Steve Chapman

That's not simply the view of liberal academics and anti-gun groups. It's also the view of many distinguished conservative legal experts. I called two, Eugene Kontorovich of Northwestern University law school and Eugene Volokh of UCLA law school. Though they do not concur on all particulars, they agree that many common ideas would likely pass constitutional muster.

The most popular idea at the moment is expanding federal background checks to include all private sales. "I think the courts will say it's permissible," Volokh told me. "No problem, assuming the criteria are legitimate," Kontorovich said. The reason: It's a minimal obligation that does not substantially interfere with a person's right to obtain a gun for self-defense.

An assault weapons ban? Volokh suspects this law would be upheld mainly because it's so ineffectual. Outlawing certain guns that might be used for self-defense is probably OK because many other virtually identical weapons would remain legal.

Kontorovich thinks a limit on the size of magazines would be struck down because it could inhibit an individual's ability to stop multiple attackers. "Limiting magazine capacity is like saying a print magazine could be only 32 pages," he says. What would not be allowed in the context of press freedom should not be allowed in the context of gun rights, he says.

Surprisingly, both think the Second Amendment would allow some laws that are far more ambitious. A law mandating the mere registration of all guns, says Volokh, would probably be seen as no more objectionable than an ordinance requiring a permit for a parade.

Requiring a license to buy a gun or ammunition (as Illinois does), Kontorovich believes, would be "relatively unproblematic" as long as the goal is not to discourage such purchases. Neither regulation would deprive ordinary people of their right to obtain guns for protection, which is the core of the Second Amendment.

In practice, the Second Amendment allows many things -- and many of the things it forbids could never be passed anyway. So gun-rights supporters, a group that includes me, had better focus on explaining why the great majority of gun control ideas won't work. The Constitution won't save us from all bad ideas. It's not supposed to.


Steve Chapman

Steve Chapman is a columnist and editorial writer for the Chicago Tribune.
 

 
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