Transcript

D.C. Handgun Ban

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Sanford Levinson
University of Texas Law Professor
Friday, May 18, 2007; 11:00 AM

University of Texas law professor Sanford Levinson was online Friday, May 18 at 11 a.m. to discuss the Second Amendment and the D.C. handgun ban.

A transcript follows.

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Washington, D.C.: Is the ban not counter intuitive to the push for D.C. statehood? If D.C. were to become a state, would the new state not have to comply with the Second Amendment?

Sanford Levinson: It's not clear what the consequences of statehood would be, since the Second Amendment has never been "incorporated" against the states. That is, the Second Amendment clearly speaks to the powers of the national government, but it is far less clear whether it limits the powers of state governments. Because D.C. is not a state, my own view is that it is currently "covered" by the Second Amendment.

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Bellevue, Wash.: Prof. Levinson:

Based on your experience and knowledge of the Second Amendment, do you see the Supreme Court granting cert if the city appeals, and do you see the court upholding the Silberman ruling?

Sanford Levinson: This is really a guessing game. There are, obviously, nine votes we have to predict. I'd be more than a little surprised if any of the four "moderates" on the Court -- Ginsburg, Breyer, Souter, and Stevens -- would vote to uphold the D.C. Circuit. So that means we have to predict the five "conservatives." I think it's quite likely that Scalia and Thomas would vote to uphold the Circuit, and I think there's some reason to think that Alito might as well. Roberts has no known track record on the Second Amendment. Kennedy, as always, could turn out to be the person in the middle.

As you may know, it takes four votes for the Supreme Court to grant certiorari, and it may be that six of the Justices will be cautious enough to prefer to wait for another day (and to see the results of the next presidential election).

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13th St S.E.: Thank you for doing this chat.

"Well regulated militia". Does this mean what it says or did the framers really think that 200 million people should be able to keep assault rifles in their house. To me the state national guard is a well regulated militia not Joe Bob from Roanoke.

Thanks.

Sanford Levinson: Thank you for participating!

Let's break down "well regulated militia" into its two components. The first is "militia." However odd it sounds to many of us today, I don't think there's much doubt that 17th- and 18th-century political thought viewed the militia as composed of all law-abiding (male) members of the political community. There was a distinction between the "general militia" and the "select militia" precisely on this point. So now we turn to what "well regulated" might mean. One possibility is that a "well regulated militia" is one that is run by the state, which is the image evoked by the "national guard." Another is that the community itself is the regulator, as members of the militia get together on their own and keep up their competence.

It is, of course, an entirely independent question what role history should play in giving present meaning to the Second Amendment. I'm considerably more confident of what history tends to show than I am of the weight it should play for us today. Indeed, I should confess that my general approach to constitutional interpretation is far more "living Constitution" oriented than "originalist." The D.C. Circuit opinion is thoroughly originalist in its orientation.

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Alexandria, Va.: The New York Times published an article last week in which you were named as a "liberal" legal expert who favored the individual rights model of the Second Amendment. The same article claimed that the advocacy of the individual rights model was a fairly recent phenomenon; previously all legal opinions and court decisions had favored the "collective rights" model. My understanding was just the opposite: that the "collective rights" interpretation was a theory born out of the nascent gun-control movement in the 1960s, and that nearly all law journal writings and court opinions prior to that had favored the individual rights model, just like the First, Fourth and Fifth Amendments. True?

Sanford Levinson: I think that an important reality of the Second Amendment is that it tended to be ignored by almost all academics and federal judges for many decades. The last time the Supreme Court has spoken to the issue was in a 1939 case, and the opinion, written by Justice McReynolds, is notably murky. Rightly or wrongly, it has been overwhelmingly cited by subsequent federal judges as endorsing what has come to be called the "collective rights" model. There are no federal court opinions that can be said to offer unequivocal support for the "individual rights" view, though there are some state court opinions. William Van Alstyne has suggested that the current reality of systematic consideration of the Second Amendment might be compared to the systematic consideration of the First Amendment in, say, 1907. We all know that the modern First Amendment is basically created well after World War I. So the Second Amendment, practically speaking, is a work in progress.

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Clifton, Va.: Isn't D.C. facing a big dilemma if they appeal to the Supremes and lose? All anti-gun laws could be ruled unconstitutional,I even the ban on owning machine guns! And it would make the laws in NYC, Detroit and other places unconstitutional too.

Also, this could become a major issue for the 2008 elections and help get out the bubba vote, which may lead to the Republicans winning the presidential elections and getting control of Congress back.

Sanford Levinson: I would be absolutely astonished if the Supreme Court protected an individual right to own machine guns. The D.C. Circuit opinion, whatever one thinks of it, says two things (I believe): a) a de facto prohibition of all ownership of handguns by private individuals is unconstitutional; but b) reasonable regulation of that presumptive constitutional right is permissible. The D.C. case was close to a "perfect case" for proponents of the Second Amendment in that it involved a de facto ban of handguns. Had the District permitted handguns but barred machine guns, I can't imagine that the Circuit Court would have objected.

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Washington, D.C.: Professor, can you clarify the role of militias and how they were staffed in the 18th century versus the national military today? Wasn't the state militia actually the only form of state defense since there was not a permanent national army. Therefore, not having any other form of defense it was only logical to make sure the government (state and federal) not restrict gun ownership, lest the states have no way to defend themselves.

Sanford Levinson: I think the assumption in this question is basically correct. The Amendment also has to be understood against the background of fear of a "standing army," which was viewed by some political theorists as synonymous with tyranny. As a matter of fact, one of the most important things the Constitution does is to allow a standing army, and one explanation for the Second Amendment is that it reinforces the notion that even a standing army can't become the "exclusive" means of defense because a basically civilian militia (i.e., a military body composed of non-military-professionals) is constitutionally protected.

It's also true, of course, that there were no police forces until the 19th century. A major argument that divides the sides is what relevance the rise of professional police forces, charged with protecting the public against crime, should have for interpreting the Second Amendment.

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Washington, D.C.: If the Second Amendment doesn't apply to D.C., does that mean than none of the amendments do? Do we not have the right to freedom of speech? Are we allowed to own slaves?

Sanford Levinson: I don't think there's any doubt that the Bill of Rights applies in toto to the District, and it is clear also that the Thirteenth Amendment, abolishing slavery, applies to the District. Interestingly enough, it's not clear that the Fourteenth Amendment, which bars only "states" from denying equal protection or depriving persons of due process, applies to the District, but the Supreme Court in a companion case to Brown v. Board of Education in 1954 held that the Fifth Amendment, which applies to the national government, invalidated segregated schools in D.C.

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Washington, D.C.: Professor, thanks for your historical description of militia. Can you do the same for arms? What was meant by arms in the 18th century?

Sanford Levinson: I don't know enough to offer any particularly helpful answer to this question. You might want to read Saul Cornell's new book, published by the Oxford U. Press, on the history of the right to bear arms, which is probably the best currently available book on the subject. I don't think there's any reason to think that "arms" had a very esoteric meaning, though.

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Atlanta: In your opinion, does the Second Amendment allow for the right to have a concealed carry in all states and municipalities, or is that a right that can be legislated as it currently is done?

Sanford Levinson: I would be extremely surprised if courts would read the Second Amendment to protect a right to carrying concealed weapons. I'm fairly confident that most would view laws preventing concealed carrying as "reasonable." A number of states, including my own state of Texas, do indeed protect concealed carrying, but that is by legislative decision, not through judicial construction of the Second Amendment (or state constitutional analogues to the Amendment, which exist in most of the states).

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Pittsburgh, Pa.: Was the D.C. law repealed because of the phrase about keeping the gun broken down or locked with a trigger lock ?

I read that that was the failing phrase.

Sanford Levinson: I confess I don't remember the decision with such specificity. I do recall that the D.C. law prohibited having a loaded gun in one's home, and the point was made that this would obviously make it much harder to use the weapon as a mode of self-defense.

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Washington, D.C.: In your essay "The Embarrassing Second Amendment," you quoted Harvard Professor Lawrence Tribe as writing that "the phrase 'well regulated' makes any invocation of the Second Amendment as a restriction on state or local gun control measures extremely problematic."

Has Dr. Tribe changed his views on this?

Sanford Levinson: Yes, Professor Tribe indeed announced his change of view around 2001 or so. He now believes that it does protect some kind of individual right to "keep and bear arms," though (I would argue like the D.C. Circuit itself), he believes that this right is subject to reasonable regulation.

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Clarksburg, Md.: The framers of the Constitution rebelled against tyranny of the State, then in the form of the British monarchy, and wrote a document justifying revolution. Isn't it safe to assume that those that interpret the phrase "for the purposes of a well regulated militia" as meaning that only the National Guard should have firearms are missing the point? How could the Second Amendment be a protection against tyranny if it's interpreted to mean only the State should have firearms?

James Madison made it clear when he said that the Second Amendment would guarantee a standing militia of 500,000 strong, when at the time the population of the colonies was 500,000 people. Arguing over semantics and meaning is a waste of time, the argument is whether or not the Second Amendment is valid in the 21st century, whether or not its quaint and outmoded, and whether or not it poses a greater danger to the general populace than a protector of the populace.

Sanford Levinson: I substantially agree with the statement of the issues. I.e., even if one believes that paragraph one is correct with regard to the origins of the Second Amendment, the central debate is whether the "protection against state tyranny" rationale has become "quaint" in the 21st century.

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Atlanta: Professor,

Since the Constitution does not guarantee personal protection from crime by police or other government agencies, isn't the Second Amendment the only means for a law abiding citizen to protect themselves under the Constitution?

Sanford Levinson: This question raises an extremely interesting point, for it's absolutely correct that the Supreme Court has held that the state is NOT obligated to protect people against crimes by private persons. Such protection as is protected is, according to the Court, a matter of legislative grace rather than a true constitutional "entitlement." As a practical matter, of course, all modern cities do provide police protection, but even if one believes that the police are completely competent and non-discriminatory in their provision of services, there are clearly not enough police to provide "full" protection for people who might feel vulnerable to crime.

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Cleveland Park, Washington, D.C.: Professor Levinson -

You wrote: "However odd it sounds to many of us today, I don't think there's much doubt that 17th- and 18th-century political thought viewed the militia as composed of all law-abiding (male) members of the political community."

In fact, this understanding was incorporated into law (National Militia Act of 1792) wasn't it? Hasn't this understanding been revised by statute (the National Militia Act of 1903)?

Sanford Levinson: I believe this is correct, though I confess that I'm unable to recall the specific language of the 1903 Act. (That's what Google is for :)

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Washington, D.C.: Professor, is it true that if the framers of the constitution wanted to insure ownership of weapons for purposes of self-defense, or pleasure that they could have expressly written so, instead of commingling it with with language regarding the importance of state militias to national defense.

Sanford Levinson: There's no doubt that the Second Amendment could have been more clearly written, especially if the Framers had been more solicitous of 20th and 21st century readers who usually have no appreciation of the specific theoretical contexts of the 18th (and 17th) century debates.

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Washington, D.C.: If the handgun ban is upheld, then the Second Amendment will have been written out of the Constitution, right? State militias have essentially been folded into federal control, so the collective-rights theory, always tenuous, is a dead letter; it amounts to no right at all. If handguns in the home can be banned, then any prohibition on any gun would be permissible, right? What would be left of the Second Amendment?

Sanford Levinson: I think this is a very serious question. I presume that some people would argue that what remains is a right of states to have their own militias, but, as the question notes, the Constitution itself gives Congress the right of ultimate control over state militias.

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Washington, D.C.: Isn't the D.C. requirement, that shotguns be dismantled when stored, an unenforceable provision of the D.C. gun law? Has anyone, who wasn't trying to stage a test case, ever been convicted of improperly storing a shotgun in his/her home in the District of Columbia?

Sanford Levinson: I don't know what the answer is. But a lot of "symbolic laws" are enforced, if at all, only as a result of the "bad luck" of a particular defendant. Think only of laws regulating sexuality.

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Bellevue, Wash.: Back again for a follow-up.

You noted, "As you may know, it takes four votes for the Supreme Court to grant certiorari, and it may be that six of the Justices will be cautious enough to prefer to wait for another day (and to see the results of the next presidential election)."

What does a presidential election have to do with an issue of constitutionality, or its interpretation by the sitting high court?

Thanks for answering the first time. Good discussion!

Sanford Levinson: Judges are quite aware of the political seas within which they swim, and sometimes time their decisions accordingly. One can argue, of course, that this is a corruption of the notion that law should be entirely separated from politics, but, as an empirical matter, I don't think that one can understand American constitutional history without realizing that members of the Court have often been cognizant of political realities (and have sometimes gotten into hot water when they haven't).

For better and worse, the Supreme Court, unlike circuit courts of appeal, has complete control over its own docket, so it is always reasonable to wonder why they choose to take certain cases and ignore others (that many people think are easily as significant as the cases on which they grant review).

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Washington, D.C.: Your remark about "the rise of professional police forces" was meant to be ironic with regard to D.C., wasn't it? That's not an adjective that most people would use to describe them.

Sanford Levinson: As a non-resident of D.C. (though my daughter lives there), I have no relevant knowledge of the professionalism of the D.C. police force. In all seriousness, I do believe that many police forces have become far more professinalized in the past four decades, say. One of my points, though, is that even the most professional and scrupulous police force might still not have enough resources to offer adequate protection to everyone who reasonable feels vulnerable.

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Gainesville, Fla.: The folks who live in the District should have the right to purchase and own any handgun, rifle or shotgun they want as long as it's not a fully automatic weapon. Crime will not jump no matter what the liberals will have you believe since the gang bangers and crooks are already armed.

Sanford Levinson: Even if one agrees with this sentiment, I assume that the right wouldn't extent to ALL "folks who live in the District," i.e., that the D.C. government could restrict the right to law-abiding citizens and even to citizens who have demonstrated some reasonable knowledge of how to handle firearms (along the analogy of driver's licenses).

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Sanford Levinson: Many thanks for all of the questions. I've enjoyed reading them and trying to offer my own responses. It's been like a very good con law class!

sandy levinson

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