the amendment refers to the “right of the people” — the same people mentioned in the First, Fourth, Ninth and Tenth Amendments. It is inconceivable that the framers — seeking to provide Americans with a means to resist tyrannical government — would fashion a right that can be exercised only in the context of a militia that is under government control.

But can Washington’s ban on all functional firearms coexist with a Second Amendment that secures an individual right? That question might hinge on how rigorously the court reviews the constitutionality of Second Amendment restrictions. If the court believes the Second Amendment meaningfully constrains government, Washington’s ban is impermissible.

Even if the court believes that a ban on an entire class of protected weapons can sometimes be justified, it should conclude that regulations like those in Washington are subject to strict judicial scrutiny: government, if challenged, would have to demonstrate that restrictions serve a compelling state interest, will be effective at attaining the desired goal, and do not unnecessarily compromise Second Amendment rights. That three‐​part standard has considerable teeth, but will not foreclose legitimate gun regulations, such as sensible registration requirements, proficiency testing, instant background checks, bans on massively destructive weapons, and prohibitions on gun ownership by children, mental incompetents, and violent felons.

The court rigorously scrutinizes all regulations that infringe on personal “fundamental” rights — defined as those rights “implicit in the concept of ordered liberty” or “deeply rooted in the nation’s history and traditions.” Express provisions in the Bill of Rights are certainly fundamental, and the right to keep and bear arms — occasionally a matter of life‐​and‐​death significance — is no exception.

If the district’s outright ban on all handguns, in all homes, at all times, for all purposes, is determined by the court to pass muster, it will mean that the Supreme Court intends to rubberstamp just about any regulation that a legislature can dream up — no matter whether the government has offered any justification whatsoever, much less a justification that would survive strict scrutiny. That would, in effect, excise the Second Amendment from the Constitution. A right that cannot be enforced is no right at all.

At root, the Heller case is simple. It’s about self‐​defense: individuals living in a dangerous community who want to protect themselves in their own homes when necessary. The Second Amendment to the Constitution was intended to safeguard that right. Banning handguns outright is unconstitutional.

About the Author