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Thursday, June 26, at 2 p.m. ET

Supreme Court Decision on D.C. Handgun Ban

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Sanford Levinson
University of Texas Law Professor
Thursday, June 26, 2008; 2:00 PM

University of Texas law professor Sanford Levinson will be online Thursday, June 25 at 2 p.m. to discuss the Supreme Court's ruling in the case of District of Columbia v. Heller and its impact on the D.C. handgun ban.

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A transcript follows.

Professor Levinson is the author of four books, including "Constitutional Faith" and "Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It)." He also contributes to the blog Balkinization.

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Atlanta: Do you think that the Supreme Court ruling will have an effect on the 1996 Lautenberg Amendment, or if the the law will be more aggressively challenged now?

Sanford Levinson: My general reply to all such questions is to quote Zhao en-Lai's famous answer to being asked about the consequences of the French Revolution: "It's too early to tell." One can easily predict that there will be more litigation in the future, with lawyers trying to mine Justice Scalia's decision for all it's worth (and then some). But implementation will be in the hands of state and federal judges, who will find remarkably little guidance in today's opinion for anything other than extremely rare absolute prohibitions like the DC ordinance. Furthermore, even if the Supreme Court takes another Second Amendment case in, say, two or three years, who knows who will be on the Court then? One might easily predict that McCain and Obama would appoint somewhat different judges, to both the Supreme Court and to what the Constitution calls the "inferior" federal courts (who, in many ways, are more important than the Supreme Court).

So my ultimate answer is don't trust anyone (including, maybe, myself) who confidently opines on the future consequences of today's decision.

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Poplar Bluff, Mo: Thanks for taking questions. Considering the composition of the Court which is pretty much split four to four with Justice Kennedy being the swing vote, do you see another challenge to the Second Amendment if a President Obama is able to appoint two or more justices to the Court?

Sanford Levinson: My own political view is that the last thing Obama would want to do is to appoint someone who would predictably join the dissenting opinion, since it would only contribute to the continuation of the phenomenon of "Reagan Republicans." I gather he has already issued a statement noting his support for the Second Amendment (whatever precisely that means). I assume that Obama appointees would uphold more gun regulations than would McCain appointees, but, at the end of the day, the differences might not be all that great. Scalia went out of his way to suggest that most existing federal regulations are in no danger. And the absolute prohibition of the DC ordinance is rare, I believe.

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Bethesda, MD: I don't really have an opinion one way or the other on the gun ban ruling, but I am bothered when I hear something in the vein of "D.C. citizens need the right to protect themselves." This was a handgun ban, correct? Washington residents still could own a rifle or shotgun big enough to blow the living room into the front yard, if they so desired.

Sanford Levinson: I'm not sure this is right, but I will leave it to someone who knows more about the specifics of DC law to provide the correct answer.

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Rancho Santa Fe, Calif: Justice Stevens complained that the majority "would have us believe that over 200 years ago the Framers made a choice to limit the tools available to elected officials wishing to regulate the civilian uses of weapons." Is that not exactly what the Constitution is intended to do? To put limits on the actions of officials, so as to protect the rights of the people?

Sanford Levinson: I agree. I think that Justice Stevens's opinion is really quite awful in much of its rhetoric, and this is a good example.

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Rockville, MD: Professor,

I still have not seen an explanation that makes sense. "Hand guns" cannot be banned, but "machine guns" can. On what basis is this differentiation made? If the second amendment is referring to private citizens, then how can the government restrict these "arms?" Will every type of gun have to be reviewed by the SCOUS in order to determine what is consitutional?

Sanford Levinson: I think it boils down to a kind of collective common sense: i.e., handguns are less dangerous than machine guns. Most people would not plausibly defend their purchase of a machine gun as a way of protecting themselves against a burglar, etc. Ditto bazookas and nuclear weapons, other examples that commonly come up in discussions of the limits of a "right to bear arms."

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Washington, DC: What is the conventional wisdom among legal observers regarding the effect, if any, Acting AG Nickles's decision to replace the leadership of the District's legal team had on the outcome of the case?

Sanford Levinson: I'm not competent to answer this question.

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San Bernardino, CA: as a former DC police officer, how will this ruling effect HR 218?

Sanford Levinson: I'm not familiar with the specific language of the bill.

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Washington, D.C.: Simple question - So does this mean I can legally purchase a gun this weekend to protect my home and family in DC? What's the practical outcome?

Sanford Levinson: It is undoubtedly legitimate for DC to require that you not be a convicted felon, mentally ill, a child, etc. There's no reason to believe that those kinds of regulations are in any danger. I assume, incidentally, that there are few, if any, gun shops in DC. So the real question is whether you now have a constitutional right to purchase the gun in Virginia and bring it back to your home. I think the answer is probably yes.

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Betehsda, MD: Can you address the Liberal academics, et al, who've sort-of said the ending of the ban was inevitable? There reasoning being that you can't pick and choose which bill of rights amendment you want to vigorously enforce, and which you can ignore, and let be chipped away.

Sanford Levinson: Since I'm one of those "liberal academics," let me say that I published an op-ed in February expressing the hope that the "liberals" on the Court would accept the very able and well-argued position of the Solicitor General, in behalf of the Bush Administration, that accepted the existence of an individual right to bear arms under the Second Amendment.

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Tampa , Fl: I'm curious, utilizing this ruling, how any private or public institutions (such as schools or airlines) can legally ban handguns. How is this different then D.C. trying to ban handguns? The justices acknowledge that handguns can be legally legislated, but not outright banned. Also, certain weapons are already banned to private citizens (to use an extreme example - nuclear weapons), so how are handguns different? Thanks!

Sanford Levinson: It would be extremely easy to distinguish (and persuade a judge to accept the distinction between) a private home and an airplane or public school. Heller deals with an extreme ordinance, and, as I suggested earlier, we really have no idea at this point whether it will, in the future, be given a broad or a restricted reading.

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Arlington, Va.: Professor, why did the Court decide to take on this issue this year? It has been hotly debated for decades. Was it simply that the stars (read: justices) aligned perfectly to "clarify" the meaning of the Second Amendment?

Sanford Levinson: To some extent, the case was "forced" on the Supreme Court by the decision of the DC Court of Appeals invalidating the DC ordinance, coupled, all importantly, with the controversial decision of the District itself to appeal (against the wishes of a number of gun-control advocates, who rightly believed that this was the worst possible case to bring to the Supreme Court, if one wanted a pro-regulation decision). But one also has to explain why at least four justices were willing to grant review. Until we have access to their private papers, or they sit for interviews, we really won't know. It is obviously an interesting and important constitutional issue that the Court had ducked for many years. It's also an issue with obvious political ramifications. But I can't read the Justices' minds.

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Arlington, VA: Is there anything in this opinion that suggests that if Obama takes the White House and attempts to reinstate the "assault weapons ban" that the ban could successfully be challenged as unreasonable?

Sanford Levinson: I'd be surprised if "assault weapons" would get the necessary fifth vote, but, as suggested earlier, the best answer is, who knows. One might ask if a given district judge, or a three-judge panel of a federal court of appeals, would find assault weapons to be protected. That's certainly thinkable, since there are lots of different views represented in the federal judiciary. But it's equally (and probably more) thinkable that most federal judges would uphold bans on assault weapons, and it's hard to see the Supreme Court intervening if such bans are upheld (on grounds that "assault weapons" are just different from hand guns.

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Charleston, S.C.: Mr. Levinson,

Thanks for taking questions. What is your opinion on the media coverage of Supreme Court decisions? It is always framed as block of "conservatives" versus a block of "liberals" with one or two dissenters. Relating these terms to constitutional interpretation is inaccurate at best. They have distinctly different meaning than in the political realm. I can be against Roe vs. Wade but still want to keep abortion legal through the legislative process, for instance. Do you agree with this general assessment of the media and do you think anything can be done about it?

Sanford Levinson: I think there are a lot of problems with media coverage, though I also want to say that there is some excellent coverage as well. As Linda Greenhouse prepares to leave the New York Times after almost 30 years covering the Court, it's worth saluting her for her consistently fair-minded and decidedly unsimplisitc coverage. I've found the Washington Post (thank goodness) and USA Today (among others) also fairminded and illuminating. Not surprisingly, they are able to hire both smart and very well-trained people who can capture the nuances. Other newspapers and, even more to the point, talk radio shows are often deficient in that regard. Worst, obviously, is talk radio or cable TV, which specialize in people shouting at each other.

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Menomonie, WI:

At the time of the drafting of the Constitution, there was no such thing as a standing military, as we have today. The roughest and toughest people were rounded up to fight in groups, militias. This is what the framers meant. This is not "rhetoric" but history.

It is ironic. Conservatives decry activist courts, but this is exactly what the SC has become recently. From appointing Bush to the Presidency to deliberately fitting the 2nd Amendment to their own views to reducing the Valdez payements to $15,000 per victim to changing the laws of domestic violence, the latter three reported in the Washington Post.

The voters of DC voted to ban the handguns. So much for Democracy...

Sanford Levinson: I agree with you that the current Court is remarkably activist. But surely Justice Scalia was right, rhetorically, in reminding us that one purpose of writing rights into the Constitution was to protect them against (easy) majority overrule.

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Princeton, NJ: Well, I supose these questions are inevitible, but here goes.

If the framers want to insure the right of each person to bear arms, why didn't they use th perfectly clear word "persons"?

If the framers did not want the right to only apply to militias, why did they confuse the issue with the first clause?

Do you think the framers meant the word "arms" to refer to a Heckler and Koch MP5 or a Kentucky long rifle?

Sanford Levinson: I agree that the Second Amendment is not a model of perfect drafting. But it seems to me that an essential weakness of both the Scalia and Stevens opinions is the assumption that the Second Amendment means exactly what it meant in 1791 (and, of course, they completely disagree on what that meaning is). I think that one of the ironies in approaching a case like Heller is that Scalia, for his own ideological reasons, can't admit that the interpretation of the Second Amendment, like all other parts of the Bill of Rights, had changed over the years, and that it took on a far more "individualist" reading during the 19th century than it may have had at the time of the Constitution. He recognizes that abolitionists and persons concerned about the welfare of newly freed slaves supported a very strong, non-militia-related right to bear arms, but he can't concede that these opinions are relevant even if people in 1791 (who, to put it mildly, weren't concerned with rights of emancipated slaves) might have had a more militia-related view.

I think the Second Amendment will be read to protect those specific arms that the general population finds sensible to protect (e.g., handguns and not machine guns). A judicial nominee who had declared in some article or speech that the Amendment protects bazookas or "dirty bombs" would not be confirmed by the Senate, at least at present.

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State College, PA: While I am very glad the SC ruled in favor of Heller and against DC, I am dismayed that the ruling was only 5-4. As you point out, completely different respect has been given to the 1st and 2nd amendments in terms of who they protect and how any restrictions must be justified. It is completely illogical to say the 1st and 4th amendments pertain to "the people" while the 2nd pertains to "the state".

In any event, I must take issue with your distinction between having the means to self defense in your home vs. in school or other public places. Having the right to keep and bear arms means just that - the right to have and carry on your person. To me, that means outside the home as well as within.

As a person with a carry permit in my home state of Pennsylvania, I am unable to legally carry my handgun into neighboring and nearby states such as NY, NJ, MD, OH and DC. Do you think this ruling will open the door to forcing states to recognize other states' carry permits similar to how all states recognize each other's drivers licenses?

Sanford Levinson: If the question is what do I predict that federal courts will do with regard to interstate recognition of concealed carry laws, my prediction is that they will treat this as a federalism issue and say, in effect, that Texas' decision to allow concealed weapons is not binding on New Jersey, which has chosen not to do that. (Think of this in the context of the gay marriage debate, where there is wide agreement, in part because of DOMA, that Texas will not have to recognize California marriages. I personally regret this, but it's certainly "the law" right now. I think the same is, and will continue to be, true with regard to allowing quite different regimes of gun control, at least so long as they're not flatly prohibitory, as was the case in DC.

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Rockville, MD: It amazes me that Justice Stevens can say, "Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution."

There's every indication of exactly that. If you read the various states' bills of rights that were the source of the Bill of Rights, if you read the earlier versions of the Second Amendment, it's crystal clear.

One can certainly argue some things about this, but is that really one of them?

Sanford Levinson: I've already indicated that I'm no admirer of Justice Stevens's opinion in this case, though I generally do admire him.

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Riverside, California: If the Court rules against personal gun ownership; what if any consequences will current owners of personal weapons face? Will they be "grandfathered" in to any decision? Will there be a "grace period" where non-gun owners can purchase a weapon for home safety?

Sanford Levinson: I'm not sure how this would play itself out. One would have to know far more specifics.

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Denver, CO: Does this decision mean that the 2nd amendment has been "incorporated" and applies to the states? Is there any significance to the fact that this case arose out of the District of Columbia and not a state?

Sanford Levinson: Scalia's opinion explicitly finessed this question. I suspect that the Second Amendment will ultimately be incorporated, at least if the current majority stays in control. But, as indicated in earlier answers, who knows who will be on the Court when it finally addresses incorporation?

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Philadelphia, Pa.: If I own a gun legally registered in Pennsylvania and I move to the District of Columbia, am I required to register that gun anywhere and what information am I to provide?

Sanford Levinson: If you move to another state, as a general matter you have to follow its laws, as is the case with, say, registering automobiles. I'm not aware that DC has a gun "registration" law, though I'm not really sure.

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Gainesville, Fla.: Machine guns are not banned, but you have to have a Class III BATF permit to own one. Most folks don't wish to go through the $10,000 and hassle. But a citizen can own one.

Sanford Levinson: I stand corrected.

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Baltimore, MD: Concerning your books on the Constitution, how much of the framers' 'original intent' has been lost?

Sanford Levinson: This would take us far afield, but my own view is that "original intent" should be of interest only to historians and should not be determinative in deciding what the Constitution means in an extraordinarily different world from that of 1787.

On another matter entirely, I also believe, as I have argued in my book Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It), that the most important parts of the Constitution are the ones that are never litigated and that many of them are dysfunctional in the 21st century. It will take more than "new leadershiop" and a commitment to "change" to correct the pathologies of the American political system, at least some of which are constitutionally induced.

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NW DC : Here is what is going to be lost in this debate and subsequent ruling: This isnt about handguns. This isnt about the right to bear arms. This isnt about the statistics that both sides use to make their arguments.

Its about the right to self-govern. No matter how you feel about handguns you cannot deny the fact that the overwhelming majority of citizens in DC appose guns. They elected lawmakers to pass legislation to reflect those opinions. It doesnt matter if the law was wrong or if the people were all delusional. The people made a clear decision and that is democracy at its finest.

Today, the supreme court took a small piece of my democracy and I am angry about it.

Sanford Levinson: As noted earlier, I think that there is an inbuilt tension between "constitutionalism" as such and "democracy." I'm curious if you would support a flat-out parliamentary system of the kind that Great Britain has, where there were (prior to enmeshment with Europe) no real constraints on what parliamentary majorities could do.

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Houston: While a 5-4 Supreme Court decision is still good law, do you think the narrowness of the vote will or should encourage local governments in pursuing non-absolute ban gun control initiatives?

Sanford Levinson: I suspect that today's decision will have relatively little impact on local decisions, so long as they don't take the form of absolute prohibitions.

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DC: So what does this ruling mean for the gun restrictions in NYC and San Francisco -- which are not nearly as tough as DC's complete ban? Will we see more challenges of those laws as a result of this ruling? Or, do you think the several references in the majority opinion to the limits that can be placed on the right to keep and bear arms will insulate the less-restrictive gun control measures from legal challenges?

Sanford Levinson:1. We will see more challenges.

2. There's no telling, at this time, how they will turn out. (This is a good time to go into "Second Amendment law" :)

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Seattle, WA: I'm seeing confusing reads that while this decision does strike down the DC Handgun Ban, there are still other restrictions (felons, mentally ill, etc.) that Justice Scalia said may still be retained by the states. Where is the dividing line here?

Sanford Levinson: The dividing line will ultimately be worked out by judges deciding lots of concrete cases. Heller is simply the first step in a many-year (and many-case) process, perhaps like Brown v. Board of Education, which remains in many ways murky 54 years after its decision.

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13th St. S.E. D.C.: Can the district just make the permitting process as cumbersome and lengthy as possible? Maybe a 16 month wait plus you have to be able to hold your breath for 12 minutes, something along those lines.

Thanks for doing the chat.

Sanford Levinson: I think that such onerous requirements would correctly be recognized as "bad faith," but, again, it ultimtely depends on the individual judges who are deciding the cases.

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Richardson, Tex.: Are there any gun-related cases scheduled for next term (October '08) and what do they deal with?

Sanford Levinson: I know of no gun-related cases on the docket for next year, and I would be extremely surprised if the Court took a case in the next several years. It will probably be a lot like the affirmative action issue, where the Court, every few years, takes a case and then "decides" it with a murky 5-4 opinion that leaves people more confused than ever.

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Seattle, WA: First, let me say that Scalia's opinion was, for him, surprisingly narrow.

Second, my question is: Is the opinion itself only that DC's absolute ban is unconstitutional but that this case doesn't deal with specific tests or level of scrutiny with regards to restrictions?

Sanford Levinson: It is really quite remarkable that Scalia didn't both to address the "standard of scrutiny." All we can really say with confidence is that the prohibitory DC ordinance went to far under any (Scalian) theory of the Second Amendment, and that is that.

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Princeton, N.J.: Do you the states (and D.C.) will be allowed to regulate gun ownership in a similar fashion to the regulation of driving? Can they go even further and require the applicant show a definite need?

Sanford Levinson: It's an interesting question about the showing of "definite need." I suspect that the current majority would be very dubious of laws that found only relatively few people to demonstrate such a need, given the general emphasis on self-defense in the home. (Would homeless people have a right to have handguns?)

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Jerusalem, Israel: Does the losing side (DC) have to pay any of the costs of the winning side (Heller)? This must have been a very expensive case for Heller et. al to mount.

Sanford Levinson: This is an interesting question. I'd be quite surprised, given the general American practice that each side bears its own costs. But I don't know for certain.

This is, incidentally, a relatively inexpensive case in the sense that the basic issues are almost entirely legal, as against having to put on a lot of factual evidence.

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2L: So are the Con Law professors writing the next edition to their casebooks?

Sanford Levinson: Our own casebook, Processes of Constitutional Decisionmaking, pays real attention to the Second Amendment, and I'm sure that we'll take due notice of Heller!

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Washington, DC: Prof. Levinson thank you for taking questions (I'm also a big fan of Balkinization). I have not read the decision, but I am curious as to what is the boundary of gun ownership and whether the majority opinion has defined one. The 2nd Amendment does not specify any particular weapons, only the right to bear "arms" which could include a grenade launcher. Do you think this decision will alter the landscape on the types of "arms" citizens can bear?

Sanford Levinson: Again, I think that the answer will come out in many cases in the future, and there's just no way now to predict what the results will be.

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Pittsburgh: In the wake of Va. Tech, Northern Illinois U., etc., how long before the Supreme Court allows students, faculty and staff with a "carry" permit to bring their gun onto a public university campus?

Sanford Levinson: I'd be more than a bit surprised if any federal courts were to uphold such a right. But, again, who knows who will be the judges in the future?

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Baltimore, MD: Do you have any idea why no gun-control advocates have ever undertaken a serious attempt to pursue a Constitutional amendment to modify, clarify, or overturn the Second Amendment? If, as they claim, the Constitution is open to interpretation, it's a different era now than the 1700's, and they feel they have the popular will of the people behind them, why not just stop tinkering with the little laws and go after the big one?

Sanford Levinson: The quick answer is that any proposal to eliminate the Second Amendment would surely fail (and would bring political death to its proponents).

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