ACSBlog: The Blog of the American Constitution Society

There are few surprised by the Supreme Court’s decision to overturn the District's 30 year-old ban on handguns and its holding that the Second Amendment guarantees an individual’s right to bear arms. But we should be shocked by the majority’s willingness to distort the text and history of the Second Amendment to ignore the considered judgment of the District's local legislature. 

Rarely have so few words engendered so much debate. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Was the opening clause meant, as we believe, to define the reason for, and context in which, the right to bear arms was to be preserved — that is, for use in a state militia? Justice Scalia, writing for the 5-4 majority, rejects the military tenor of the language in both clauses of the Amendment. But, as Justice Stevens points out for the dissent, history belies that view.

While the majority spent much time on British and colonial history, they talked almost not at all of the real world, right now, life and death consequences to the Court’s ruling. I will never forget a holiday spent at the arraignment of a young woman who killed a friend during a game of keep-way. Child’s play turned deadly — one life ended and another forever upended — because there was a loaded gun in her home.

The DC Council recognized these very serious stakes when it decided in the 1970s, in one of the first acts of this Home Rule government, to ban handguns. It reviewed evidence from law enforcement that handguns are uniquely dangerous weapons. They are more likely to be used in suicides, against law enforcement, and fired accidentally by children. And because handguns are easily concealed, they are criminal’s weapons of choice.

The Self-Defense Case for Handguns
The majority brushed this all aside in declaring that handguns are the most popular weapon for self-defense and therefore cannot be banned. Where are the citations for conclusion, which seems plucked from air? How does the Supreme Court substitute its judgment for the District’s legislature? As we wrote in the District’s petition for certiorari, referring to the DC Circuit’s decision:

 “The view of the court is also particularly cold-hearted. It holds that despite the fact that District residents can defend themselves and their homes with rifles and shotguns, the District is powerless to fight murder, assault, and rape by banning the one weapon that is overwhelmingly used to commit them. No other provision of the Bill of Rights even arguably requires a government to tolerate serious physical harm on anything like the scale of the devastation worked by handguns.”

In fact, there is little for the majority to fall back on in making a self-defense case for handguns. There are certainly those who feel safer with a handgun. Though undoubtedly genuine and passionate in their beliefs, they are still dangerously wrong. A handgun in the home does not make its residents more safe, but just the opposite. One news anchor asked me after an interview whether guns weren't like flight insurance — you may never need it, but you feel better having it. I asked him if he'd still buy flight insurance if he knew it increased the risk of a plane crash.

A gun is far, far more likely to be fired accidentally or used against its owner than to repel a home invasion.  It is no small irony that the dissenters in the recent Guantanamo decision, who decried the lives the Court’s decision would cost, evidenced no similar concern for those who will undoubtedly fall victim to handgun violence.

The opponents of the District’s ban on handguns were able to turn this into a case about self-defense. But gun control isn't about either armed militias or armed vigilantes; it's about public safety. It’s about the police officers, victims of domestic violence, and children and young adults who are the most frequent victims of gun violence. Gun right advocates focused for years on redefining courts’ perceptions of guns and gun rights — overcoming the very visible reminders that handguns are far more often used offensively in our schools and on our streets. It is vitally important that we are clear and persuasive in articulating a public safety/ law enforcement message on guns.

The Path Forward
Though a real loss for the District, the Supreme Court’s decision does leave a path forward, both constitutionally and politically. We can continue to pass laws that give police the tools reduce gun violence — gun control measures that are clearly rooted in a law enforcement agenda. This includes requiring background checks for all gun sales. The Brady background check has kept guns out of the hands of 1.5 million people with serious mental illness or felony convictions, but an estimated 40% of gun transactions involve unlicensed sellers whose buyers are not subject to background checks.

A big step would be closing the gun show loophole, which exempts gun show sales from background checks. Governments should follow the lead of Mayor Bloomberg in New York City and take action against the handful of rogue gun dealers that supply the vast majority of crime guns. Almost 60% of crime guns come from 1% of licensed dealers. We should untie the hands of federal and local law enforcement by repealing the Tiahrt Amendment and other similar restrictions. The Tiahrt Amendment bars the federal government from sharing trace data on crime guns with local law enforcement that could help reduce gun trafficking.

The vast majority of the public support the reform measures outlined above. Our job is to make sure that Congress, which over the last two decades has been overwhelmingly hostile to common sense gun laws, stands with the hundreds of mayors, police chiefs, and others who support these public safety measures.

It was generally believed that the key question in Heller would be the standard of review. While consistent with Chief Justice’s Roberts desire to decide cases on the narrowest grounds, the Court’s decision unfortunately leaves cities, states, and the federal government open to a wave of litigation. The Court also failed to give guidance to legislatures that will be evaluating current laws and trying to follow the Court’s ruling while drafting legislation to keep their officers and residents safe. Even without the Court’s help, they must soldier on.