Why Is the Second Amendment Weaker in New York Than It Is in Texas?
Rudy Giuliani's recent statement about the Second Amendment in New Hampshire, video of which Dave Weigel posted earlier today, is the clearest summary of his position I've heard so far. But I still have a few questions:
Giuliani says the Second Amendment protects an individual right to bear arms, but that does not mean all forms of gun control are unconstitutional. Just as some restrictions on speech (a ban on fraudulent advertising, say, or time, place, and manner rules for political rallies) are consistent with the First Amendment, some restrictions on gun possession and/or use are consistent with the Second Amendment. So far, so good. But then Giuliani says that what counts as "reasonable limitations" on Second Amendment rights varies from place to place, depending on local conditions. Presumably he means that a city with a serious homicide problem can more easily justify stringent gun controls than a city with hardly any crime. But the main example he cites is Texas vs. New York state, a comparison where the relevant difference appears to be cultural rather than criminological, since big cities in both states have comparable problems with violent crime. I don't see why the fact that Texans are more inclined to support gun rights than New Yorkers are should make a difference in the constitutional analysis.
And if variations in crime problems are the main justification for variations in gun control across jurisdictions, it's puzzling that Giuliani says he agrees with the U.S. Court of Apeals for the D.C. Circuit that Washington's gun ban violates the Second Amendment. D.C. consistently ranks near the top among cities with the highest homicide rates, and its gun law is only somewhat stricter than New York City's, which Giuliani supports.
Giuliani also seems confused about which aspects of the law the D.C. Circuit ruled unconstitutional. He refers twice to restrictions on "concealed weapons" (i.e., guns carried in public) that were found to be excessive, when the decision actually dealt with the rules that make it legally impossible for the vast majority of residents to keep guns in their homes for self-defense.
