If
courts made their decisions based on public opinion, the case that
the U.S. Supreme Court will hear today on the District of Columbia’s
handgun ban would seem to be easy to decide. The polls and the sheer
number of those filing amicus briefs support an individual right to
owning guns. Yet, the Justice Department’s brief, while technically
also supporting an individual right, has made this debate much more
complicated and, for the first time in American history, even compelled
a vice president to file his own brief.
A Gallup poll in
February found that 73 percent of Americans believe that Second
Amendment protects an individual right. On top of that, 305 members of
Congress, 31 states, and the Department of Justice all make the same
claim. Support is bipartisan. On the other side, only a minority of
Democrats — 18 members of congress and attorney generals from five
states — signed briefs arguing that it isn’t an individual right. Even among presidential candidates, Hillary Clinton, John McCain,
and Barack Obama all reach the conclusion that there is an individual
right to owning guns. Prominent liberal Democratic legal academics such
as Akhil Amar, Sanford Levinson, and Laurence Tribe have reached
similar conclusions.
Perhaps all this is not surprising given
that the Second Amendment is part of the Bill of Rights, and everyplace
else in the Constitution that discusses “the right of the individual”
the Supreme Court has consistently interpreted this phrase to mean
precisely what it seems to mean, that an individual right, not the
right of the government, is protected. Even if there were any remaining
doubt, the debate over the 14th Amendment, which applies the Bill of
Rights to the states, made it clear that Congress wanted to protect
blacks against Southern states that were trying to disarm them after
the Civil War.
Yet, all that agreement hides a very significant
difference. The debate today will likely be over what protection is
given this individual right.
Some, such as the vice
president, the 305 members of Congress, and the 31 states, want to
treat the Second Amendment like the rest of the Bill of Rights,
requiring the same hurdles for the government to justify that a
regulation is “reasonable.” Others, such as the Bush Department of
Justice, argue that an “unquestionable threat to public safety” from
unregulated guns requires that a lower standard must be adopted.
Strongly hinting that D.C.’s handgun ban and requirement that long guns
always be kept locked and unloaded could be upheld under this lower
standard.
But this public-safety argument faces serious
problems. After the ban went into effect in early 1977, D.C.’s murder
rate rose dramatically. Only in one year since the ban has the murder
rate gotten as low as it was in 1976. But it is not just that D.C.’s
murder rates rose, they rose dramatically relative to other cities. In
the 29 years that we have data after the ban, among the 50 largest
cities, D.C.’s murder rate was either first or second for 15 years and
fourth for another four years. By contrast, in 1976 D.C.’s murder rate
ranked 15th. Over all, violent crime also soared.
But these
problems don’t just represent something unique about D.C. Chicago
experienced an increase after its ban in 1982. Even island nations from
Ireland to Jamaica, whose borders are relatively easy to control, have
experienced large increases in murder and violent crime after gun bans.
For example, after handguns were banned in 1997, the number of deaths
and injuries from gun crime in England and Wales increased by an
amazing 340 percent in the seven years from 1998 to 2005.
There
is real irony about the Justice Department argument. It is the old, oft
derided “slippery slope” argument so often used by opponents of gun
control. The Justice Department worries that if the government can’t
ban handguns, it won’t be able to ban private ownership of machine
guns. The specter of machine guns is raised ten times in their brief.
No
one expects the court to completely end gun control any more than the
First Amendment’s “Congress shall make no laws” has prevented the
passage of campaign-finance regulations. But a lot is at stake today
before the Supreme Court. If D.C.’s handgun ban is upheld, the Second
Amendment will hold little practical meaning. Even if the ban is struck
down, the decision will likely only rule out the most extreme of
regulations: a complete ban on handguns. |
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