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Does the Second Amendment Allow “Reasonable” Gun Regulation?-Bumped

Update: In light of today’s SCOTUS argument in Heller (the DC gun ban case), I’ve bumped this older post, which goes to the issues at hand.

News report:

The Supreme Court appeared ready Tuesday to endorse the view that the Second Amendment gives individuals the right to own guns, but was less clear about whether to retain the District of Columbia’s ban on handguns.

So here’s the old post:

Robert Levy is worked up:

If you think the District of Columbia’s ban on all functional firearms in all homes is a reasonable regulation under the Second Amendment, you’ll love the friend-of-the-court brief filed by the Bush administration in D.C. v. Heller, now before the Supreme Court.

The Department of Justice’s (DOJ) previously stated position is that the Second Amendment secures a right of individuals not restricted to militia service. But astonishingly, the Justice Department now recommends an elastic standard for determining whether a handgun ban is reasonable. According to the DOJ, the courts should consider the nature and functional adequacy of available alternatives. ...

In effect, a conservative administration has thrown a lifeline to gun controllers. Following the DOJ blueprint, they can pay lip service to an individual right while simultaneously stripping it of any real meaning. After all, if the D.C. ban can survive judicial scrutiny, it is difficult to imagine a regulation that would not.

The proper standard of review under the Second Amendment is what the courts have termed strict scrutiny. Government must justify its restrictions by showing that they are narrowly tailored to satisfy a compelling governmental interest. That’s a tough test, but not fatal. Traditionally, the court has strictly scrutinized all regulations that infringe on fundamental rights deeply rooted in the nation’s history and traditions. Virtually all of the Bill of Rights qualifies, and the right to keep and bear arms is no exception.

HT: Glenn Reynolds, who opines that: “The Republicans don’t need this now.”

I wonder if the DOJ has read my friend and UCLA law colleague Adam Winkler’s article, Scrutinizing the Second Amendment, in which Winkler argues that:

The lively debate over the meaning of the Second Amendment has focused on the question of whether the amendment protects a right of individuals to possess arms or a collective right of states to maintain militias free from federal interference. Over the past few years, the individual-rights view has won over at least one federal circuit court and has become the official position of the Bush Administration’s Department of Justice. Mostly overlooked in the Second Amendment literature however is the important question of what standard of review would apply to laws burdening the right to bear arms under the individual-rights reading. This lack of attention may be due to the assumption that strict scrutiny would necessarily apply because the right is fundamental or because it is located in the Bill of Rights. In this article, I challenge that assumption and consider the arguments for a contrary conclusion: that the Second Amendment’s individual right to bear arms is appropriately governed by a deferential, reasonableness review under which nearly all gun control laws would survive judicial review. My discussion is informed by the example of state constitutional law, where the individual right to bear arms is already well established. Forty-two states have constitutional provisions guaranteeing an individual right to bear arms and, tellingly, every state to consider the question applies a deferential reasonable regulation standard in arms rights cases. No state applies strict scrutiny or any other type of heightened review to gun laws. Since World War II, the state courts have authored hundreds of opinions using the reasonable regulation test to determine the constitutionality of all sorts of gun control laws. All but a fraction of these decisions uphold gun control laws as reasonable measures to protect public safety. If the federal courts follow this universal practice of the state courts and apply the reasonable regulation standard, nearly all gun control laws will survive judicial review. Moreover, I argue, even if the federal courts decide to apply strict scrutiny, most weapons laws are still likely to be upheld. If so, then any eventual triumph of the individual-rights reading of the Second Amendment is likely to be more symbolic than substantive.

I have no dog in this fight, being something of a Second Amendment agnostic. Suffice it then to say that if the SCOTUS decides to adopt the DOJ view as set out by Levy, Winkler’s analysis provides a great roadmap for such a decision.