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Sure, You Have a Right. It Just Never Applies.

March 21st, 2007 · 2 Comments

Also via Cato-at-Liberty comes a link to this Washington Post op-ed in defense of the D.C. gun ban:

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.

Now, understand: For a law to be “rationally related” to a legitimate state purpose, it’s not necessary that it actually achieve that purpose, let alone achieve it without bringing about various ancillary harms in the process. It’s enough that a sane legislator might reasonably believe it to contribute to the relevant goal. Reducing violence is unambiguously a legitimate state function. And it’s probably never going to be ruled irrational (whether or not it’s true) to think banning all privately-owned guns might further this function, even if the level of gun violence isn’t terribly high to begin with. So we could have a Second Amendment that creates an individual right to bear arms, but this constitutes no barrier to a total ban on firearms. It’s an inert right—a right to jam tomorrow, but never jam today. Allow me to suggest that if your interpretation of a constitutional right implies that its framers were just making meaningless squiggles on parchment for their own amusement, you should try a different interpretation.

Tags: Washington, DC



2 responses so far ↓

  • 1 micahd // Mar 22, 2007 at 5:31 pm

    I saw the paragraph from that op-ed and assumed that it had to be cherry picked. But the whole piece is, if anything, more ignorant of constitutional interpretation than the excerpted paragraph.

    Here is one of my favorite passages …

    “In striking down the District of Columbia’s handgun ban last week, a federal appeals court raised the crucial constitutional question: What should be the degree of judicial deference to government regulation of firearms?”

    Um … no.

    The crucial constitutional question is: what can the degree of government regulation of firearms be given that the constitution establishes a right to bear arms? (Be it individual or collective and, in spite of its doctrinal pedigree, I have to admit that I find the “collective right” line of reasoning rather silly.)

    The appropriate standard here in not what constitutional scholars would call “rational basis test” as the author implies in the paragraph you mention, Julian. The rational basis test only applies to laws that run afoul of no constitutionally guaranteed right or pertain to no suspect (i.e., protected) class of people such as minorities or women.

    There is a legitimate argument for a *compelling* (rather than rational) government interest in limiting the rights of people to bear arms which has both theoretical and empirical components. But this author – thankfully merely a rogue professor rather than the editorial board of the Washington Post – hits on none of them.

    And, in doing so, he does a great disservice to those people (myself not included) who advocate on behalf of the sort of draconian anti-gun laws that the no handgun policy in DC represents.

  • 2 Mike // Mar 26, 2007 at 12:51 pm

    “…there is a strong argument that the regulation of guns should be treated the same as other regulation of property under modern constitutional law.”

    There’s a strong argument, too, that the right to bear arms should be treated the same the right to free speech. Certainly it should be given at least the same respect as the right to have an abortion. But the regulation of property is completely inapt – there is no constitutional provision that bans “infringement” of property rights – only compensation if the property is taken.

    Even that analysis, however, would be an improvement on the deference to gun rights in the court system until recently: Take my gun? Pay for it.

    (Actually, with greater protection, since the former is actually mentioned in the Bill of Rights.)