JURIST - Forum: Middle Ground: The Supreme Court's Opportunity in DC v. Heller

JURIST Guest Columnist Allen Rostron of the University of Missouri-Kansas City School of Law says that by approaching the District of Columbia v. Heller case in a spirit of conciliation and compromise rather than extremism, the Court can make its ruling on the interpretation of the Second Amendment a victory for everyone...

In a few months, the U.S. Supreme Court will issue the most important decision it has ever made about the Second Amendment. Who will win? If the Court wisely heads for the sensible middle ground, everybody will win.

The last time the Court made a significant pronouncement about the meaning of the right “to keep and bear arms” was in United States v. Miller (1939), a cryptic opinion which raised more questions than it answered. After avoiding the issue for nearly seventy years, the Court is finally poised to shed new light on the Second Amendment’s meaning in District of Columbia v. Heller. That case concerns the constitutionality of D.C. laws that essentially ban handguns and require other firearms, such as rifles and shotguns, to be kept unloaded and disassembled or bound by a trigger lock or similar device while stored in gun owners’ homes.

Since the Court heard oral argument in the Heller case on March 18, gun control supporters and opponents alike have been busy scrutinizing the justices’ questions and remarks for clues to how they will rule.

Some press coverage of the case has had an unfortunate tendency to oversimplify the legal issues, suggesting that the key question is whether the Court will decide that the Second Amendment protects an “individual right” as opposed to a “state right.” In fact, the District of Columbia does not deny that the Second Amendment protects a right that belongs to individuals, so that point is not even disputed in the case.

Instead, the real question that has been hotly debated for several decades is the scope or breadth of that right. Is it a right that applies only in connection with public, organized, military activity? Or is it a right that applies more broadly to self-defense and other private uses of guns?

Thousands of pages of law journals, books, and briefs have been filled with arguments about that question over the years. The result essentially has been an unsatisfying draw. There is ample material to support both sides of the debate, whether one looks at the constitutional text, the historical record surrounding its adoption, the underlying concerns that inspired the provision, or its origins in English legal history.

Reading the endless stream of writing on this question, both as a lawyer for a gun control organization and then as a law professor, convinced me that there simply is no clear “correct” answer to the question of how broadly the Second Amendment should reach. The meaning of the Amendment is in the eye of the beholder, with both sides equally and sincerely able to find what they want to see.

I am convinced that if we could go back in time and ask the Framers about the scope of the Amendment, we would hear a wide range of different views. Military use of guns was the overwhelming focus of the discussion for those who drafted and adopted the Amendment. But did they also expect it to cover other uses of guns? Surely some did, and some did not, and most probably never thought about it one way or the other. To say that we can look back now and determine what was the majority view, on an issue that was clearly not the center of attention, is to pretend that we know more than we really do.

No matter how much of a genuine toss-up the issue may be, the Supreme Court probably cannot avoid picking one side or the other. The justices’ statements at the oral argument, as well as their previous comments and general ideological leanings, strongly suggest that at least five of them will endorse the view that the Second Amendment extends broadly to reach more than just military activities.

Rather than resolving the case, that will merely lead to the most crucial question of all. How strong is the right protected by the Second Amendment? In other words, what level of scrutiny or review should be applied to decide the constitutionality of the host of federal, state, and local gun laws in force today?

The District of Columbia argues that laws should be upheld if they represent “reasonable restrictions.” If the Supreme Court agrees, it will be supported by an overwhelming consensus that already exists at the state constitutional level. Adam Winkler, a professor of constitutional law at UCLA, has done magnificent work showing that there has long been widespread agreement in state courts across the country on the test that should be used in gun cases. Forty-two states have constitutional provisions that give individuals a right to have guns for non-military activities. In every instance, courts have held that this right protects people from being completely disarmed, but gives governments wide room to impose reasonable regulations on guns.

Heller, and amici like the National Rifle Association, urge the Court to apply strict scrutiny. That would be an unprecedented and enormous mistake. None of the lower federal or state courts that have recognized a broad individual right to guns has concluded that strict scrutiny should apply. Strict scrutiny would lead to a crushing wave of constitutional challenges to every firearm law in the nation and risk invalidation of even the most reasonable, common sense restrictions on guns.

If the Court agrees with Heller that the Second Amendment protects a broad individual right to have guns for non-military purposes, but also concludes that the right is subject to reasonable regulations, the Court will have made a decision that both sides truly could call a victory. In particular, gun owners would be reassured that they are protected by a constitutional right. They could stop being afraid that every gun regulation, no matter how modest, will lead the country down a “slippery slope” to bans and confiscations of all guns.

The ultimate fate of the statutes at issue in the District of Columbia v. Heller case – D.C.’s handgun ban and gun storage requirements – matter much less than the crucial question of what test or standard of scrutiny comes out of the Court’s decision and applies in future cases. Indeed, if the Court really wants to emphasize that it is coming down squarely in the middle on this often polarizing subject, it could strike down one part of the D.C. law and uphold the other. Chief Justice John Roberts gave tantalizing hints during oral arguments that he might support such a compromise, suggesting several times that he could not regard a complete ban on handguns as reasonable, but also that he might be more inclined to uphold the safe storage law. The Court also could easily split the case in the opposite direction, concluding that D.C. homeowners should be allowed to store guns unlocked and ready to be used against criminals, but that banning handguns is a reasonable restriction considering that shotguns traditionally have been regarded as excellent weapons for home security.

Whatever decision the Court makes about the validity of the D.C. laws, the most important thing the Court will do is set the legal standard that governs future challenges to gun control laws. The vast majority of the American people oppose complete bans on guns, but support reasonable restrictions. By approaching the Heller case in a spirit of conciliation and compromise rather than extremism, the Court can make the decision a victory for everyone, affirming the validity of reasonable regulations while respecting the interests of gun owners.

Allen Rostron is an Associate Professor at the University of Missouri – Kansas City School of Law and a former senior staff attorney for the Brady Center to Prevent Gun Violence. He is the author of “Incrementalism, Comprehensive Rationality, and the Future of Gun Control,” appearing in the next issue of the Maryland Review. It looks at the D.C. gun case in more detail, as well as at other recent gun control controversies such as the Virginia Tech shootings and seizures of guns after Hurricane Katrina.