A Well-Regulated Right to Bear Arms

By Erwin Chemerinsky
Wednesday, March 14, 2007

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? The decision by the U.S. Court of Appeals for the D.C. Circuit interpreted the Second Amendment as bestowing on individuals a right to have guns. But even if this reasoning is accepted, and it is very much disputed, the Court of Appeals still should have upheld the law as being a reasonable way of achieving the government's legitimate goal of decreasing gun violence.

There is a major debate among scholars and judges involving two competing views of the Second Amendment. One approach, adopted by the Supreme Court in 1939 and by most federal courts of appeals, sees the Second Amendment as preventing Congress from regulating firearms in a manner that would keep states from adequately protecting themselves.

This "collective rights" approach rejects the idea that the Second Amendment bestows on individuals a right to have guns. The alternative view, adopted by the D.C. Circuit on Friday, sees the Second Amendment as creating a right for individuals to have firearms.

Each approach is consistent with the text of the Second Amendment, and each is supported by strong historical arguments about the original meaning of the provision. The Second Amendment says: "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." Those who take the collective rights approach focus on the initial language of the provision, while those who take the individual rights approach focus on the latter language.

Each side of the debate marshals impressive historical arguments about what "militia" and "keep and bear arms" meant in the late 18th century. In the past few years, two other federal courts of appeals exhaustively reviewed this history, and one determined that the Framers intended the individual rights approach, while the other read history as supporting the collective rights approach.

The assumption in this debate, and one that the D.C. Circuit followed Friday, is that gun control laws are unconstitutional if the individual rights approach is followed. This assumption, though, has no basis in constitutional law. No rights are absolute. Even the First Amendment, which is written in the seemingly absolute language that Congress shall make "no law" abridging freedom of speech or religion, allows government regulation.

Therefore, under the individual rights approach, there still is the question of what types of government regulations are appropriate.

For 70 years the Supreme Court has distinguished among constitutional claims in deciding how closely to scrutinize laws and how much to defer to legislatures. In instances where there is reason to distrust the government, such as for laws discriminating on the basis of race, "strict scrutiny" is used and the government can prevail only if its action is necessary to achieve a compelling purpose.

But where there is little reason to doubt the legislatures' choices, courts give great deference to the legislatures and uphold laws so long as they are reasonably related to a legitimate government purpose. For example, discrimination that is based on characteristics such as age, disability and sexual orientation need to meet only this more relaxed standard. Even rights enumerated in the Constitution, such as property rights, generally receive only this relaxed level of judicial review. For this reason, for 70 years, government regulation of the economy to protect employees and consumers has been upheld in the face of claims that it unduly restricts property rights.

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.

The Supreme Court will probably review the D.C. Circuit decision. Whether the court takes the individual or the collective rights approach, it should uphold the D.C. law and make clear that courts will defer to legislatures in their regulation of firearms.

The writer is a professor of law and political science at Duke University.

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