Heller Discussion Board: A Toe in the Water

The following post was written by Professor Carl T. Bogus of Roger Williams University School of Law, who was counsel for historians who filed an amicus brief in support of the District of Columbia.  He is the author of numerous articles on the Second Amendment and gun control policy.

Here are a few preliminary observations.

Rehashing the debates over whether the Second Amendment should be interpreted as an individual right or a militia-based right is inevitable, yet the paramount question is: What now?

First, Washington, D.C.’s handgun ban is no longer valid.  That’s got considerable ramifications for public safety.  A careful study that compared the nine year period before the ban was enacted with the nine years following enactment, and then compared what happened in D.C. with the immediately surrounding areas in Maryland and Virginia, found that the handgun ban reduced gun-related homicides by 25% and gun-related suicides by 23 percent.  Colin Loftin, Ph.D., et al., “Effects of Restrictive Licensing of Handguns of Homicide and Suicide in the District of Columbia,” 325 New Eng. J. Med. 1615 (Dec. 5, 1991).   The law did not turn Washington into the Garden of Eden, and crime rates fluctuated, particularly during the last few years of the study when the use of “crack” cocaine was increasing and homicides increased dramatically.  Nevertheless, the effect of the law was both immediate and sustained, and things would have been worse without it.  So a dangerous city is likely to get quickly more dangerous.

What about the rest of the country?  Other than the section of the D.C. law that requires storing guns dissembled or bound by a trigger lock, no other gun regulations – federal, state, or local – are invalidated, at least for the present.  The Court’s decision leaves open the question of whether the Second Amendment applies only against the federal government or whether it will be deemed to be incorporated against the states by the Fourteenth Amendment.  The Court mentions this question in footnote 23.  Reading that two-sentence note for clues about how the Court will eventually decide that issue is sort of like reading the Second Amendment itself: the first section leans one way and the second section leans the other.  All that can be said with certainty is that the note says that this was “a question not presented by this case.”  This is now the next big constitutional issue concerning the Second Amendment.

On a different topic, I read Justice Scalia’s opinion with both great interest and trepidation to see whether he embraced insurrectionist theory, that is, the argument that the Founders adopted the Second Amendment as a check against governmental tyranny.  What’s more repugnant to constitutional democracy and the rule of law – not to mention traditional conservatism – than the idea that the people should be armed to potentially go to war with their own government?  Nonetheless, this theory has animated much of the individual right literature.  Its popularity has undoubtedly disturbed the sleep of giants on both sides of the Atlantic.  Surely, insurrectionism has had both James Madison and Edmund Burke spinning in their graves.

Clearly, Justice Scalia tried to be careful not to expressly embrace insurrectionist theory.  Yet he alludes to it gingerly – a sort of toe in the water.  He writes that “when able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.”  Call me foolish, but I was hoping that the conservative Court would expressly repudiate insurrectionist theory.  Somewhere, Robespierre is smiling.