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Dellinger was only a few minutes into his presentation when Justice Anthony Kennedy—considered to be the swing vote, in this case as in many others—buoyed the Levy team by suggesting the Second Amendment “supplemented” the militia “by saying there’s a general right to bear arms quite without reference to the militia either way,” and talking of how the Founding Fathers’ attitudes about guns were born from a frontier experience, with worries about personal, not merely civil and political, defense from hostile crooks, Indians, wolves, and grizzly bears.
At the same time, Kennedy made it clear that he believed the Second Amendment right to bear arms was, like other rights in the Constitution, subject to regulation. Even with the historical examples from early America and England, he saw that by some of those laws, “You couldn’t conceal a gun and you also couldn’t carry it, but yet you had a right to have it.”
Dellinger argued that the legal right in D.C. to own (yet not, by the letter of the law, ever use in the home) long guns obviated any constitutional difficulties that might exist in the handgun ban. Chief Justice Roberts, straight out of the Heller team’s playbook, made the First Amendment analogy, asking Dellinger: Would it be constitutionally acceptable for a municipality to ban books as long as newspapers—a viable substitute source of expression—were still legal?
When it was Gura’s turn, he was asked to explain the meaning of the militia reference. He said it was to describe a purpose of the right of the people that the Amendment protected. He angered some in the hardcore gun rights movement when he concluded that the weapons protected by the Amendment should be ones that combined a militia purpose and a normal civilian purpose, since people were expected to supply them from their own everyday collection of weapons they typically used. Gura did not want to be pressed into arguing that machine guns should have unlimited Second Amendment protection.
He did ably defend the idea that personal self-defense was built into weapons rights during the Founding era. He granted that reasonable licensing doesn’t necessarily violate the Second Amendment. He also granted that empirical considerations about such matters as murder rates could play into policymakers’ decisions about what made for a reasonable gun regulation—but added that the very purpose of a constitutional right is to make sure that not everything is up for grabs just because a legislature thinks regulations are “reasonable.”
Many Internet gun-rights activists accused Gura of selling out on the machine gun issue. “We wanted to win,” Gura responds. “And you win constitutional litigation by framing issues in as narrow a manner as possible. I could not tell the justices honestly that I hadn’t thought about machine guns. ‘Gee, I don’t know, maybe…’ That’s a bunch of crap. I would have lost credibility, it would have been obviously a lie and I’m not going to lie to the Court, and I would have lost the case.”
Justice Antonin Scalia’s majority opinion said everything that Gura said, and that a generation of Second Amendment scholars had been saying for decades. The Second Amendment protected an individual right. The prefatory clause did not restrict the operative one; the protected right went beyond militia service. The relevant contemporaneous debates and state constitutions at the time of the Founding supported this interpretation. The Miller precedent was about the type of weapon, not the people to whom the right accrued.
Still, the decision wasn’t everything devotees of gun rights might have hoped for. Scalia also wrote: “The Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Heller, then, by no means settled the entire gun control debate. It did instantly generate a series of lawsuits, many sponsored by the NRA, against jurisdictions with gun bans similar to D.C.’s, including Chicago (hit with two suits) and three of its suburbs. Some Illinois towns have already rescinded their handgun restrictions. Washington, D.C., after months of foot-dragging that prompted Dick Heller to file another lawsuit against the city, has finally allowed its citizens to register, own, and keep loaded in the home both revolvers and semiautomatic handguns.
Still, most gun laws short of total bans will likely survive under the Heller standard, even if it is authoritatively established that the Second Amendment ruling in the case applies to state and local actions. In the near term at least, Heller will heat up the gun debate instead of ending it.
But the case was vitally important to American public policy. One, it normalized within constitutional law the notion that self-defense is a right. Guns can kill, to be sure. But the principle that Heller vindicated was one at the core of Western liberalism, that of self-defense, which is for life. Those who believe in a strong activist government generally do so because they fear the potential savagery of human social life. They just don’t seem to want, with gun control, to allow the individual to do anything about it.
The Heller case was a prime example of how calm, dedicated, and strategic thinking on the part of crusaders for smaller government can achieve real and (probably) lasting victories. Fighting against even those who should have been their staunchest allies, Levy and his team of libertarian lawyers watched the zeitgeist, crafted a smart (though risky) strategy, and won.
Our legal system and our Constitution allowed them to do something about D.C.’s gun laws, even as D.C.’s gun laws did not allow its citizens to do much about their own safety. Because this group of people acted to preserve the right to self-defense, the rest of America has seen affirmed at least the basics of that right. The contours of that right to self defense remain to be defined by others who choose to follow in Levy and his crew’s footsteps.
Senior Editor Brian Doherty is the author of Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment, from which this is excerpted. © Copyright 2008 Cato Institute.