In testimony this week before members of the Senate Judiciary Committee, Harvard law school professor Laurence Tribe, an influential liberal academic and former teacher of President Barack Obama, told lawmakers that the Assault Weapons Ban of 2013 introduced last month by Sen. Diane Feinstein (D-Calif.) “clearly passes constitutional muster.”
To buttress that sweeping statement, Tribe sought assistance from a surprising ally: Robert Levy, the libertarian lawyer who spearheaded the legal challenge to Washington, D.C.’s handgun ban that resulted in the Supreme Court’s 2008 ruling in District of Columbia v. Heller. In that landmark case, Justice Antonin Scalia’s majority opinion held that the Second Amendment secures an individual right “to use arms for the core lawful purpose of self-defense.”
So what was the attorney behind Heller doing as part of Tribe’s confident case for new gun control? In his testimony, Tribe pointed to a recent Washington Post interview where Levy discussed the scope of the Second Amendment in light of the Newtown school shooting. According to Tribe’s summary, “Even Roberty Levy...concedes that bans on high capacity magazines and assault weapons almost certainly do not infringe the Second Amendment rights he successfully fought to vindicate in court.”
I also happened to read Levy’s Washington Post interview, so I was a little surprised to find Tribe citing it so favorably in his congressional testimony. That’s because while Levy did acknowledge that various firearm regulations could survive under Heller, he conceded nothing resembling Tribe’s broad assertion about gun control’s constitutionality.
Feinstein’s bill, for example, would limit the capacity of ammunition-feeding magazines to 10 rounds. Yet in his Post interview, Levy clearly stated that “a ban on any size of less than 20 rounds would meet with great, great resistance” in court. As Levy explained, “a significant number of existing firearms are configured for 12- to 19-round magazines,” thereby putting Feinstein’s 10-round limit in direct conflict with the Supreme Court’s holding in Heller, which said that the Second Amendment protects the right to possess weapons for self-defense that are “in common use.” Levy did say that “a ban on magazines of 20 rounds and above seems to me to be reasonable,” but that’s a 10-round difference from Feinstein’s proposal and in direct contradiction to Tribe’s testimony.
As for assault weapons, Levy noted that for any ban on so-called assault weapons to survive judicial review under Heller, it would have to be limited to "dangerous and unusual" weapons “not in common use.” And as he explained in the interview, “There are, of course, millions of these so-called assault weapons, and they’re used by millions of Americans for all sorts of things, including hunting, self-defense, target shooting, even the Olympics.” Feinstein’s bill would ban those weapons, though as Levy made clear, Heller recognizes the right to own such commonly-used firearms for self-defense purposes. So much for a bill that “clearly passes constitutional muster.”
A closer look at the rest of Tribe’s testimony reveals other substantial problems.
Consider his take on how the courts should handle most gun control cases. “Because few public responsibilities are as important to good government as legislating to secure public safety,” Tribe declared, “jurists should not casually give the amendment an expansive scope nor unduly scrutinize reasonable firearms regulations.”
But how are the courts supposed to determine if a regulation is reasonable or not without scrutinizing it first? Indeed, the whole point of judicial review is to ferret out whether the government has overstepped its limits or trampled on somebody’s rights. To say that jurists should not “unduly scrutinize” a “reasonable” regulation is to grant lawmakers a blank check and turn the courts into a rubber stamp. That was the position taken towards gun control in the decades before Heller vindicated the Second Amendment’s core membership in the Bill of Rights. Tribe’s approach would have the courts turn back the clock on that rights-expanding victory.
The Second Amendment is entitled to much more legal respect than that, especially from the president’s old law professor.