Your Right to Bear Arms

Bill Steigerwald
Monday, June 30, 2008

Constitutionalists everywhere cheered the Supreme Court's decision on Thursday, June 26, affirming that the Second Amendment protects the right of individuals to bear arms. The 5-4 vote in District of Columbia v. Heller struck down Washington's super-strict ban on handguns and ended decades of debate about whether the Framers meant to constitutionally protect the gun rights of all individuals or only those who were members of militias.

No one was happier on Thursday morning than Bob Levy, the senior fellow in constitutional studies at the Cato Institute. He spent a lot of his own money and five years of careful legal plotting to make sure Heller made it to the high court. I talked to him by telephone from his office in Washington shortly after the decision was announced:

Q: In layman’s terms, what does today’s ruling mean?

A: For residents of Washington, D.C., if they want a handgun, they can go down now and apply to register one and the D.C. government is obligated to give them a registration and a license to carry that gun in their own home and use it if the occasion arises where they need to defend themselves. So that’s good news for the people of Washington, D.C.

Q: In broad constitutional terms, what does this do?

A: It means that a majority of the Supreme Court has declared unequivocally that the Second Amendment secures an individual right, not necessarily one that has to be exercised in the context of militia service. That will mean that nationwide -- once it is determined that the Second Amendment applies to the states, and that question was not at issue in our case because Washington, D.C., is not a state -- oppressive gun laws like the one in Washington will not be permissible under the U.S. Constitution.

Q: How happy are you with the decision?

A: Well, it’s 154 pages and I must say we’ve just gotten a copy. So I haven’t had a chance to look through it. All I know is what Justice Scalia said in court and what Justice Stevens said in the way of summarizing his dissent. From what I could glean, the majority of the court, and of course that’s what matters, has adopted all of the arguments that we put forth in our brief -- arguments by the way that are supported by law scholars across the ideological spectrum, from left to right.

So we’re very pleased with what the court had to say. The court couldn’t have been clearer. There’s no ambiguity. It is quite precise. And it does indicate that there is an individual right and it encompasses not just militia service -- that’s one purpose, but not the only purpose -- but also such things as self-defense, providing your family with food because you want to use weapons for hunting, and a number of other uses that might be permissible. The Second Amendment secures a broad-based individual right.

Q: Is there anything that you’ve seen that disappoints you?

A: I would have liked to have seen -- and I’m not sure, again, because I haven’t thoroughly examined the opinion -- the court say that all future reviews of gun-control regulations would be rigorously scrutinized by the court and that the court would impose what legal scholars call “strict scrutiny.” I don’t think the court quite went that far. But it did say that the D.C. gun ban wouldn’t pass any of the levels of review that the court has historically imposed upon enumerated rights that are set out in the Constitution. So that’s good news. I’m not sure it went as far as I would have liked to have seen the court go, but we’ll take it. It’s perfectly good enough.

Q: In the dissenting opinion there was concern this would endanger the constitutionality of other gun laws across the country. Do you think that is likely?

A: I hope it’s likely. There are some gun laws across the country that should be endangered. But the majority was quite clear in saying that certain gun regulations are perfectly OK. You can keep guns away from kids. You can keep guns away from felons and from people who are deemed to be crazy. You can stop some types of weapons from being kept and from being borne. Some concealed-carry restrictions might be permissible. So while some regulations will be accepted, other regulations will not be. There are a number of cities that have gun bans that are pretty much the same as Washington, D.C., and they will be at risk -- and I’m happy to say that they will be at risk.

Q: My boss, Colin McNickle, is way ahead of you. He’s already on Page 57 of the opinion ….

A: He hasn’t been talking to guys like you all day! (laughs)

Q: He thinks this decision is a nearly perfect balance that should make everyone happy -- it affirms individual gun rights but still allows for reasonable regulations.

A: Again, from what I have been able to glean from the opinion, it is something that we can all live with, we can all be happy with it. And it does indicate that the court -- for the first time in 70 years -- has given some meaning to the Second Amendment, a provision that was ratified in 1791, and which meant pretty much what the Framers intended it to mean until U.S. v. Miller, the case in 1939, which was misinterpreted by courts across the country to suggest that you could only use guns in the context of militia service. The Supreme Court finally put that to rest.

Q: Do you consider this a historic case?

A: Yes, I do think it is historic. For seven decades we’ve been living under a fog. The fog has now been lifted by this case, and I am happy to have been part of it.

Q: You played a major role in getting this case to the Supreme Court. It sounds like your efforts paid off.

A: Yes. I think so. I think the court still has to resolve whether or not the regulations will be applicable to the states -- I think that determination will be made very quickly. It still has to put some flesh on the skeletons so we know which regulations will be permitted and which won’t be permitted. But this decision establishes the foundation and the framework. And it’s a darn good start. So we’re very happy with it.