Robert A. Levy was a driving force behind the landmark 2008 case District of Columbia v. Heller, in which the Supreme Court struck down the District’s gun laws and recognized an individual right to keep and bear arms. Not only was he one of the lawyers on the case, but he also personally funded the litigation. Levy, who is also chairman of the board of the D.C.-based Cato Institute, spoke with Style’s Eva Rodriguez on Thursday. What does the defender of gun rights think of the talk about new gun regulations in the aftermath of the Newtown, Conn., shootings? You might be surprised. Below are edited excerpts.
I can imagine a shop owner in the midst of a riot and he says he needs multiple rounds to protect his store and his family. I can also imagine the multi-victim killings like we had in Newtown, where there’s a reasonable argument that innocent lives might have been saved if these magazines had been banned and if the ban had been effective. So I think if government can show . . . the benefits of banning high-capacity magazines, then I have no doubt that such a ban would survive a court challenge.
There are three problems that occur to me. One is that homemade magazines are easy to assemble; it’s just a box with a spring. The second is there is not any effective way to confiscate maybe 25 million high-capacity magazines that are now in circulation. And third, a significant number of existing firearms are configured for 12- to 19-round magazines. So I think a ban on any size of less than 20 rounds would meet with great, great resistance. All of that said, I don’t share the NRA’s view that we shouldn’t consider a ban on high-capacity magazines. I think a ban on magazines of 20 rounds and above seems to me to be reasonable.
We had an assault weapons ban from 1994 to 2004. The New York Times, after the ban expired, reported that despite dire predictions that the streets would be awash in military-style guns, expiration of the assault weapons ban has not set off a sustained surge in sales or caused any noticeable increase in gun crime. There are, of course, millions of these so-called assault weapons, and they’re used by millions of Americans for all sorts of things, including hunting, self-defense, target shooting, even the Olympics. Criminals use handguns because assault weapons are expensive and they’re difficult to conceal.
Now, [the Supreme Court] said that the Second Amendment would likely pose no barrier to outlawing weapons that are not in common use and are especially dangerous. And we have proof of that because fully automated weapons, like machine guns, have been essentially banned since 1934.
I don’t consider myself an expert on the technical features of firearms, and so I’m not prepared to say exactly which weapons would go on the list and which shouldn’t, but I think experts should be able to come up with a pretty good list — obviously not needed for self-defense, obviously dangerous, not in common use. And that would be the new assault weapons ban.
The NRA and the gun lobby had argued that each new gun regulation was a step down this slippery slope, leading ultimately to confiscation. . . . That clearly is what some radicals among gun controllers had in mind. But this is a new environment now. I think [the Supreme Court’s decisions] have taken the slippery slope argument pretty much off the table because [the court] has now established — for the first time ever — some hard-and-fast rules. There’s some wiggle room in those rules, to be sure. But at least we do know now that there’s an individual right to defend yourself, and a wholesale ban on a type of weapon that does have self-defense utility and that is in common use is not going to be permitted by the Supreme Court.
Criminals don’t register firearms. I mean, what the heck? Why would a guy who’s not deterred by a law against murder be deterred by a law that says he has to register a firearm? It’s only law-abiding citizens who register weapons, so I’m pretty skeptical about the value of registration.
On the other hand, I’m not adamant about resisting it. Again, I think the burden is on government to come up with some evidence [that it improves public safety], and so far they haven’t met that burden.
Survey data suggest that less than 2 percent of guns used by criminals are bought at gun shows and flea markets, and that includes the sales through [federally] licensed dealers at gun shows. The public doesn’t really realize this, but . . . not all sales at gun shows escape background checks. It’s only private sales. If I go to a gun show and sell my weapon to you, then there’s no background check. But if a dealer sells a weapon to you at a gun show, then the same background check has to occur that occurs if he sells it out of a store. And any dealers — retailers, wholesalers and manufacturers — have to be federally licensed. . . . If technology facilitated truly speedy background checks — and by that I mean 24 hours max — and if there was some reasonable assurance that privacy rights weren’t being violated, then I’d have no objection to extending [background checks] to cover private sales at gun shows. It’s not because I’m convinced that they would do any good. But I think it would get us past this particular debate and let us address options that might be more effective, including earlier detection and treatment of mental illness and, frankly, the NRA’s proposal, which I think is a good idea, for armed guards at school.
The one thing that’s pretty clear is that the existing [background information database] is not being provided the information it needs to keep the weapons away from mentally deranged people. Whether that information is so intrusive that it does create civil liberties problems I’m not prepared to say, because I don’t know enough about the subject. But I add, though, that I do think this is not a legitimate function of the federal government. I think this is part of a state’s police power, which includes protecting residents against rights-violating activities, such as the criminal use of firearms.