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Second Amendment Optimism: An Interview

The opinions expressed by columnists are their own and do not necessarily represent the views of

Fans of gun rights and scholarly defenders of the U.S. Constitution alike were left pleased and optimistic by what they heard U.S. Supreme Court justices say March 18 during oral arguments for a case challenging Washington, D.C.'s, sweeping, super-strict gun law. The plaintiff in District of Columbia v. Heller argues that D.C.'s ban -- which essentially makes it illegal for private citizens to own handguns at all or possess rifles that are assembled or unlocked and ready to use -- violates the Second Amendment.

Robert Levy of the Cato Institute agrees. The senior fellow in constitutional studies at the libertarian think tank spent a lot of his own money and five years of legal plotting to make sure Heller -- the first Second Amendment case heard by the Supreme Court since 1939 -- made it to the high court. I talked to Levy March 20 by telephone from his home in Naples, Fla.:

Q: What's your quick description of what District of Columbia v. Heller is all about?

A: It's all about self-defense. It's about six plaintiffs originally -- and now down to one -- who feel at risk in the dangerous community of Washington, D.C., and they want to be able to defend themselves in their own homes. Washington, D.C., law says that they can't do that. There's an outright ban on all functional firearms, in all homes, at all times, for all people. And these folks have both a need to defend themselves and a constitutional right to defend themselves.

Q: You played a very active role in getting this issue -- and this specific case -- to the Supreme Court. Why and how?

A: Well, for about a decade I’ve been the senior fellow in constitutional studies at the Cato Institute. I’ve been interested in a large number of constitutional issues, one of which -- maybe not even the issue I’ve spent the most time on -- is the Second Amendment.

A number of events seemed to come together that suggested that this would be a good time. When I say "this" time, I mean February of 2003. That’s when the case was first filed -- more than five years ago. Those events included an outpouring of scholarship -- from liberals; we’ve always had scholarship from the right -- saying there was an individual right secured by the Second Amendment. There was a court decision down in Texas -- called United States v. Emerson -- that said the same thing. The Justice Department prepared an exhaustive legal memorandum that put the federal government on record in support of an individual right. The City of Washington had the most draconian gun ban in the country and also the most violent statistics in the country -- and the city of Washington is a federal enclave, so we didn’t have to come to grips with a fairly knotty constitutional question, and that is whether the Second Amendment even applies to the states since Washington is not a state. So all of that put together suggested -- plus the complexion of the Supreme Court; it was relatively conservative and might be considered to be favorable to a Second Amendment case; there hadn’t been a Second Amendment case in about 70 years -- that you have the circumstances for a legal challenge.

Q: And that 70-year distance since the last major Second Amendment case is what makes this case so historic and important, obviously?

A: Yes, I think that’s right. Of course, bear in mind that there were 140 years after the Bill of Rights was ratified during which there didn’t seem to be much controversy. So to suggest that there has been this debate going on for 70 years, yes, it’s true. But that’s because the Supreme Court in 1939 sort of created the debate by issuing an opinion that nobody has understood for seven decades.

Q: Before that there was no question the Second Amendment gave the individual person a right to own guns?

A: Not much question about it. There was no resolution of whether or not the Second Amendment applied to the states, so some of the states could have regulations. But the federal government was pretty much constrained from having any serious restrictions on gun ownership because of the Second Amendment.

The first major gun law that was issued was in the 1934 National Firearms Act. That’s what was challenged in the 1939 case, and it was the National Firearms Act which required that certain weapons be registered and required that a tax be paid on them. It was determined that the National Firearms Act was OK; it was constitutional.

Frankly, we wouldn’t dispute that now. We’re talking about a different sort of thing. We’re talking about a ban on all functional firearms, not a tax and not a registration requirement. We’re talking about a restriction on the right to defend yourself.

Q: Based on the oral arguments on Tuesday, a lot of gun-rights advocates are optimistic. Should they be?

A: It’s tough to tell. I’ve been involved in oral arguments where it looks like the justices are leaning in one direction and you wait and you get the opinion and, lo and behold, it goes exactly the opposite way. So I’m very reluctant to get involved in the prediction business. But I do think this: Everybody was concerned about Justice (Anthony) Kennedy because he’s sort of the swing vote on the court. Over and above his questions, Justice Kennedy actually made some statements from the bench that suggested that he believed it was an individual right. So I’m pretty comfortable that we’re going to prevail on that question -- whether or not there’s an individual right or whether it’s limited to militia service. I think we’re going to win that question. The other question, though -- since you can win that battle and lose the war -- is what kinds of regulations are going to be permitted. That’s a much closer call and frankly I’d just as soon wait for the opinion before I venture a guess.

Q: What will the decision turn on -- support for the original intent of the Second Amendment that reinforces what it said all along?

A: The first of the two questions that I mentioned -- namely, whether there is an individual or a collective right, an individual right versus a militia-based right -- will hinge on the items that you mentioned: The text of the Constitution, the intent of the Framers, the history of what was going on at the time and shortly thereafter, the overall structure of the Constitution and how this amendment relates to all the other provisions of the Constitution, and the general tenor of the Constitution; that is, what was it intended to do with respect to individual rights. All that will be taken into account in this first question.

In the second question -- what kinds of regulations will be permitted? -- we may get into some policy questions. Do gun regulations work? What kinds of gun regulations go further than necessary to accomplish the ends that are sought to be accomplished? I think this is going to depend on how rigorously the court intends to review what is passed by legislatures.

Legislatures generally get their way in this country. That’s what democracy is all about. But it’s not an absolute. They can’t, for example, pass a law that says you’re not allowed to practice Catholicism, or you’re not allowed to criticize the governor, or you can’t speak freely. Those kinds of regulations are not permitted.

Our view is that a regulation that says you can’t have any functional firearm in your home is like a regulation that says you can’t speak freely -- it violates an expressed provision in the Bill of Rights. If the courts are fairly rigorous in their review of these regulations, then certainly the D.C. gun ban and probably some other regulations will be invalidated. If the court is just a rubber stamp and generally gives the legislature carte blanche to do whatever it wants, now that’s quite a different story.

Q: If things go the way you’d like them to go, how wide of an impact will the decision have on gun laws around the United States?

A: First, we would consider it a victory to get a two-part decision. The first part is that this is an individual right not limited to militia service and the second part is that the D.C. gun ban is unconstitutional. If we get that two-part decision, then we will have considered it a tremendous victory. Now the court could go further. It could establish what standard of review it would impose on new gun regulations that come before it. This was the issue that I was just talking about: Is it going to be rigorous scrutiny where it requires the government to really justify its regulations or is it going to be a rubber stamp?

Q: So it will scare off a lot of bad legislation?

A: That’s quite possible. We would hope that the court would strictly scrutinize any regulations, because the right to keep and bear arms is part of the Bill of Rights. It’s a fundamental right. It occasionally has life or death significance to be able to defend yourself. And those kinds of rights ought to be rigorously scrutinized when government intends to compromise or truncate the right, just as we do in the case of speech and religion.

But the court may not go that far. It may simply go only so far as to say the D.C. gun ban just can’t pass muster and it is unconstitutional.

As far as implications outside D.C., two things are going to have to happen. One of which is to flesh out this skeleton about which regulations can be permitted and which can not. The second is a question of whether or not the Second Amendment even applies to states. That has not been resolved by the courts. It has been resolved with respect to almost all of the rest of the Bill of Rights. The courts have decided that almost all of the Bill of Rights do apply. If the states violate your right to free speech, religion, press, etc., you can seek federal redress under the U.S. Constitution. But that issue hasn’t been resolved with respect to the Second Amendment and it probably will not be resolved in this case, because D.C. is not a state.

Q: What’s the next big Second Amendment issue you’d like to see the Supreme Court settle in a definitive way?

A: Assuming that we win this case, I think the next big one we’d like to see is what goes under the name of “the incorporation issue.” That is, whether the Second Amendment is “incorporated,” via the 14th Amendment, to apply to the states. You’re likely to see that kind of litigation in a place like Chicago or New York or somewhere where there is really some pretty onerous gun regulations, but it is in a state or local context, not a federal enclave like the District of Colombia.

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