After Heller, Reasonable Gun Control?

Randy Barnett posting at The Volokh Conspiracy early this morning, looks past yesterday's decision toward applying Heller beyond the District of Columbia.

So What Gun Regulations Are Reasonable? Perhaps the question most commonly asked by reporters about yesterday's decision in Heller, is how it will affect the constitutionality of other gun laws. I believe Justice Scalia signaled that regulations short of a ban should be scrutinized the way we do "time, place, and manner" regulations of speech when he equated the Second Amendment with the First: "There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not."

He follows this with a discussion of construing the Second Amendment rights analogously to First Amendment rights.

I would like to suggest a different tack.


Justice Scalia makes this interesting point in his opinion.

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally loyal purposes, such as self-defense within the home.

One could consider that any post Heller analysis of a governmental restriction on possession of a firearm must get at the issue of whether that restriction results in a degradation of the right of an individual to defend himself at home. It would seem that a significant fee for a gun license would tend to be like a poll tax, depriving a poor individual of access to self defense. A ban on inexpensive hand guns, "Saturday night specials", would do the same.

A ban on semi-automatic weapons would put an individual at a disadvantage against a criminal invader with an illegal semi or fully automatic weapon. DC law now bans any hand gun that does or could be modified to accept a clip of more than 12 bullets. Any significant license restriction beyond qualifying for the purchase would act in a way to reduce some individual's ability to have arms for self defense.

Indeed the reaction of DC officials to Heller were reported in the Washington Post.

As if to underscore the point, D.C. officials, who expressed disappointment with the ruling, vowed to replace the now-voided gun ban with strict handgun regulations, raising the possibility of further litigation.

Other comments of D.C. officials reported in the Washington Post included:

"We're going to craft comprehensive legislation," D.C. Council Chairman Vincent C. Gray (D) said at a news conference with Fenty, Police Chief Cathy L. Lanier, interim D.C. Attorney General Peter Nickles and other council members.

"We're going to have the strictest handgun laws the Constitution allows," Gray said.

Officials said the District's handgun ban, as well as certain restrictions on rifle and shotgun possession that were also ruled unconstitutional, will remain in effect for at least three weeks, until a lower court formally issues an injunction based on yesterday's ruling. In the meantime, Fenty said, the D.C. police will draft new regulations on firearms ownership in keeping with the Supreme Court decision.

The District has several other laws about gun possession, and the Fenty administration began reviewing its options while awaiting the court's decision.

In a move that could rile supporters of yesterday's ruling, Nickles said the District will continue to enforce a separate decades-old D.C. ban on the possession of most clip-loaded semiautomatic handguns, which are popular with gun enthusiasts.

That regulation, which outlaws machine guns and was not part of the Supreme Court case, defines a machine gun in broad terms, encompassing semiautomatic weapons that can shoot, or be converted to shoot, more than 12 rounds without reloading, officials said. Nickles said that law remains on the books and will be enforced.

"You cannot go out today, if you have a handgun, and carry it around," Nickles said. "This is not open season with handguns. We are going to strictly regulate the registration of handguns. And there will be no authorization of automatics or semiautomatics."

No matter which course of analysis is eventually used, I have little doubt there will be more litigation to ascertain the meaning of Heller.