Promises Breached

February 14, 2008 • Commentary
This article appeared in the Washington Times on February 14, 2008.

If you think the District of Columbia’s ban on all functional firearms in all homes is a reasonable regulation under the Second Amendment, you’ll love the friend‐​of‐​the‐​court brief filed by the Bush administration in D.C. v. Heller, now before the Supreme Court.

The Department of Justice’s (DOJ) previously stated position is that the Second Amendment secures a right of individuals not restricted to militia service. But astonishingly, the Justice Department now recommends an elastic standard for determining whether a handgun ban is reasonable. According to the DOJ, the courts should consider the nature and functional adequacy of available alternatives. That may sound sensible at first blush, but it could be fatal to the Heller litigation.

Here’s the rub: The Justice Department says the Court of Appeals ruling that overturned the D.C. ban might cast doubt on the constitutionality of existing federal legislation, including machine‐​gun regulations. So the administration urged that Heller be returned to the lower courts for appropriate fact‐​finding to determine whether rifles and shotguns in the home, as permitted by the D.C. Code, are an adequate substitute for handguns.

That came as quite a shock to those of us who believed the administration’s professed fealty to gunowners’ rights. What we got instead was a recommendation that could be the death knell for the only Second Amendment case to reach the Supreme Court in nearly 70 years.

Rather than a foursquare pronouncement that the D.C. handgun ban is unreasonable by any standard, the Justice Department has essentially endorsed years of depositions and expert testimony, and a rerun before a less hospitable Supreme Court.

In effect, a conservative administration has thrown a lifeline to gun controllers. Following the DOJ blueprint, they can pay lip service to an individual right while simultaneously stripping it of any real meaning. After all, if the D.C. ban can survive judicial scrutiny, it is difficult to imagine a regulation that would not.

The proper standard of review under the Second Amendment is what the courts have termed strict scrutiny. Government must justify its restrictions by showing that they are narrowly tailored to satisfy a compelling governmental interest. That’s a tough test, but not fatal. Traditionally, the court has strictly scrutinized all regulations that infringe on fundamental rights deeply rooted in the nation’s history and traditions. Virtually all of the Bill of Rights qualifies, and the right to keep and bear arms is no exception.

In fact, the Court of Appeals did not suggest that any federal gun regulations (including those on machine guns) are unconstitutional. Moreover, under the Supreme Court’s 1939 precedent, U.S. v. Miller, machine guns are not protected by the Second Amendment without showing that they are in common use by civilians.

Even if the Supreme Court were to dictate a new standard of review, remanding the case to the lower courts is not necessary. The court has all the facts it needs to determine whether D.C. regulations are constitutional. The D.C. government could have, but did not, object to the existing factual record.

Under D.C. law, rifles and shotguns in the home must remain unloaded and either disassembled or trigger‐​locked. They have no utility for self defense. D.C. has argued, with the DOJ’s support, that an implicit self‐​defense exception can be read into the law. Yet the city knew how to craft such an exception — for example, functional firearms may be kept at a business — but did not do so. Furthermore, D.C. residents have no way to determine when an implicit exception would become operative. Would it be triggered by report of an escaped convict? Or the sound of a broken window? Or must a homeowner wait to load his weapon until an armed intruder has threatened his life?

Finally, the range and power of a rifle, and the pellet‐​spread of a shotgun, pose practical problems for self defense within the home. And physically weaker or disabled persons might be unable to wield anything other than a handgun. More important, individuals protected by the Second Amendment should not have to forego their preferred means of self defense with an ordinary weapon used since the settlement of North America.

Supporters of the Constitution can only hope that the Supreme Court will embrace an individual‐​rights view of the Second Amendment while rejecting the notion that legislatures can treat the amendment as if it did not exist. Regrettably, the Bush administration — supposed proponent of gun rights and devotee of the Constitution — has added one more breach of promise to its growing list.

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